Kentrell Welch v. Michael Minev

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2024

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

FOR THE NINTH CIRCUIT

KENTRELL D. WELCH, No. 22-16591

Plaintiff-Appellant, D.C. No. 2:19-cv-01064-GMN-NJK v.

MEMORANDUM* MICHAEL MINEV, NDOC Medical Dir; TITO BUENCAMINO, NDOC Dir of Nursing; G. BRYANT, contracted general practitioner M.D.; JENNIFER NASH, Associate Warden; BRIAN WILLIAMS, Warden; GALLO; PATERNOSTER,

Defendants-Appellees, and JAMES DZURENDA,

Defendant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Submitted May 29, 2024**

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Before: FRIEDLAND, BENNETT, and SANCHEZ, Circuit Judges.

Nevada state prisoner Kentrell D. Welch 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 serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We vacate and remand.

The district court granted summary judgment on Welch’s claims, finding that defendants met their initial burden of showing that Welch did not fully exhaust any of the grievances he initiated related to his claims, and that Welch failed to raise a genuine dispute of material fact as to whether such administrative remedies were effectively unavailable to him. However, the evidence submitted by defendants includes a grievance related to Welch’s medical deliberate indifference claims (No. 20063045067) that was fully exhausted by Welch within the relevant period. A complete copy of grievance No. 20063045067, including attachments, does not appear in the record.1 We vacate the judgment and remand for the district court to develop the record concerning grievance No. 20063045067 and then to evaluate Welch’s exhausted claims in the first instance.

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

All pending motions are denied.

The parties will bear their own costs on appeal.

VACATED AND REMANDED.

3 22-16591