Keith Davis v. Williams Hayes

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2020
• Docket: 18-35433
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEITH ADAIR DAVIS, No. 18-35433

Plaintiff-Appellant, D.C. No. 2:16-cv-01709-RSM

v. MEMORANDUM* WILLIAMS HAYES, Director, individually and in his official capacity, et al.,

Defendants-Appellees.

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

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Washington state prisoner Keith Adair Davis 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 use of excessive force while he was a pretrial

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

* 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). Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.

The district court properly granted summary judgment because Davis did not

exhaust his 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 refusing to consider Davis’s

opposition to the motion for summary judgment because Davis failed to establish

excusable neglect for the untimely filing. See Fleischer Studios, Inc. v. A.V.E.L.A.,

Inc., 654 F.3d 958, 966 (9th Cir. 2011) (setting forth standard of review and

explaining that “it is never an abuse of discretion for a district court to exclude

untimely evidence when a party fails to submit that evidence pursuant to a motion,

as Rule 6(b) expressly requires”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)

(“[P]ro se litigants are bound by the rules of procedure.”).

We reject as meritless Davis’s contentions that the district court held him to

a “higher standard” as a pro se litigant, implied that he was “not credible,” and held

2 18-35433 “technical misunderstandings” against him.

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.

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