JIMMY BIZZELL V. KING COUNTY DEPARTMENT OF ADUL, No. 16-36031 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION OCT 30 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JIMMY D. BIZZELL, U.S. COURT OF APPEALS No. 16-36031 Plaintiff-Appellant, D.C. No. 2:16-cv-00401-JLR v. MEMORANDUM* KING COUNTY DEPARTMENT OF ADULT AND JUVENILE DETENTION, AKA RJC, Maleng Regional Justice Center, Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Jimmy D. Bizzell, a former pretrial detainee, appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action arising from his inability to access religious services, meals, * 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). and head coverings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168-71 (summary judgment is proper procedural vehicle for determining exhaustion). We affirm. Summary judgment was proper because Bizzell failed to raise a genuine dispute of material fact as to whether he properly exhausted administrative remedies or whether administrative remedies were effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016) (describing limited circumstances under which administrative remedies are deemed unavailable); Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that proper exhaustion is mandatory); see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice when there is no presuit exhaustion, even if there is exhaustion while suit is pending.” (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 16-36031

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