Raul Cervantes v. Burciaga

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL CERVANTES, No. 18-15568
Plaintiff-Appellant, D.C. No. 2:15-cv-02138-KJM-DB
v.
MEMORANDUM*
BURCIAGA, C/O,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Raul Cervantes, a California state prisoner, 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 an excessive force claim. We have jurisdiction
under 28 U.S.C. §1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168
*
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).
(9th Cir. 2014) (en banc) (failure to exhaust administrative remedies); Avery v.
First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir. 2009) (cross-motions
for summary judgment). We affirm.
The district court properly granted summary judgment for defendant
Burciaga because Cervantes 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 Woodford v. Ngo, 548 U.S. 81,
90 (2006) (the Prison Litigation Reform Act requires “proper exhaustion,” which
means “using all steps the agency holds out, and doing so properly” (citation and
internal quotation marks omitted)); Andres v. Marshall, 867 F.3d 1076, 1078 (9th
Cir. 2017) (describing the limited circumstances under which exhaustion may be
effectively unavailable) (citing Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016)). In
light of the above, the district court did not err in denying Cervantes’s cross-
motions for summary judgment.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents that were not presented to the district court.
See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).
Cervantes’s contentions that the district court excused him from exhausting
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administrative remedies and that its denial of defendant’s prior summary judgment
motion warranted judgment in his favor are unpersuasive.
All pending motions are denied.
AFFIRMED.
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