FILED
NOT FOR PUBLICATION NOV 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAY LEE VAUGHN, No. 15-17406
Plaintiff-Appellant, D.C. No. 2:14-cv-02235-MCE-
KJN
v.
HOOD, Correctional Officer, High Desert MEMORANDUM*
State Prison; ROLLANDS, Correctional
Officer, High Desert State Prison,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
California state prisoner Ray Lee Vaughn appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
U.S.C. § 1983 action arising from defendants’ alleged failure to protect him from
*
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).
an assault. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (legal rulings on
exhaustion); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Fed. R. Civ. P.
12(b)(6) motion to dismiss). We affirm.
The district court properly dismissed Vaughn’s action for failure to state a
claim because it is clear from the face of the complaint and its attachments that
Vaughn failed to exhaust his available administrative remedies by failing to appeal
separately the third-level cancellation decision. See Woodford v. Ngo, 548 U.S. 81,
90 (2006) (“[P]roper exhaustion of administrative remedies . . . means 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, 747 F.3d at 1169 (“[W]here a failure to exhaust is clear from the
face of the complaint, a defendant may successfully move to dismiss under Rule
12(b)(6) for failure to state a claim.”); see also Nat’l Ass’n for the Advancement of
Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in
determining whether the complaint states a claim for relief, “we may consider facts
contained in documents attached to the complaint”).
The district court did not abuse its discretion by declining to consider
Vaughn’s contention – raised for the first time in his objections to the magistrate
2 15-17406
judge’s findings and recommendations – that his failure to exhaust should be
excused because administrative remedies were effectively unavailable. See Brown
v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (setting forth standard of review and
stating that district judge has discretion to decide whether to consider evidence
presented for the first time in a party’s objection to a magistrate judge’s
recommendation).
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).
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
AFFIRMED.
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