Berlan Dicey v. W. Hanks

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

BERLAN LYNELL DICEY, No. 17-15745

Plaintiff-Appellant, D.C. No. 2:14-cv-02018-JAM-AC

v.
MEMORANDUM*
W. HANKS; L. BETTI,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding

Submitted February 13, 2018**

Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

California state prisoner Berlan Lynell Dicey 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 retaliation. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.

*
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).
2015). We affirm.

The district court properly granted summary judgment because Dicey did

not properly exhaust his administrate remedies, and Dicey failed to raise a genuine

dispute of material fact as to whether administrative remedies were effectively

unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016)

(describing limited circumstances in which administrative remedies are effectively

unavailable); 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[.]” (citation, internal quotation marks, and emphasis omitted)).

The district court did not abuse its discretion in denying Dicey’s motion to

amend the judgment under Fed. R. Civ. P. 59(e) because Dicey did not present

newly discovered evidence, demonstrate clear error by the district court, or present

an intervening change in controlling law. See Carroll v. Nakatani, 342 F.3d 934,

940, 945 (9th Cir. 2003) (setting forth standard of review and discussing when

reconsideration is appropriate under Fed. R. Civ. P. 59).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also

Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (absent unusual

circumstances, only the district court record is considered on appeal).

We do not consider issues that were not raised in the opening brief. See

2 17-15745
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.

3 17-15745