Gabriel Eckard v. Brian Wilmoth ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL ECKARD, AKA Gabriel Allen No. 20-35552
Eckard,
D.C. No. 2:19-cv-00377-BJR
Plaintiff-Appellant,
v. MEMORANDUM*
BRIAN WILMOTH, Correctional Officer,
Monroe Correctional Complex,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Washington state prisoner Gabriel Eckard appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force
and an unreasonable search. 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. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
We affirm.
The district court properly granted summary judgment because Eckard was
incarcerated when he filed this action and was therefore required to exhaust
administrative remedies, but did not. See Talamantes v. Leyva, 575 F.3d 1021,
1023 (9th Cir. 2009) (under the Prison Litigation Reform Act, a “prisoner” is “any
person incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law;” that
definition is “plain and unambiguous” (citation and internal quotation marks
omitted)). Eckard’s contention that he was transferred to a county jail is irrelevant
because his failure to comply with the prison’s exhaustion procedures occurred
prior to his transfer.
We do not consider Eckard’s contention that administrative remedies were
effectively unavailable because Eckard did not properly raise this argument before
the district court. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 20-35552