LEWIS A. HARRY, Jr. v. M. PERKINS, Deputy Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS A. HARRY, Jr.,
Plaintiff-Appellant,
v.
M. PERKINS, Deputy Warden; et al.,
Defendants-Appellees.
No. 17-15427
D.C. No. 4:13-cv-00527-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Lewis A. Harry, Jr., an Arizona state prisoner, appeals pro se from the
district court’s judgment in his action brought under 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) alleging that
prison officials exposed him to environmental tobacco smoke, violated his
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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religious rights, and retaliated against him. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014)
(en banc) (legal rulings on exhaustion); Shakur v. Schriro, 514 F.3d 878, 883 (9th
Cir. 2008) (summary judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th
Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Harry’s claims premised on alleged
breaches of private settlement agreements reached in Harry’s prior actions because
failure to comply with the terms of a private settlement agreement, absent more, is
not enforceable in federal court. See Hajro v. U.S. Citizenship & Immigration
Servs., 811 F.3d 1086, 1099 (9th Cir. 2016) (“[A] district court does not have the
inherent power to enforce the terms of a settlement agreement under the doctrine of
ancillary jurisdiction.”); see also 18 U.S.C. § 3626(c), (g)(1), (g)(6) (distinguishing
between “consent decrees” and “private settlement agreements” in actions
concerning prison conditions, and explaining that “private settlement agreements”
are not enforceable in federal court).
The district court properly granted summary judgment on Harry’s First
Amendment and RLUIPA claims relating to his religious diet because Harry failed
to raise a genuine dispute of material fact as to whether the required interview with
a chaplain substantially burdened his exercise of religion and because the
requirement reasonably related to a legitimate penological interest. See Walker v.

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Beard, 789 F.3d 1125, 1134 (9th Cir. 2015) (elements of a RLUIPA claim);
Shakur, 514 F.3d at 885-88 (analyzing § 1983 claim concerning denial of inmate’s
request for Kosher diet under four part test stated in Turner v. Safley, 482 U.S. 78
(1987)); Warsoldier v. Woodford, 418 F.3d 989, 994-96 (9th Cir. 2005) (explaining
that prisoner has initial burden to demonstrate that prison policies “constitute a
substantial burden on the exercise of his religious beliefs” and that prison policy
imposes substantial burden when it “intentionally puts significant pressure on
inmates . . . to abandon their religious beliefs”).
The district court properly granted summary judgment on Harry’s First
Amendment and RLUIPA claims relating to his religious property because Harry
failed to raise a genuine dispute of material fact as to whether limiting the number
of books prisoners may possess substantially burdened Harry’s exercise of religion
and because the regulation reasonably related to a legitimate penological interest.
See Walker, 789 F.3d at 1134; Shakur, 514 F.3d at 885-88; Warsoldier, 418 F.3d at
994-96.
The district court properly granted summary judgment on Harry’s Eighth
Amendment claim against all defendants but Jacobs because Harry failed to raise a
genuine dispute of material fact as to whether these defendants knew of and
disregarded an excessive risk to Harry’s health. See Helling v. McKinney, 509
U.S. 25, 34-36 (1993) (setting forth evidence needed to prevail on a claim of

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deliberate indifference based on exposure to second-hand smoke).
The district court properly granted summary judgment on Harry’s retaliation
claims against all defendants but Lundberg because Harry failed to raise a genuine
dispute of material fact as to whether his complaints were the motivating factor
behind the alleged retaliation and whether the allegedly retaliatory conduct was
unrelated to legitimate penological goals. See Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the prison
context); Pratt v. Rowland, 65 F.3d 802, 807-08 (9th Cir. 1995) (to prevail on a
retaliation claim, a plaintiff’s speech must be the motivating factor behind the
retaliatory conduct).
The district court properly granted summary judgment on Harry’s retaliation
claim against Lundberg, and his Eighth Amendment claim against Jacobs premised
on Harry’s exposure to unreasonably high levels of environmental tobacco smoke,
because Harry failed to exhaust his administrative remedies in a proper manner.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (requiring proper exhaustion, which
“means using all steps that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits)” (citation and internal quotation marks
omitted)).
The district court did not abuse its discretion by denying Harry’s request for
leave to amend the complaint. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir.

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2010) (setting forth standard of review and factors to consider in permitting leave
to amend).
We reject as meritless Harry’s contentions concerning fraud upon the court
and attorney misconduct.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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