Douglas Derello, Jr. v. John McAdorey ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS WAYNE DERELLO, Jr., AKA No. 21-15835
Douglas Wayne Derello,
D.C. No. 2:19-cv-05884-MTL
Plaintiff-Appellant,
v. MEMORANDUM*
JOHN McADOREY, Deputy Warden at
SMU-1; S. SCOTT, Assistant Deputy
Warden at SMU I; R. MONTES, Captain at
SMU-1; DIGIRO, Sergeant at SMU I; L.
STICKLEY, Deputy Warden at South Unit;
K. AVANT-ORTIZ, NP at SMU-1 Medical;
M. BONILLA, Sergeant at SMU-1; N.
HARRIS, Sergeant at SMU 1; CENTURION
LLC, Medical Company over all Arizona
State Prisons; JOHN DOES, Officers at
SMU 1; MAGEO; FREELAND; JANE
DOE; DAHLGREN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted April 11, 2022**
*
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).
Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.
Arizona state prisoner Douglas Wayne Derello 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 serious medical
needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Derello
failed to exhaust administrative remedies and he 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, 642-45 (2016) (setting forth circumstances
when administrative remedies are effectively unavailable); Woodford v. Ngo, 548
U.S. 81, 90 (2006) (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)” (internal quotation marks omitted)).
The district court did not abuse its discretion by denying Derello’s motion
for reconsideration because Derello failed to demonstrate any basis for relief. See
Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for relief under
Federal Rule of Civil Procedure 59).
We do not consider matters not specifically and distinctly raised and argued
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in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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