                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               FEB 27 2018
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ELIAS MANUEL CUSTODIO,                            No.   16-35871

             Plaintiff-Appellant,                 D.C. No. 1:13-cv-00332-BLW

 v.
                                                  MEMORANDUM*
SONNIER, Counselor - Facilitator of the
Theraputic Community program ICC; et al.,

             Defendants-Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                           Submitted February 23, 2018**
                             San Francisco, California

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

      Idaho state prisoner Elias Manuel Custodio appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

claims arising from his participation in a prison rehabilitation program. We have

        *
               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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775

F.3d 1182, 1191 (9th Cir. 2015) (exhaustion); Toguchi v. Chung, 391 F.3d 1051,

1056 (9th Cir. 2004) (merits). We affirm.

      The district court properly granted summary judgment on Custodio’s First

Amendment claim against defendant Saade because Custodio did not exhaust

administrative remedies, and 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) (a prisoner must properly exhaust administrative

remedies, “which means using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on the merits)” (emphasis, citation,

and internal quotation marks omitted)); see also Ross v. Blake, 136 S.Ct. 1850, 1858-

60 (2016) (setting forth circumstances when administrative remedies are

unavailable).

      The district court properly granted summary judgment on Custodio’s First

Amendment free speech claim against defendant Sonnier because Custodio failed to

raise a genuine dispute of material fact as to whether Custodio’s removal from a

rehabilitation program was not reasonably related to legitimate penological interests.

See Turner v. Safley, 482 U.S. 78, 89-91 (1987) (setting forth four-factor test to




                                            2
analyze validity of policies or regulations that impinge on an inmate’s First

Amendment rights).

      The district court properly granted summary judgment on Custodio’s Eighth

Amendment claim against defendant Sonnier because Custodio failed to raise a

genuine dispute of material fact as to whether he was denied outdoor exercise for an

extended period of time. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (a

temporary denial of outdoor exercise with no medical effects is not a substantial

deprivation under the Eight Amendment).

      We do not consider matters not specifically and distinctly raised and argued in

the opening brief, or arguments. 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) (“Documents or

facts not presented to the district court are not part of the record on appeal.”).

      Atencio’s motion to substitute a party (Docket Entry No. 32) is granted.

      AFFIRMED.




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