FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY L. MERCHANT,

Plaintiff-Appellant,

v.

CORIZON HEALTH, INC.,

Defendant,

KEITH YORDY, Warden; IDAHO 

DEPARTMENT OF CORRECTIONS;

DOES, John/Jane I–X; Whose true 

identities are presently unknown,

Defendants,

and

CORIZON, LLC,

Defendant-Appellee,

JOHN MIGLIORI, M.D.; DAVID 

AGLER, M.D.,

Defendants-Appellees.

No. 19-36093

D.C. No.

1:17-cv-00524-

BLW

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted December 10, 2020

Seattle, Washington
2 MERCHANT V. CORIZON HEALTH

Filed April 2, 2021

Before: M. Margaret McKeown, Danielle J. Hunsaker, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Hunsaker

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s exclusion of 

expert evidence under Federal Rule of Civil Procedure 

37(c)(1), and summary judgment in favor of prison officials 

in an action alleging defendants were deliberately indifferent 

to plaintiff’s medical needs.

The panel held that the district court did not err by 

excluding plaintiff’s expert under Rule 37(c)(1) because 

plaintiff repeatedly failed to meet his disclosure obligations, 

as set forth in Rule 26(a)(2). The district court reasonably 

concluded that plaintiff’s failures were not substantially 

justified or harmless. The panel further noted that plaintiff 

had never moved the district court for a lesser sanction.

Because the district court properly excluded plaintiff’s 

expert witnesses, it did not err in granting summary 

judgment to defendants because plaintiff failed to 

demonstrate a genuine issue of material fact for trial. 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MERCHANT V. CORIZON HEALTH 3

Moreover, the district court did not err in holding that 

plaintiff failed to exhaust his administrative remedies 

because he failed to file an Offender Concern Form—the 

first step in Idaho Department of Corrections’ three-part 

grievance system set forth in Standard Operating Procedure 

316.02.01.001. The panel declined to construe plaintiff’s 

Health Services Request as a properly filed grievance.

COUNSEL

Jason R.N. Monteleone (argued), Johnson & Monteleone 

L.L.P., Boise, Idaho, for Plaintiff-Appellant.

Dylan A. Eaton (argued) and Andrew R. Alder, Parsons 

Behle & Latimer, Boise, Idaho, for Defendants-Appellees.

OPINION

HUNSAKER, Circuit Judge:

This case demonstrates that flouting generally applicable 

procedural rules—the rules of the game that all parties are 

entitled to rely upon and expect courts to enforce—has 

consequences. Sometimes even case-ending consequences.

Plaintiff-Appellant Gary Merchant is an Idaho prisoner. 

He alleges that the Idaho Department of Corrections (IDOC) 

and its medical provider, Corizon Health, Inc. (Corizon), 

were deliberately indifferent to his medical needs and acted 

with negligence. The primary issue presented in this appeal 

is whether the district court erred by excluding Merchant’s 

expert witnesses under Federal Rule of Civil 

Procedure 37(c)(1), which was case dispositive, because 
4 MERCHANT V. CORIZON HEALTH

Merchant did not properly disclose his experts under 

Rule 26(a)(2). We conclude the district court did not err 

because Merchant repeatedly failed to meet his disclosure 

obligations, the district court reasonably concluded 

Merchant’s failures were not substantially justified or 

harmless, and Merchant never moved for a lesser sanction. 

We also conclude the district court correctly found that 

Merchant failed to exhaust his administrative remedies as 

required by the Prison Litigation Reform Act (PLRA).

I. BACKGROUND

Merchant alleges that he swallowed a razor blade to 

force his transport to a hospital because Corizon was 

providing him inadequate medical care. Several hours after 

arriving at the hospital, doctors diagnosed a necrotizing 

fasciitis infection in Merchant’s left leg and determined that 

an above-the-knee leg amputation was necessary to save his 

life. Merchant alleges that he lost his leg because Corizon 

did not timely diagnose and treat his leg infection.

A. Corizon’s Medical Care

In the weeks preceding Merchant’s orchestrated 

hospitalization, he submitted several Health Services 

Requests (HSRs) to Corizon. On January 22, 2016, he 

submitted an HSR reporting a Chron’s Disease “flare-up” 

and requesting Prednisone. Dr. John Migliori, a Corizon 

employee, assessed Merchant, prescribed Prednisone, and 

directed him to take Humira every two weeks to manage his 

Chron’s-related pain. Merchant submitted another HSR a 

week later, reporting elbow pain and bruising on his right 

arm. A Corizon nurse determined that his vitals were normal, 

wrapped his elbow, and recommended icing.
MERCHANT V. CORIZON HEALTH 5

Merchant first complained of leg pain in an HSR dated 

February 2. He requested “urgent” medical care due to 

swelling in his left leg, which he described as twice the size 

of his right leg. Merchant submitted another HSR the next 

day and asked for a pair of compression socks to control 

swelling in both legs. A Corizon nurse evaluated Merchant 

and observed “+4 pitting edema” on both legs and scheduled 

Merchant for an appointment with Dr. Migliori the following 

day, February 4. However, Merchant “refuse[d] to be seen” 

on February 4 and “[was] angry for unknown reasons.” 

Dr. Migliori nonetheless reviewed Merchant’s HSRs and 

prescribed Lasix (a diuretic) to address the leg swelling. On 

February 5, Merchant requested an adjustment to his Lasix 

prescription, but the next afternoon he again refused to see 

Dr. Migliori. That night, February 6, Merchant told a prison 

official that he needed emergency medical care; he 

complained of diarrhea and said his swollen ankles 

prevented him from walking. After consulting with the oncall doctor, a Corizon nurse determined that Merchant did 

not require emergency care and instructed him to fill out an 

HSR form. An hour later, Merchant swallowed a razor blade 

and was transported to the hospital.

B. Hospital Medical Care

Around 12:30 a.m. on February 7, Merchant told one of 

the emergency room doctors that “he’[d] been experiencing 

a Crohn’s flare-up . . . and just couldn’t take the pain 

anymore.” He complained of “right-sided abdominal pain,” 

but he did not report any leg pain. A physical examination 

revealed that Merchant had a low-grade fever and that his 

left calf was red, swollen, and bruised. An examination 

around 3:00 a.m. revealed that Merchant had an elevated 

white blood count, “which is suspicious for an infection.”
6 MERCHANT V. CORIZON HEALTH

The emergency room doctors admitted Merchant to the 

intensive care unit (ICU) based on several concerns. They 

reported that Merchant: (1) was on Coumadin (an anticoagulant) and at risk for perforation of his intestines 

because he ingested a razor blade; (2) had atrial fibrillation 

with rapid ventricular response; and (3) was experiencing a 

Chron’s flare-up. Merchant was not admitted for leg 

swelling, and when he was transferred to the ICU at 

5:22 a.m., he had not been diagnosed with an infection. It 

was not until several hours later that Merchant was 

diagnosed with a necrotizing fasciitis infection in his left leg 

and doctors determined that an above-the-knee leg 

amputation was necessary.

C. District Court Proceedings

Merchant sued IDOC, Corizon, and several Corizon 

employees (collectively, Corizon)1 alleging that they acted 

with deliberate indifference to a substantial risk of serious 

harm in violation of 42 U.S.C. § 1983. He also brought two 

negligence claims against Corizon—medical malpractice 

and negligent retention, training, and supervision—under 

Idaho law. Corizon pleaded failure to exhaust under the 

PLRA as an affirmative defense.

In March 2019, the district court directed Merchant to 

disclose expert witnesses by May 15 and rebuttal-expert 

witnesses by July 22. The district court subsequently 

extended the rebuttal-expert-disclosure date to August 16 

after Merchant requested an extension to accommodate his 

1 Merchant also sued the warden of the prison but agreed to 

voluntarily dismiss those claims.
MERCHANT V. CORIZON HEALTH 7

counsel’s three-week vacation. Merchant served the 

following expert disclosures:

• May 17: Two days past the deadline, Merchant 

disclosed Dr. Madsen as his only retained expert 

witness. The disclosure failed to include a written 

expert report as required by Federal Rule of Civil 

Procedure 26(a)(2)(B).

• May 20: Five days past the deadline, Merchant 

disclosed Dr. Madsen’s expert report, as well as

ten non-retained expert witnesses. In his nonretained-expert disclosure, Merchant did not 

summarize the facts and opinions to which those 

experts would testify as required by Rule 

26(a)(2)(C)(ii).

• July 15: 61 days past the deadline, Merchant 

disclosed two more non-retained expert 

witnesses.

• August 16: Merchant disclosed three rebuttal 

experts—Dr. Madsen, Dr. Spellberg, and 

Dr. Ginchereau—and several non-retained 

expert rebuttal witnesses. Merchant indicated 

that Dr. Madsen’s rebuttal testimony “was set 

forth in her initial disclosure” and included only 

Dr. Ginchereau’s expert report. The non-retained 

expert disclosures did not summarize the facts 

and opinions to which those experts would testify 

as required by Rule 26(a)(2)(C)(ii).

• August 21: Five days after the rebuttal-disclosure 

deadline, Merchant disclosed Dr. Spellberg’s 

expert report.
8 MERCHANT V. CORIZON HEALTH

• September 26: Merchant filed an affidavit from 

Dr. Dau who was listed as a non-retained expert 

in his May 20 and August 16 disclosures. Dr. Dau 

opined on the cause of Merchant’s infection.

Given Merchant’s repeated failure to comply with his 

disclosure obligations, Corizon moved in limine to exclude 

Merchant’s expert witnesses under Federal Rule of Civil 

Procedure 37(c)(1). Corizon also moved for summary 

judgment on all claims, arguing that Merchant’s claims 

failed as a matter of law without expert testimony regarding 

the standard of care and causation and that he failed to 

exhaust his administrative remedies under the PLRA. In 

response, Merchant argued that his five-day delay in 

disclosing his experts did not prejudice Corizon and that his 

untimeliness was substantially justified because his attorney 

was “out of the country.” He also asserted that he exhausted 

his administrative remedies by submitting several HSRs 

before his hospitalization.

The district court heard argument on both motions and 

found that Merchant had properly disclosed only one rebuttal 

expert witness—Dr. Ginchereau. The district court also 

found that Merchant’s noncompliance was not substantially 

justified or harmless and concluded that Rule 37(c)(1) “is 

really a self-executing automatic sanction” that excludes 

improperly disclosed expert evidence absent such a showing.

Regarding Corizon’s motion for summary judgment, the 

district court held that Merchant could not rely on his one 

properly disclosed rebuttal expert to establish his case in 

chief, and without expert evidence, he had established 

neither deliberate indifference nor negligence. Finally, the 

district court determined that the PLRA precluded 

Merchant’s Section 1983 claim because he had failed to 

exhaust his administrative remedies.
MERCHANT V. CORIZON HEALTH 9

II. DISCUSSION

We review a district court’s imposition of a discovery 

sanction for an abuse of discretion, and any factual findings 

related to that sanction are reviewed for clear error. Leon v. 

IDX Sys. Corp., 464 F.3d 951, 957–58 (9th Cir. 2006). 

However, we interpret the Federal Rules of Civil Procedure 

de novo. Republic of Ecuador v. Mackay, 742 F.3d 860, 864 

(9th Cir. 2014). We also review de novo a district court’s 

grant of summary judgment based on a failure to exhaust 

administrative remedies. Albino v. Baca, 747 F.3d 1162, 

1172 (9th Cir. 2014) (en banc).

A. Expert Disclosures

Merchant argues that the district court erred in excluding 

his expert medical evidence on which his claims depend. 

Specifically, he claims that exclusion of his witnesses was 

an unjustifiably harsh sanction considering his de minimis 

violations of Federal Rule of Civil Procedure 26(a)(2)—the 

rule governing expert witness disclosures. We therefore 

review Merchant’s compliance with Rule 26(a)(2) before 

analyzing the district court’s sanction under Rule 37(c)(1).

1. Rule 26(a)(2) Disclosures

Rule 26(a)(2) requires litigants to disclose all expert 

witnesses “at the times and in the sequence that the court 

orders.” Goodman v. Staples The Office Superstore, LLC, 

644 F.3d 817, 827 (9th Cir. 2011). The disclosure of experts 

“retained or specially employed to provide expert testimony 

in the case” must provide, among other things, a signed 

report with “a complete statement of all opinions the witness 

will express and the basis and reasons for them,” as well as 

“the facts or data considered by the witness in forming 

them.” Fed. R. Civ. P. 26(a)(2)(B)(i), (ii). A treating 
10 MERCHANT V. CORIZON HEALTH

physician who is expected to testify regarding opinions 

“formed during the course of treatment” need not submit a 

detailed expert report. Goodman, 644 F.3d at 826. 

Nonetheless, disclosures of non-retained, treating physicians 

must include “(i) the subject matter on which the witness is 

expected to present evidence under Federal Rule of 

Evidence 702, 703, or 705; and (ii) a summary of the facts 

and opinions to which the witness is expected to testify.” 

Fed. R. Civ. P. 26(a)(2)(C); see also Fed. R. Civ. P. 26 

advisory committee’s note to 2010 amendment.

Although Merchant admits he violated Rule 26(a)(2), he 

repeatedly asserts that he missed the initial-disclosure 

deadline by only a few days. This characterization, however, 

is at odds with the district court’s finding that Merchant 

persistently disregarded Rule 26(a)(2) throughout the course 

of discovery—a conclusion supported by the record. To be 

sure, some of Merchant’s disclosures were only five days 

late. But he disclosed other expert evidence 61 and 134 days 

past the deadline. Moreover, Merchant’s non-retainedexpert disclosures neither specified nor summarized each 

witness’s anticipated testimony. And on May 17 and 

August 16, he failed to include an expert report for his 

retained expert witnesses. We therefore reject Merchant’s 

attempt to downplay the extent of his discovery violations 

and hold that the district court did not clearly err in finding 

that Merchant repeatedly failed to comply with 

Rule 26(a)(2).

2. Rule 37(c)(1) Sanctions

The district court sanctioned Merchant by excluding his 

improperly disclosed expert evidence under Federal Rule of 

Civil Procedure 37(c)(1), which provides:
MERCHANT V. CORIZON HEALTH 11

(1) Failure to Disclose or Supplement. If a 

party fails to provide information or identify 

a witness as required by Rule 26(a) or (e), the 

party is not allowed to use that information or 

witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was 

substantially justified or is harmless. In 

addition to or instead of this sanction, the 

court, on motion and after giving an 

opportunity to be heard:

(A) may order payment of the reasonable 

expenses, including attorney’s fees, 

caused by the failure;

(B) may inform the jury of the party’s 

failure; and

(C) may impose other appropriate 

sanctions, including any of the orders 

listed in Rule 37(b)(2)(A)(i)–(vi).

The district court was correct that Rule 37(c)(1) is an 

“automatic” sanction that prohibits the use of improperly 

disclosed evidence. Yeti by Molly, Ltd. v. Deckers Outdoor 

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). As the Rule 

plainly states, litigants can escape the “harshness” of 

exclusion only if they prove that the discovery violations 

were substantially justified or harmless. Id. (citing Fed. R. 

Civ. P. 37(c)(1)). The automatic nature of the rule’s 

application does not mean that a district court must exclude 

evidence that runs afoul of Rule 26(a) or (e)—Rule 37(c)(1) 

authorizes appropriate sanctions “[i]n addition to or instead 

of [exclusion].” Fed. R. Civ. P. 37(c)(1). Rather, the rule is 

automatic in the sense that a district court may properly 

impose an exclusion sanction where a noncompliant party 
12 MERCHANT V. CORIZON HEALTH

has failed to show that the discovery violation was either 

substantially justified or harmless. Yeti by Molly, 259 F.3d 

at 1106–07.

Merchant argues that because the district court excluded 

case-dispositive evidence, this court should consider factors 

traditionally considered in evaluating dismissal sanctions 

under Rule 37(b)(2)(A)(v). Merchant’s argument finds some 

support in our decision in R & R Sails, Inc. v. Insurance Co. 

of Pennsylvania, 673 F.3d 1240, 1246–48 (9th Cir. 2012). 

There, we held that if a Rule 37(c)(1) sanction will “deal[] a 

fatal blow” to a party’s claim, a district court must consider 

(1) “whether the claimed noncompliance involved 

willfulness, fault, or bad faith” and (2) “the availability of 

lesser sanctions.” Id. at 1247. We usually apply these factors 

to Rule 37(b)(2)(A)(v) sanctions of dismissal. See, e.g., 

Henry v. Gill Indus., Inc., 983 F.2d 943, 946, 948 (9th Cir. 

1993); Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 

1990). But R & R Sails held that when excluding casedispositive evidence under Rule 37(c)(1), a district court 

must consider these two factors as part of its “harmlessness 

inquiry.” 673 F.3d at 1247. R & R Sails further held that a 

district court abuses its discretion in excluding casedispositive evidence if it fails to “conduct[] this inquiry” or 

“make the requisite findings.” Id. at 1248.

Although R & R Sails incorporated Rule

37(b)(2)(A)(v)’s two-factor test into Rule 37(c)(1)’s 

harmlessness inquiry, it did nothing to disturb Rule

37(c)(1)’s textual requirement that a party facing sanctions 

under that provision bears the burden of showing that a 

sanction other than exclusion is better suited to the 

circumstances. Rule 37(c)(1) authorizes district courts to 

impose a lesser sanction—one “[i]n addition to or instead of” 

exclusion—“on motion and after giving an opportunity to be 
MERCHANT V. CORIZON HEALTH 13

heard.” Fed. R. Civ. P. 37(c)(1). Accordingly, a 

noncompliant party must “avail himself of the opportunity 

to seek a lesser sanction” by formally requesting one from 

the district court. Vanderberg v. Petco Animal Supplies 

Stores, Inc., 906 F.3d 698, 705 (8th Cir. 2018). Where a 

party does not move for a lesser sanction, however, “the 

party is not allowed to use that information or witness to 

supply evidence on a motion, at a hearing, or at a trial.” Fed. 

R. Civ. P. 37(c)(1). In such circumstances, a district court 

does not abuse its discretion in excluding evidence under the 

plain meaning of Rule 37(c)(1). Vanderberg, 906 F.3d 

at 705; see also Wilson v. Bradlees of New Eng., Inc., 

250 F.3d 10, 21 (1st Cir. 2001). We agree with the Eighth 

Circuit that to require district courts to consider lesser 

sanctions without a motion “would collapse the rule’s 

provision of automatic exclusion of undisclosed evidence 

(except where harmless or substantially justified), with the 

option of alternative or additional sanctions on a party’s 

motion, into an open-ended approach that is divorced from 

the text of the rule.” Vanderberg, 906 F.3d at 705; see also 

Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir. 

2006) (“[T]he plain text of the rule provides that if an 

appropriate motion is made and a hearing has been held, the 

court does have discretion to impose other, less drastic, 

sanctions.” (emphasis added)).

This approach accords with the longstanding principles 

that district courts have “wide latitude” under Rule 37(c)(1) 

and that “the burden is on the party facing sanctions to prove 

harmlessness.” Yeti by Molly, 259 F.3d at 1106–07 (citing 

Wilson, 250 F.3d at 21); see also Benjamin v. B&H Educ., 

Inc., 877 F.3d 1139, 1150 (9th Cir. 2017). As such, if the 

noncompliant party fails to argue harmlessness, a district 

court need not hold a sua sponte hearing on that issue before 

imposing Rule 37(c)(1)’s default sanction. See generally 
14 MERCHANT V. CORIZON HEALTH

Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175 

(9th Cir. 2008). Likewise, if the noncompliant party fails to 

move for lesser sanctions, the district court is not required to 

consider one and does not abuse its discretion in excluding 

evidence where such action is otherwise justified. 

Vanderberg, 906 F.3d at 705.

We recognize that under R & R Sails, when a district 

court excludes case-dispositive evidence under Rule 

37(c)(1), it must consider lesser sanctions as part of its 

“harmlessness inquiry.” 673 F.3d at 1247. In that case, 

however, the noncompliant party moved the district court to 

reconsider its Rule 37(c)(1) sanction. Id. at 1245. And in 

moving for reconsideration, the noncompliant party properly 

“avail[ed] [itself] of the opportunity to seek a lesser 

sanction,” Vanderberg, 906 F.3d at 705. R & R Sails’s lessersanction requirement is thus limited to situations where the 

request for an alternative sanction is presented “on [the 

noncompliant party’s] motion.” Fed. R. Civ. P. 37(c)(1).

Here, Merchant never moved the district court for a 

lesser sanction. Although he objected to exclusion of his 

experts in opposing Corizon’s motion in limine, he neither 

moved for an alternative sanction nor moved for 

reconsideration of the district court’s ruling on Corizon’s 

motion. Therefore, we hold that Merchant failed to trigger R 

& R Sails’s lesser-sanction requirement. Without that 

trigger, the district court did not abuse its discretion in 

imposing Rule 37(c)(1)’s default exclusion sanction.2

2 Even were we to consider the factors that R & R Sails held must be 

addressed as part of Rule 37(c)(1)’s harmlessness inquiry, we still would 

conclude the district court did not err. 673 F.3d at 1247. The excuses 

Merchant’s counsel gave for the disclosure failures were within his 

control, Henry, 983 F.2d at 948, and the district court found that they 
MERCHANT V. CORIZON HEALTH 15

Because the district court properly excluded Merchant’s 

expert witnesses, we further conclude it did not err in 

granting summary judgment to defendants because 

Merchant failed to demonstrate a genuine issue of material 

fact for trial.

B. Exhaustion of Administrative Remedies

We also address Merchant’s objection to the district 

court’s conclusion that his Section 1983 claim failed as a 

matter of law because he failed to exhaust his administrative 

remedies. Before challenging prison conditions under 

Section 1983, a prisoner must exhaust “such administrative 

remedies as are available.” 42 U.S.C. § 1997e(a). The PLRA 

requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 

90 (2006). This standard demands “compliance with [a 

prison’s] deadlines and other critical procedural rules.” Id.

“[T]he defendant in a PLRA case must plead and prove 

nonexhaustion as an affirmative defense.” Albino, 747 F.3d 

at 1171. Once the defendant has made such a showing, “the 

burden shifts to the prisoner to come forward with evidence 

showing that there is something in his particular case that 

made the existing and generally available administrative 

remedies effectively unavailable to him.” Id. at 1172.

Here, Corizon timely pleaded nonexhaustion as an 

affirmative defense and established at summary judgment 

that Merchant failed to file an Offender Concern Form—the 

first step in IDOC’s three-part grievance system set forth in 

were easily avoidable, which is supported by the record. The district 

court also considered the appropriateness of lesser sanctions, despite 

Merchant’s failure to move for such, and found that Merchant’s 

“chronic” noncompliance prejudiced Corizon and that imposing a lesser 

sanction would unjustly benefit Merchant at Corizon’s expense. This 

was not an abuse of discretion.
16 MERCHANT V. CORIZON HEALTH

Standard Operating Procedure 316.02.01.001 (Grievance 

Process). Merchant does not argue that the Grievance 

Process was unavailable to him. Instead, he claims that 

prisoners with medical complaints need not follow the 

Grievance Process. Specifically, he contends that such 

prisoners may instead exhaust their administrative remedies 

by submitting HSRs to Corizon. Merchant’s theory is belied 

by the record.

The Grievance Process explicitly instructs prisoners with 

medical complaints to file an Offender Concern Form. The 

warden also testified that prisoners challenge healthcarerelated decisions via the Grievance Process whereas HSRs 

are used to request medical attention. Indeed, Merchant filed 

two different Offender Concern Forms complaining about 

his medical care several years before the subject incident—

evidence undermining any suggestion that Merchant did not 

understand the Grievance Process.

Despite this evidence, Merchant contends that his HSRs 

constitute properly exhausted grievances. Citing Griffin v. 

Arpaio, he argues that “a grievance suffices if it alerts the 

prison to the nature of the wrong for which redress is sought” 

and that his HSRs met this standard because they “alert[ed]” 

Corizon to his leg pain. 557 F.3d 1117, 1120 (9th Cir. 2009) 

(citation omitted). The problem with Merchant’s argument 

is that Griffin concerns the level of specificity required in a 

grievance form. Id. Griffin is thus inapposite to this appeal 

because Merchant’s HSRs cannot be characterized as 

grievances—i.e., “retrospective complaints about the denial 

of [medical] services.” Small v. Camden Cnty., 728 F.3d 

265, 272 (3d Cir. 2013) (citation omitted); Black’s Law 

Dictionary (11th ed. 2019) (defining a grievance as “[t]he 

complaint itself”). Merchant’s HSRs were only “prospective 

requests” for services. Small, 728 F.3d at 272. They never 
MERCHANT V. CORIZON HEALTH 17

provided IDOC “a fair opportunity to correct [its alleged] 

error[],” Ngo, 548 U.S. at 94. We therefore decline to 

construe Merchant’s HSRs as properly filed grievances and 

affirm the district court’s grant of summary judgment to 

Corizon on Merchant’s Section 1983 claim because he failed 

to exhaust his administrative remedies as required by the 

PLRA.3

III. CONCLUSION

The district court did not err in excluding Merchant’s 

improperly disclosed expert evidence under Rule 37(c)(1) or 

in granting summary judgment to the defendants because 

Merchant failed to demonstrate a genuine issue of material 

fact for trial. Nor did the district court err in holding that 

Merchant failed to exhaust his administrative remedies, thus 

defeating his Section 1983 claim.

AFFIRMED.

3 Merchant suggested at oral argument that IDOC’s three-step 

procedure bars prisoners from seeking relief in the emergency-medical 

context. Merchant failed to raise this argument to the district court or in 

his appellate briefing, and we therefore decline to consider it. See 

Bracken v. Okura, 869 F.3d 771, 776 n.3 (9th Cir. 2017).