NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY VAUGHN PINSON, AKA No. 19-17293
Jeremy Pinson,
D.C. No. 4:18-cv-00152-DCB
Plaintiff-Appellant,
v. MEMORANDUM*
IVEY, Officer; UNITED STATES OF
AMERICA,
Defendants-Appellees,
and
DOES, named as: Unknown Parties Officer
1 and Officer 2; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
*
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).
Federal prisoner Jeremy Vaughn Pinson appeals pro se from the district
court’s summary judgment and dismissal order in her action brought under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
alleging violations of her Eighth Amendment rights. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. First Resort, Inc. v. Herrera, 860 F.3d
1263, 1271 (9th Cir. 2017) (motion to dismiss); Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004) (summary judgment). We affirm.
The district court properly granted summary judgment on Pinson’s Eighth
Amendment claims against defendant Ivey because Pinson failed to exhaust her
administrative remedies. 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)” (citation, and
internal quotation marks omitted)).
The district court properly dismissed Pinson’s Federal Tort Claims Act
(“FTCA”) claim for lack of subject matter jurisdiction because Pinson failed to
exhaust her administrative remedies. See 28 U.S.C. § 2675(a) (setting forth
FTCA’s administrative exhaustion requirement); McNeil v. United States, 508 U.S.
106, 113 (1993) (the FTCA bars a claimant from bringing suit in federal court
2 19-17293
unless the claimant has first exhausted administrative remedies).
Pinson’s challenges to the denial of her motion for a preliminary injunction
are moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th
Cir. 1992) (when underlying claims have been decided, the reversal of a denial of a
preliminary injunction would have no practical consequences, and the issue is
therefore moot).
We do not consider Pinson’s arguments regarding her First Amendment
claims because she abandoned those claims. See First Resort, Inc. v. Herrera, 860
F.3d 1263, 1274 (9th Cir. 2017) (holding when a plaintiff fails to replead a claim
that has been dismissed with leave to amend, she abandons that claim).
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).
Pinson’s motion for a preliminary injunction (Docket Entry No. 17) is
denied.
AFFIRMED.
3 19-17293