Douglas Derello, Jr. v. David Shinn

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS WAYNE DERELLO, Jr., AKA No. 21-15246 Douglas Wayne Derello,

D.C. No. 2:20-cv-00956-MTL Plaintiff-Appellant,

v. MEMORANDUM* DAVID SHINN, Director; KARR, Deputy Warden at SMU; CARR, First name unknown,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.

Arizona state prisoner Douglas Wayne Derello 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 deliberate indifference to his safety. We have

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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 Derello failed to exhaust administrative remedies and he failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable to him. See Ross v. Blake, 578 U.S. 642-45 (2016) (setting forth circumstances when administrative remedies are effectively unavailable); 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)” (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.

2 21-15246