Gabriel Eckard v. Asen Deshev

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GABRIEL ECKARD, AKA Gabriel Allen No. 19-35522 Eckard, D.C. No. 2:19-cv-00580-RSM Plaintiff-Appellant,

v. MEMORANDUM*

ASEN DESHEV, Mental Health Custody Unit Supervisor, Monroe Correctional Complex; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Washington state prisoner Gabriel Eckard appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 alleging First Amendment

violations arising out of denial of certain property and prison privileges. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668

F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii));

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.

§ 1915A). We affirm.

The district court properly dismissed Eckard’s action for failure to exhaust

administrative remedies because Eckard was required to exhaust administrative

remedies, but alleges in the complaint that he did not. See Albino v. Baca, 747

F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where a failure to exhaust is clear from

the face of the complaint, a district court may dismiss for failure to state a claim);

see also Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009) (under the

Prison Litigation Reform Act, a “prisoner” is “any person incarcerated or detained

in any facility who is accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law;” that definition is “plain and

unambiguous” (citation and 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 19-35522