                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

COLBY LEE APLIN,                                No. 19-35826

                Plaintiff-Appellant,            D.C. No. 3:18-cv-01124-MO

 v.
                                                MEMORANDUM*
GARRICK, MCDC; et al.,

                Defendants-Appellees,

and

H. LOPEZ, MCDC; et al.,

                Defendants.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                              Submitted April 7, 2020**

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      Oregon state prisoner Colby Lee Aplin appeals pro se from the district



      *
             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).
court’s summary judgment for failure to exhaust administrative remedies in her

42 U.S.C. § 1983 action alleging federal and state law claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca,

747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm in part, vacate in part,

and remand.

      The district court properly granted summary judgment on plaintiff’s claims

in Claim I of her second amended complaint because plaintiff failed to exhaust her

administrative remedies and failed to raise a genuine dispute of material fact as to

whether administrative remedies were effectively unavailable to her. 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); 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,

internal quotation marks, and emphasis omitted)).

      The district court granted summary judgment on plaintiff’s claims in

Claim II of her second amended complaint on the basis of defendants’ contention

that plaintiff filed one grievance related to these claims, on September 14, 2018,

and she did not file an appeal of that grievance. However, defendants filed a


                                          2                                    19-35826
declaration of Myque Obiero stating that plaintiff filed a second grievance related

to the claims in Claim II, on October 11, 2018, and plaintiff filed an appeal of that

grievance. It is not clear from the district court’s order whether the district court

considered plaintiff’s October 11, 2018 grievance. We therefore vacate the

judgment as to the claims in Claim II only, and remand for the district court to

consider the issue of exhaustion of administrative remedies as to plaintiff’s

October 11, 2018 grievance.

      In her opening brief, plaintiff fails to raise, and therefore has waived, any

challenge to the district court’s summary judgment on her claims in Claim III of

her second amended complaint. See Indep. Towers of Wash. v. Washington,

350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims that were

not actually argued in appellant’s opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d

139, 144 (9th Cir. 1993) (issues not supported by argument in pro se appellant’s

opening brief are waived).

      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 not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

///


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The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.




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