Christopher Lipsey v. R. Hernandez;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER LIPSEY,
Plaintiff-Appellant,
v.
R. HERNANDEZ; et al.,
Defendants-Appellees,
and
REDDY, Dr.; et al.,
Defendants.
Nos. 19-15612
19-16600
D.C. No. 1:17-cv-00569-LJO-BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
In these consolidated appeals, Christopher Lipsey appeals pro se from the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes these cases are 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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19-16600
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a district court’s summary judgment for failure to exhaust administrative
remedies. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Lipsey failed
to exhaust his available administrative remedies as required by the Prison
Litigation Reform Act, and 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, 1856, 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,
including when “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation”);
Williams, 775 F.3d at 1191 (a prisoner who does not exhaust administrative
remedies must show that “there is something particular in his case that made the
existing and generally available administrative remedies effectively unavailable to
him”).
The district court did not abuse its discretion by denying Lipsey’s motions
for reconsideration because Lipsey failed to demonstrate any basis for such relief.
See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

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19-16600
(9th Cir. 1993) (standard of review and grounds for relief under Fed. R. Civ. P.
59(e) or 60(b)).
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
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents and facts not presented to the district court.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
Appellees’ opposed motion to strike portions of the opening brief and
attached exhibits (Docket Entry No. 21 in No. 19-15612; Docket Entry No. 20 in
No. 19-16600) is denied as unnecessary.
AFFIRMED.

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