GABRIEL ECKARD, AKA Gabriel Allen Eckard v. SCOTT SYMONS, Corrections Officer at Monroe Correctional Complex

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL ECKARD, AKA Gabriel Allen
Eckard,
Plaintiff-Appellant,
v.
SCOTT SYMONS, Corrections Officer at
Monroe Correctional Complex,
Defendant-Appellee.
No. 19-36064
D.C. No. 2:19-cv-00376-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Washington state prisoner Gabriel Eckard appeals pro se from the 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. Albino v.
* 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
FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Eckard was
incarcerated when he filed this action and was therefore required to exhaust
administrative remedies, but did not, and Eckard failed to raise a genuine dispute
of material fact as to whether administrative remedies were effectively unavailable
to him. 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)); see also Talamantes v. Leyva, 575 F.3d
1021, 1023 (9th Cir. 2009) (under the Prison Litigation Reform Act, a “prisoner” is
“any person incarcerated or detained in any facility who is accused of, convicted
of, sentenced for, or adjudicated delinquent for, violations of criminal law;” that
definition is “plain and unambiguous” (citation and internal quotation marks
omitted)). Eckard’s contention that he was transferred to a county jail is irrelevant
because his failure to comply with the prison’s exhaustion procedures occurred
prior to his transfer.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Contrary to Eckard’s contention, the district court did not prevent Eckard
from presenting his case on appeal.

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All pending motions are denied.
AFFIRMED.

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