Derrick Lang Hunter v. Shelly Thompson , 631 F. App'x 488 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 27 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK LANG HUNTER, No. 14-35252
Plaintiff - Appellant, D.C. No. 2:13-cv-00107-JPH
v.
MEMORANDUM*
SHELLY THOMPSON, Supervisor
Assistant; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Washington state prisoner Derrick Lang Hunter appeals pro se from the
district court’s judgment dismissing for failure to exhaust administrative remedies
his 42 U.S.C. § 1983 action alleging claims arising out of alleged sexual and racial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
harassment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly dismissed as to defendants Vail, Morse, Parker,
Scott, and Barlow because Hunter did not raise his claims of alleged failure to train
and supervise in any grievance before filing this action. See Morton v. Hall, 599
F.3d 942, 946 (9th Cir. 2010) (“[A] grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought.” (citation and internal quotation
marks omitted)).
The district court properly dismissed as to defendants Thompson and
Burnette because, although Hunter made complaints of harassment through Prison
Rape Elimination Act procedures, Hunter did not properly exhaust through the
Offender Grievance Program, and did not show that 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 omitted)); Sapp v. Kimbrell, 623 F.3d 813, 823-24, 826-27
(9th Cir. 2010) (describing limited circumstances where exhaustion might be
excused); Panaro v. City of N. Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (a
prisoner cannot constructively exhaust through participation in an internal
2 14-35252
investigation, which is not “equivalent to [the] assertion of a grievance in the
administrative procedure available at the [prison]”).
AFFIRMED.
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