Renard Truman Polk v. Ranaldo Waldo; James Donnelly

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENARD TRUMAN POLK,
Plaintiff-Appellant,
v.
RANALDO WALDO; JAMES
DONNELLY,
Defendants-Appellees,
and
TARA CARPENTER; et al.,
Defendants.
No. 20-16250
D.C. No. 3:16-cv-00652-MMD-CLB
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Former Nevada state prisoner Renard Truman Polk 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging retaliation and deliberate indifference. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca,
747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Polk failed to
exhaust his administrative remedies and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of
administrative remedies . . . means using all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on the merits).” (citation
and internal quotation marks omitted)); Albino, 747 F.3d at 1172 (explaining that
once the defendant has carried the burden to prove that there was an available
administrative remedy, the burden shifts to the plaintiff to produce evidence
showing that administrative remedies were effectively unavailable to him).
The district court did not abuse its discretion in denying Polk’s motion to
amend his complaint because the motion was untimely, and Polk did not
demonstrate good cause. See DRK Photo v. McGraw-Hill Glob. Educ. Holdings,
LLC, 870 F.3d 978, 989 (9th Cir. 2017) (setting forth good cause standard standard
for requests for leave to amend under Federal Rule of Procedure 16).
We do not consider matters not specifically and distinctly raised and argued

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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).
Polk’s request for sanctions, set forth in a motion (Docket Entry No. 26) and
his amended reply brief, is denied.
AFFIRMED.

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