Dwayne Burgess v. J. Raya

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2018
• Docket: 17-17427
• Status: Unpublished

Opinion

1 NOT FOR PUBLICATION FILED 2 3 UNITED STATES COURT OF APPEALS AUG 21 2018 4 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS 5 FOR THE NINTH CIRCUIT 6 DWAYNE LAMONT BURGESS, No. 17-17427

Plaintiff-Appellant, D.C. No. 1:11-cv-00921-LJO-JLT

v. MEMORANDUM* J. RAYA; et al.,

Defendants-Appellees. 7 8 Appeal from the United States District Court 9 for the Eastern District of California 10 Lawrence J. O’Neill, Chief Judge, Presiding 11 12 Submitted August 15, 2018** 13 14 Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

15 California state prisoner Dwayne Lamont Burgess appeals pro se from the

16 district court’s summary judgment for failure to exhaust administrative remedies in

17 his 42 U.S.C. § 1983 action alleging an Eighth Amendment claim. We have

18 jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747

* 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). 1 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.

2 The district court properly granted summary judgment because Burgess

3 failed to exhaust his administrative remedies with respect to his claim that he was

4 exposed to pepper spray for a prolonged period of time after alerting defendants to

5 his health issues. See id. at 1171-72 (setting forth the parties’ respective burdens

6 for a failure to exhaust defense under the Prison Litigation Reform Act); Griffin v.

7 Arpaio, 557 F.3d 1117, 1120-21 (9th Cir. 2009) (a prisoner’s grievance must

8 “alert[] the prison to the nature of the wrong for which the redress is sought” and

9 provide sufficient information “to allow prison officials to take appropriate

10 responsive measures”) (citations and internal quotation marks omitted)).

11 We do not consider matters not specifically and distinctly raised and argued

12 in the opening brief, or arguments and allegations raised for the first time on

13 appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

14 consider documents not filed with the district court. See United States v. Elias, 921

15 F.2d 870, 874 (9th Cir. 1990).

16 AFFIRMED.

2 17-17427