NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES CLAYTON McCURDY, No. 21-15090

Plaintiff-Appellant, D.C. No. 2:17-cv-01736-TLN-CKD

v.

MEMORANDUM*

RANDY THOMAS, C/O,

Defendant-Appellee,

and

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND REHABILITATION;

et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

* 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). California state prisoner James Clayton McCurdy 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 excessive force and deliberate indifference

claims. 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 McCurdy

failed to exhaust his administrative remedies and failed to raise a genuine dispute

of material fact as to whether administrative remedies were effectively unavailable.

See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “using

all steps that the agency holds out and doing so properly (so that the agency

addresses the issues on the merits)” (emphasis, citation, and internal quotation

marks omitted)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc)

(once the defendant has carried the burden to prove there was an available

administrative remedy, the burden shifts to the plaintiff to produce evidence

showing that administrative remedies were effectively unavailable to him).

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

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

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

2 21-15090 McCurdy’s motion to file a supplemental brief (Docket Entry No. 27) is

denied.

AFFIRMED.

3 21-15090