NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARRIE S. ARMSTRONG, No. 13-15237
Plaintiff-Appellant, D.C. No. 1:10-cv-01856-LJO-JLT
v.
MEMORANDUM*
CALIFORNIA STATE CORRECTIONAL
INSTITUTIONS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Carrie S. Armstrong appeals pro se from the district court’s summary
judgment in her 42 U.S.C. § 1983 action alleging First Amendment retaliation and
state law defamation claims arising out of her employment as a registered nurse at
*
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).
a California state prison. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
In her opening brief, Armstrong fails to address how the district court erred
in granting summary judgment and thus this issue is waived. See Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider
any claims that were not actually argued in appellant’s opening brief.”); Acosta-
Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in pro se appellant’s opening brief are waived).
The district court did not abuse its discretion in rejecting Armstrong’s
untimely opposition to the motion for summary judgment because Armstrong
failed to file a motion, pursuant to Fed. R. Civ. P. 6(b), establishing excusable
neglect. See Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 966 (9th Cir.
2010) (setting forth standard of review and explaining that “it is never an abuse of
discretion for a district court to exclude untimely evidence when a party fails to
submit that evidence pursuant to a motion, as Rule 6(b) expressly requires”).
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).
2 13-15237
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.
3 13-15237