5 6 Dwayne Lamont Burgess v. J. Raya;

NOT FOR PUBLICATION 1
2
UNITED STATES COURT OF APPEALS 3
4
FOR THE NINTH CIRCUIT 5
6
DWAYNE LAMONT BURGESS,
Plaintiff-Appellant,
v.
J. RAYA; et al.,
Defendants-Appellees.
No. 17-17427
D.C. No. 1:11-cv-00921-LJO-JLT
MEMORANDUM*
7
Appeal from the United States District Court 8
for the Eastern District of California 9
Lawrence J. O’Neill, Chief Judge, Presiding 10
11
Submitted August 15, 2018**
12
13
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. 14
California state prisoner Dwayne Lamont Burgess appeals pro se from the 15
district court’s summary judgment for failure to exhaust administrative remedies in 16
his 42 U.S.C. § 1983 action alleging an Eighth Amendment claim. We have 17
jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 18
* 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-17427
F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm. 1
The district court properly granted summary judgment because Burgess 2
failed to exhaust his administrative remedies with respect to his claim that he was 3
exposed to pepper spray for a prolonged period of time after alerting defendants to 4
his health issues. See id. at 1171-72 (setting forth the parties’ respective burdens 5
for a failure to exhaust defense under the Prison Litigation Reform Act); Griffin v. 6
Arpaio, 557 F.3d 1117, 1120-21 (9th Cir. 2009) (a prisoner’s grievance must 7
“alert[] the prison to the nature of the wrong for which the redress is sought” and 8
provide sufficient information “to allow prison officials to take appropriate 9
responsive measures”) (citations and internal quotation marks omitted)). 10
We do not consider matters not specifically and distinctly raised and argued 11
in the opening brief, or arguments and allegations raised for the first time on 12
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not 13
consider documents not filed with the district court. See United States v. Elias, 921 14
F.2d 870, 874 (9th Cir. 1990). 15
AFFIRMED. 16

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