Gabriel Eckard v. Asen Deshev ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL ECKARD, AKA Gabriel Allen No. 19-35522
Eckard,
D.C. No. 2:19-cv-00580-RSM
Plaintiff-Appellant,
v. MEMORANDUM*
ASEN DESHEV, Mental Health Custody
Unit Supervisor, Monroe Correctional
Complex; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Washington state prisoner Gabriel Eckard appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 alleging First Amendment
violations arising out of denial of certain property and prison privileges. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii));
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.
§ 1915A). We affirm.
The district court properly dismissed Eckard’s action for failure to exhaust
administrative remedies because Eckard was required to exhaust administrative
remedies, but alleges in the complaint that he did not. See Albino v. Baca, 747
F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where a failure to exhaust is clear from
the face of the complaint, a district court may dismiss for failure to state a claim);
see also 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)).
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).
AFFIRMED.
2 19-35522