Devin Andrich v. Charles Ryan

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DEVIN ANDRICH, No. 18-17075

Plaintiff-Appellant, D.C. No. 2:16-cv-02734-GMS-JZB

v. MEMORANDUM* CHARLES L. RYAN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Submitted January 8, 2020**

Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.

Former Arizona state prisoner Devin Andrich 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 Eighth Amendment claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162,

* 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). 1168 (9th Cir. 2014) (en banc). We affirm.

The district court properly granted summary judgment because Andrich

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 Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation

Reform Act requires “proper exhaustion . . . which 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)); see also Ross v.

Blake, 136 S. Ct. 1850, 1858-60 (2016) (setting forth circumstances when

administrative remedies are unavailable).

The district court did not abuse its discretion in denying Andrich’s motion to

modify the scheduling order because Andrich failed to show good cause. See

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)

(setting forth standard of review and explaining that moving party must

demonstrate “good cause” to modify pretrial scheduling order).

The district court did not abuse its discretion by denying Andrich’s motion

to strike because Andrich failed to demonstrate any error or prejudice. See Bias v.

Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (“Evidentiary rulings made in the

context of summary judgment motions are reviewed for abuse of discretion and

can only be reversed if [they were] both manifestly erroneous and prejudicial.”

2 18-17075 (alteration in original) (citation and internal quotation marks omitted)).

We do not consider the district court’s order denying Andrich’s post-

judgment motion for reconsideration because Andrich failed to file a new or

amended notice of appeal after the district court denied his post-judgment motion.

See Fed. R. App. P. 4(a)(4)(B)(ii); Harris v. Mangum, 863 F.3d 1133, 1138 n.1

(9th Cir. 2017).

We reject as unsupported by the record Andrich’s contentions of misconduct

by the district court or defendants.

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.

3 18-17075