Opinion
21-15090
03-23-2022
JAMES CLAYTON McCURDY, Plaintiff-Appellant, v. RANDY THOMAS, C/O, Defendant-Appellee, and CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; et al., Defendants.
NOT FOR PUBLICATION
Submitted March 16, 2022 [**]
Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding D.C. No. 2:17-cv-01736-TLN-CKD
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
MEMORANDUM [*]
California state prisoner James Clayton McCurdy 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 excessive force and deliberate indifference claims. 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 McCurdy failed to exhaust his administrative remedies and failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable. See 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)" (emphasis, citation, and internal quotation marks omitted)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (once the defendant has carried the burden to prove there was an available administrative remedy, the burden shifts to the plaintiff to produce evidence showing that administrative remedies were effectively unavailable to him).
We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
McCurdy's motion to file a supplemental brief (Docket Entry No. 27) is denied.
AFFIRMED.
[*] 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).