George Alberto Beltran v. United States of America;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE ALBERTO BELTRAN,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
No. 18-35313
D.C. No. 3:17-cv-00915-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted February 19, 2019**
Before: TROTT, FERNANDEZ, and SILVERMAN, Circuit Judges.
Federal prisoner George Alberto Beltran appeals pro se from the district
court’s summary judgment for failure to exhaust administrative remedies in his
action under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), alleging various constitutional violations. We
* 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. We deny Beltran’s request for oral argument, set forth in
his opening brief. See Fed. R. App. P. 34(a)(2).
FILED
FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 Beltran
failed to properly exhaust his administrative remedies, or raise a genuine dispute of
material fact as to whether there was “something in his particular case that made
the existing and generally available administrative remedies effectively unavailable
to him.” Albino v. Baca, 747 F.3d 1162, 1171-72 (9th Cir. 2014) (en banc); see
also Woodford v. Ngo, 548 U.S. 81, 90 (2006) (requiring 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)” (emphasis, citation, and internal
quotation marks omitted)).
The district court did not abuse its discretion in denying Beltran’s motion for
default judgment because Beltran did not seek entry of default and defendants did
not “fail to plead or otherwise defend.” See Eitel v. McCool, 782 F.2d 1470, 1471
(9th Cir. 1986) (setting forth standard of review and explaining that Fed. R. Civ. P.
55 requires first the entry of a default and then entry of default judgment).
We reject as without merit Beltran’s contentions regarding judicial bias.
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).
AFFIRMED.

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