SPICER v. BUNSOLD UA CO (2021)

MEMORANDUM **

Federal prisoner Deonte Vondell Spicer appeals pro se from the district court's summary judgment for failure to exhaust administrative remedies in his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging an Eighth Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), and we affirm.

The district court properly granted judgment because Spicer 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 id. at 1172 (setting forth exhaustion framework under the Prison Litigation Reform Act (“PLRA”)); see also Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850, 1858-60, 195 L.Ed.2d 117 (2016) (describing limited circumstances in which administrative remedies are unavailable); Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (requiring PLRA exhaustion for federal prisoners’ Bivens actions).

We do not consider Spicer's argument, raised for the first time on appeal, that his due process rights were violated. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we will not consider arguments that are raised for the first time on appeal.”).

We reject as unsupported by the record Spicer's contention that he was prevented from seeking discovery before the district court.

Spicer's pending motions are denied.

AFFIRMED.