Moriano Millare v. C. Jackson ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORIANO D. MILLARE, No. 21-16946
Plaintiff-Appellant, D.C. No. 2:20-cv-00451-WBS-JDP
v.
MEMORANDUM*
C. JACKSON, Lieutenant; DVI; M.
VIVERO, Captain; DVI; K. D. JOHNSON,
Associate Warden; DVI; K. KESTERSON,
Chief Deputy Warden; DVI; G. MURPHY,
Captain, Appeals Examiner; Department of
Corrections and Rehabilitation,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
California state prisoner Moriano D. Millare appeals pro se from the district
court’s summary judgment for failure to exhaust administrative remedies in his 42
*
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).
U.S.C. § 1983 action alleging First Amendment retaliation. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217,
1222 (9th Cir. 2010). We affirm.
The district court properly granted summary judgment on Millare’s
retaliation claim because Millare failed to exhaust his administrative remedies and
failed to raise a genuine dispute of material fact as to whether administrative
remedies were effectively unavailable to him. See Ross v. Blake, 578 U.S. 632,
642-44 (2016) (explaining that an inmate must exhaust “available" administrative
remedies before bringing suit, and describing limited circumstances in which
administrative remedies are unavailable); Griffin v. Arpaio, 557 F.3d 1117, 1121
(9th Cir. 2009) (explaining that a grievance must “provide enough information . . .
to allow prison officials to take appropriate responsive measures” (citation and
internal quotation marks omitted)); McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.
2015) (“To show that a threat rendered the prison grievance system unavailable, a
prisoner must provide a basis for the court to find that he actually believed prison
officials would retaliate against him if he filed a grievance . . . [and] demonstrate
that his belief was objectively reasonable.”).
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
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
AFFIRMED.
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