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United States Court of Appeals, Ninth Circuit.

Derek WARDLAW, Plaintiff-Appellant, v. J. MERINO, Individual; et al., Defendants-Appellees.

No. 18-56242

Decided: November 26, 2019

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges. Derek Wardlaw, Pro Se Raymond Joseph Fuentes, Attorney, Fuentes & McNally, LLP, Glendale, CA, for Defendants - Appellees


Derek Wardlaw, a former pretrial detainee at the Twin Towers Correctional Facility supervised by the Los Angeles County Sheriff’s Department, 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 constitutional violations. 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). We affirm.

The district court properly granted summary judgment because Wardlaw failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, and failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable. See Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850, 1856, 1858-60, 195 L.Ed.2d 117 (2016) (an inmate must exhaust “such administrative remedies as are available” before bringing suit; and describing limited circumstances in which administrative remedies are unavailable); Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“[P]roper exhaustion of administrative remedies ․ means 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)).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or documents and facts not presented to the district court. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

Wardlaw motion for default judgment is denied.


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