NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LACEDRIC W. JOHNSON, No. 17-16654
Plaintiff-Appellant, D.C. No. 1:14-cv-01601-LJO-SKO
v.
MEMORANDUM*
J. BEJINEZ; 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 September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
California state prisoner Lacedric W. Johnson appeals pro se from the
district court’s summary judgment for failure to exhaust his administrative
remedies in his 42 U.S.C. § 1983 action alleging constitutional violations. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v.
*
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).
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Johnson did
not exhaust his claims prior to initiating his lawsuit, and Johnson failed to raise a
genuine dispute of material fact as to whether there was “something in his
particular case that made the existing and generally available administrative
remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172
(9th Cir. 2014) (en banc); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th
Cir. 2017) (exhaustion and the availability of administrative remedies are measured
at the time an action is filed); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th
Cir. 2002) (“Requiring dismissal without prejudice when there is no presuit
exhaustion provides a strong incentive that will further [the] Congressional
objectives [of the Prison Litigation Reform Act].”).
We treat the judgment as a dismissal without prejudice to Johnson refiling
the action. See McKinney, 311 F.3d at 1200-01.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, including the district court’s denial of Johnson’s motion to
alter or amend, or allegations raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 17-16654
Appellees’ motion to strike (Docket Entry No. 22) is denied as moot because
we do not consider arguments raised for the first time in the reply brief. See Smith
v. U.S. Customs & Border Prot., 741 F.3d 1016, 1020 n.2 (9th Cir. 2014).
AFFIRMED.
3 17-16654
Lacedric Johnson v. J. Bejinez
Combined Opinion