Douglas Derello, Jr. v. David Shinn ( 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NOT FOR PUBLICATION FILED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. 21-15246
Douglas Wayne Derello,
D.C. No. 2:20-cv-00956-MTL
Plaintiff-Appellant,
v. MEMORANDUM*
DAVID SHINN, Director; KARR, Deputy
Warden at SMU; CARR, First name
unknown,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted April 11, 2022**
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 safety. 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. 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. 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)).
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 21-15246