NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACARIO IGNACIO MARRUFFO, No. 17-15865
Plaintiff-Appellant, D.C. No. 2:15-cv-00261-SPL
v.
MEMORANDUM*
CHRISTOPHER STREET, Sgt, young
fiction ex parte individual and official
capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Arizona state prisoner Macario Ignacio Marruffo appeals pro se from the
district court’s summary judgment and dismissal order in his action brought under
42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations Act
*
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).
(“RICO”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (summary judgment for
failure to exhaust administrative remedies); Hamilton v. Brown, 630 F.3d 889, 892
(9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A). We may affirm on any basis
supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d
930, 933 (9th Cir. 2004). We affirm.
The district court’s dismissal of all claims other than the excessive force
claim against Street was proper because Marruffo failed to allege facts sufficient to
state any plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are to be construed liberally, a plaintiff must
present factual allegations sufficient to state a plausible claim for relief);
Christopher v. Harbury, 536 U.S. 403, 415 (2002) (elements of access-to-courts
claim); Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361
(9th Cir. 2005) (elements of a civil RICO claim); Rhodes v. Robinson, 408 F.3d
559, 567-68 (9th Cir. 2005) (elements of retaliation claim in prison context);
Serrano v. Francis, 345 F.3d 1071, 1081 (9th Cir. 2003) (elements of equal
protection claim); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980)
(elements of conspiracy claim).
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The district court properly granted summary judgment on Marruffo’s
excessive force claim because Marruffo failed to raise a genuine dispute of
material fact as to whether he properly exhausted his administrative remedies, or
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 Woodford
v. Ngo, 548 U.S. 81, 90 (2006) (requiring proper exhaustion, which “means 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)).
We do not consider arguments not specifically and distinctly raised and
argued in the opening brief, or raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Marruffo’s request for judicial notice, set forth in his opening brief, is
denied.
Marruffo’s “Motion for Order to Reinstate Order to Amend Upon Newly
Discovered Information” (Docket Entry No. 16) and “Motion to Notify with Order
3 17-15865
for Extension” (Docket Entry No. 36) are denied.
AFFIRMED.
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