Jason Harris v. Montoya

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2020
• Docket: 19-16273
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASON LEE HARRIS, No. 19-16273

Plaintiff-Appellant, D.C. No. 2:18-cv-02860-JAT-CDB

v. MEMORANDUM* MONTOYA, Correction Officer,

Defendant-Appellee,

and

CHARLES L. RYAN,

Defendant.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Arizona state prisoner Jason Lee Harris appeals pro se from 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 summary judgment for failure to exhaust administrative remedies in his 42

U.S.C. § 1983 action alleging deliberate indifference to his safety. 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 affirm.

The district court properly granted summary judgment because Harris 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 Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (setting forth

circumstances when administrative remedies are effectively unavailable).

The district court did not abuse its discretion by ordering a stay of discovery

on the merits of the case until the issue of whether Harris had exhausted his

administrative remedies was decided. See Albino v. Baca, 747 F.3d 1162, 1170-71

(9th Cir. 2014) (en banc) (a district court may in its discretion limit discovery until

the issue of administrative exhaustion is decided).

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 19-16273