GABRIEL ECKARD V. ASEN DESHEV, No. 19-35522 (9th Cir. 2020)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED JUN 10 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GABRIEL ECKARD, AKA Gabriel Allen Eckard, U.S. COURT OF APPEALS No. 19-35522 D.C. No. 2:19-cv-00580-RSM Plaintiff-Appellant, MEMORANDUM* v. 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

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