Anthony Bailey v. Rich Suey

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2018
• Docket: 18-15139
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY BAILEY, No. 18-15139

Plaintiff-Appellant, D.C. No. 2:12-cv-01954-JCM- CWH v.

RICH SUEY, Cpt.; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Former Clark County pretrial detainee Anthony Bailey appeals pro se from

the district court’s summary judgment for failure to exhaust administrative

remedies in his 42 U.S.C. § 1983 action challenging his conditions of confinement.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court’s legal rulings on exhaustion. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.

2014) (en banc). We affirm.

The district court properly granted summary judgment because Bailey failed

to appeal fully the denial of his grievance, and Bailey failed to raise a genuine

dispute of material fact as to whether there was “something in his particular case

that made the existing and generally available administrative remedies effectively

unavailable to him.” Albino, 747 F.3d at 1172; see also Woodford v. Ngo, 548

U.S. 81, 90 (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 documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

We do not consider matters not 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).

AFFIRMED.

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