Robert Miller v. Shayna Olesiuk, 615 F. App'x 887

Robert Miller v. Shayna Olesiuk

615 F. App'x 887

9th Cir.

2015

Check Treatment

Docket

Robert Michael MILLER, Plaintiff-Appellant, v. Shayna OLESIUK; et al., Defendants-Appellees.

No. 13-17137

United States Court of Appeals, Ninth Circuit

Filed Sept. 2, 2015

Submitted Aug. 25, 2015

Before McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

Robert Michael Miller appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his action alleging various federal and state law claims in connection with his employment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Vinieratos v. U.S., Dep’t of Air Force, 939 F.2d 762, 767-68 (9th Cir.1991), and we affirm.

The district court properly concluded that Title VII and the Rehabilitation Act (“RA”) were Miller’s exclusive remedies for claims of discrimination in federal employment. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir.1985) (Title VII is the exclusive remedy for discrimination by the federal government on the basis of sex, and the RA is the exclusive remedy for discrimination by the federal government on the basis of disability); see also Brock v. United States, 64 F.3d 1421, 1424 (9th Cir.1995) (Title VII’s exclusivity regarding discrimination on the basis of sex also applies to discrimination on the basis of gender); Clemente v. United States, 766 F.2d 1358, 1364 n. 7 (9th Cir.1985) (“To the extent that plaintiff’s Bivens claims are founded in actions proscribed by Title VII, they may not be maintained because Title VII provides the exclusive remedy.”).

The district court properly concluded that Miller failed to exhaust his administrative remedies on his Title VII and RA claims because he failed to complete the negotiated grievance procedure. See Vinieratos, 939 F.2d at 767-68 (“Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit.”); Boyd, 752 F.2d at 413-14 (the same requirement applies to RA claims); see also Vinieratos, 939 F.2d at 768 (a federal employee who is a union member and alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a negotiated grievance procedure, but “he cannot pursue both avenues, and his election is irrevocable”).

Because Miller failed to exhaust, we do not consider Miller’s arguments regarding the merits of his claims.

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) (per curiam).

Miller’s requests, set forth in his opening brief, are denied.

AFFIRMED.

Oshay JOHNSON, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; et al., Defendants-Appellees.

No. 14-16712

United States Court of Appeals, Ninth Circuit

Filed Sept. 2, 2015

Submitted Aug. 25, 2015

Before McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

Oshay Johnson, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that he has been denied treatment for antisocial personality disorder (“ASPD”) and that his ASPD diagnosis should not be used as a basis to deny him parole. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A, Hamilton v. Brown, 630 F.3d 889, 892-893 (9th Cir.2011), and we affirm.

The district court properly dismissed Johnson’s Eighth Amendment claim regarding treatment for ASPD because Johnson failed to allege facts sufficient to show that defendants were deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official is deliberately indifferent only if he or she “knows of and disregards an excessive risk to inmate health”).

The district court properly dismissed Johnson’s claim regarding the right to treatment in order to obtain parole and his claim regarding the future use of a 2009 psychological evaluation because Johnson failed to allege facts sufficient to state