Rodney T. Kralovetz v. MARION SPEARMAN, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY T. KRALOVETZ,
Plaintiff-Appellant,
v.
MARION SPEARMAN, Warden; et al.,
Defendants-Appellees.
No. 20-15437
D.C. No. 3:16-cv-00299-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
California state prisoner Rodney T. Kralovetz appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference and due process claims. We review de novo. Albino v.
Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). We affirm.
* 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).
FILED
MAY 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The district court properly granted summary judgment on Kralovetz’s
deliberate indifference claim because Kralovetz 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, 1858-60 (2016) (explaining that an
inmate must exhaust such administrative remedies as are available before bringing
suit, and describing limited circumstances in which administrative remedies are
unavailable); McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015) (to show that
a threat rendered the prison grievance system unavailable, a prisoner must show
that he subjectively believed prison officials would retaliate against him and that
his belief was objectively reasonable).
In his opening brief, Kralovetz fails to raise, and has therefore waived, any
challenge to the district court’s summary judgment on his due process claim. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e
will not consider any claims that were not actually argued in appellant’s opening
brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not
supported by argument in pro se appellant’s opening brief are waived).
We reject as meritless Kralovetz’s contention that he should be given an
additional opportunity to amend his complaint.
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

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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
Kralovetz’s request for appointment of counsel, set forth in his reply brief, is
denied.
Kralovetz’s request for copies of his reply brief, set forth in his reply brief, is
granted in part. The Clerk is directed to mail two copies of Kralovetz’s reply brief
to him.
AFFIRMED.

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