eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Ninth Circuit
 2019-07

Raul Cervantes v. Burciaga ( 2019 )


Menu:
 
  •                            NOT FOR PUBLICATION                           FILED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
2                                       18-15568
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.
3                                  18-15568