Timothy Wilkins v. Scott Kernan ( 2021 )

NOT FOR PUBLICATION FILED
OCT 18 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY DEANORE WILKINS, No. 20-17257
Plaintiff-Appellant, D.C. No. 2:18-cv-03163-KJM-CKD
v.
MEMORANDUM*
SCOTT KERNAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
California state prisoner Timothy Deanore Wilkins 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 deliberate indifference to his safety. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747
*
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).
F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Wilkins
failed to exhaust administrative remedies and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable to
him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining that proper
exhaustion requires “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 internal quotation marks omitted)); see also Ross v. Blake, 136 S. Ct.
1850, 1858-60 (2016) (describing limited circumstances in which administrative
remedies are effectively unavailable); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
Cir. 2009) (explaining that an incarcerated person’s grievance must “alert[] the
prison to the nature of the wrong for which redress is sought” (citation and internal
quotation marks omitted)).
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).
AFFIRMED.
2 20-17257