ECKARD v. DESHEV (2020)

MEMORANDUM **

Washington state prisoner Gabriel Eckard appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 alleging First Amendment violations arising out of denial of certain property and prison privileges. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

The district court properly dismissed Eckard’s action for failure to exhaust administrative remedies because Eckard was required to exhaust administrative remedies, but alleges in the complaint that he did not. See Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where a failure to exhaust is clear from the face of the complaint, a district court may dismiss for failure to state a claim); see also Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009) (under the Prison Litigation Reform Act, a “prisoner” is “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law;” that definition is “plain and unambiguous” (citation and internal quotation marks omitted)).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.