NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LANCE CONWAY WOOD,                              No. 15-35241

                Plaintiff-Appellant,            D.C. No. 2:14-cv-00102-TC

 v.
                                                MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Ann L. Aiken, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Lance Conway Wood, a Utah state prisoner housed in an Oregon state

prison, appeals pro se from the district court’s summary judgment for failure to

exhaust administrative remedies in his 42 U.S.C. § 1983 action alleging various

constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We


      *
             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).
review de novo. Williams v. Paramo, 

, 1191 (9th Cir. 2015). We

affirm in part, vacate in part, and remand.

      The magistrate judge recommended revoking Wood’s in forma pauperis

status, but it is not clear whether the district court adopted this recommendation.

However, we conclude that this appeal is not frivolous and grant in forma pauperis

on appeal.

      The district court properly granted summary judgment on Wood’s claims

regarding denial of access to courts, denial of marriage, rejection of mail

containing “romantic content,” delayed mail, and insufficient postage because

Wood failed to raise a genuine dispute of material fact as to whether he properly

exhausted his administrative remedies as to these claims, or whether administrative

remedies were effectively unavailable. See Woodford v. Ngo, 

, 84, 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)” (emphasis, citation, and quotation marks omitted)); see also Ross v. Blake,

, 1858-60 (2016) (explaining that an inmate need not exhaust

unavailable administrative remedies and setting forth circumstances under which

an administrative procedure is unavailable).

      However, the district court improperly granted summary judgment on

Wood’s claim regarding the denial of visitation rights. Unlike the general


                                          2                                    15-35241
grievance process, which explains what an inmate may do if he fails to receive a

timely response, the visitation policy does not provide any such guidance; rather,

such a grievance is exhausted when the Institutions Director or designee issues a

decision, and the record does not reflect any such decision, despite Wood’s

evidence that he mailed the proper grievance. Because the district court did not

consider whether administrative remedies were unavailable to Wood, see 

, we vacate the judgment in part and remand for further

proceedings as to this claim only.

      Wood does not challenge the district court’s grant of summary judgment for

defendant Oregon Department of Corrections (“ODOC”) on the basis of Eleventh

Amendment immunity, and thus he has waived any challenge to the district court’s

summary judgment for ODOC. See Smith v. Marsh, 

, 1052 (9th Cir.

1999) (“[O]n appeal, arguments not raised by a party in its opening brief are

deemed waived[.]”).

      The district court did not abuse its discretion by denying Wood’s motion for

discovery because Wood failed to show that the evidence he sought to discover

would have precluded summary judgment. See Klingele v. Eikenberry, 

, 412-13 (9th Cir. 1988) (setting forth standard of review and recognizing that

“[t]he burden is on the nonmoving party . . . to show what material facts would be

discovered that would preclude summary judgment”).


                                         3                                      15-35241
      We reject as without merit Wood’s contention regarding the declaration of

Clig because the declaration was immaterial to whether Wood failed to exhaust

administrative remedies.

      We reject as without merit Wood’s contentions regarding the severance of

McKenzie’s claims and that Wood was prejudiced because both he and McKenzie

were required to pay a separate filing fee.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 

, 985 n.2 (9th Cir. 2009).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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