NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARNEST CASSELL WOODS, II,

Plaintiff-Appellant,

 v.

ROBERT L. AYERS, Jr., Warden; et al.,

Defendants-Appellees.

No. 14-15241

D.C. No. 3:11-cv-04730-JSW

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Earnest Cassell Woods, II, appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 

775 F.3d 1182, 1191 (9th Cir. 2015) (dismissal for failure to exhaust administrative 

 

* 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

DEC 23 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-15241 

remedies); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. 

R. Civ. P. 12(b)(6)). We may affirm on any ground supported by the record. 

Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We affirm in part, reverse 

in part, and remand.

Dismissal of Woods’s retaliation claim was proper because Woods failed to 

allege facts sufficient to show that defendants’ actions did not advance legitimate 

goals of the correctional institution. See Watison v. Carter, 668 F.3d 1108, 1114 

(9th Cir. 2012) (elements of a First Amendment retaliation claim in prison 

context).

The district court properly dismissed Woods’s deprivation of property claim 

because California state law provides an adequate post-deprivation remedy. See 

Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (an unauthorized property 

deprivation is not cognizable under § 1983 because California state law provides 

an adequate post deprivation remedy).

The district court properly dismissed Woods’s First Amendment free 

exercise claim because Woods did not allege facts sufficient to show that having 

only ten minutes to eat a kosher meal on one occasion violated a sincerely held 

religious belief. See Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (Free 
3 14-15241 

Exercise Clause is only implicated when a prison’s practices burden an inmate’s 

sincerely held religious beliefs).

The district court properly dismissed Woods’s Eighth Amendment claim 

regarding personal hygiene products because Woods failed to allege facts 

sufficient to state a plausible claim. See Hebbe, 627 F.3d at 341-42 (pro se 

plaintiff must present factual allegations sufficient to state a plausible claim for 

relief). 

To the extent that Woods argues he was deprived of due process in his 

disciplinary hearings, Woods waived this claim by failing to replead it in his 

second amended complaint. See Lacey v. Maricopa County, 693 F.3d 896, 928 

(9th Cir. 2012) (en banc) (“[F]or any claims voluntarily dismissed, we will 

consider those claims to be waived if not repled.”).

The district court concluded that Woods failed to exhaust administrative 

remedies on his medical deliberate indifference claim. However, Woods submitted 

two Third Level Appeals addressing his medical needs, and defendants did not 

meet their burden of demonstrating that these appeals were properly screened 

under existing regulations. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 

2014) (en banc) (State bears the burden of proving that the prisoner did not exhaust 
4 14-15241 

available administrative remedies); Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th 

Cir. 2010) (exhaustion is not required where administrative remedies are 

“effectively unavailable” because an appeal is improperly screened); see also 

Albino, 747 F.3d at 1173 (“[W]here prison officials decline[] to reach the merits of 

a particular grievance for reasons inconsistent with or unsupported by applicable 

regulations, [courts have concluded] administrative remedies were effectively 

unavailable.” (citation and internal quotation marks omitted)). Accordingly, we 

conclude that dismissal of this medical deliberate indifference claim was improper 

and we remand for further proceedings. 

We lack jurisdiction to consider the district court’s post-judgment order 

denying Woods’s expert witness motion because Woods failed to file an amended 

or separate notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii); Whitaker v. 

Garcetti, 486 F.3d at 585 (appellant generally must file a separate notice of appeal 

or amend a previously filed notice of appeal to secure review of a post-judgment 

order).

We do not consider arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as without merit Woods’s contention that the district judge was 
5 14-15241 

biased against him.

We treat Woods’s requests, filed on August 13 and 14, 2015, as requests to 

consider the document filed on August 3, 2015 as his reply brief, and grant the 

requests.

Woods’s pending requests, set forth in his opening and reply briefs, are 

denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.