NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES CLAYTON McCURDY, No. 21-15090
Plaintiff-Appellant, D.C. No. 2:17-cv-01736-TLN-CKD
v.
MEMORANDUM*
RANDY THOMAS, C/O,
Defendant-Appellee,
and
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION;
et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, 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).
California state prisoner James Clayton McCurdy 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 excessive force and deliberate indifference
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because McCurdy
failed to exhaust his administrative remedies and failed to raise a genuine dispute
of material fact as to whether administrative remedies were effectively unavailable.
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)” (emphasis, citation, and internal quotation
marks omitted)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc)
(once the defendant has carried the burden to prove there was an available
administrative remedy, the burden shifts to the plaintiff to produce evidence
showing that administrative remedies were effectively unavailable to him).
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 21-15090
McCurdy’s motion to file a supplemental brief (Docket Entry No. 27) is
denied.
AFFIRMED.
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