NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       DEC 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 EARNEST CASSELL WOODS, II,                       No. 14-15241

                  Plaintiff-Appellant,            D.C. No. 3:11-cv-04730-JSW

   v.
                                                  MEMORANDUM*
 ROBERT L. AYERS, Jr., Warden; et al.,

                  Defendants-Appellees.

                    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).
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

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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

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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

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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.




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