David Diehl v. Unknown Mendez ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID A. DIEHL, No. 17-16852
Plaintiff-Appellant, D.C. No. 4:13-cv-01996-JAS
v.
MEMORANDUM*
UNKNOWN MENDEZ, named as SIA
(FNU) Mendez / each and all in his/her
individual and official capacity;
UNKNOWN HANSEN, named as Unit
Team Manager (FNU) Hansen / each and all
in his/her individual and official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.
David A. Diehl, a federal prisoner, appeals pro se from the district court’s
summary judgment in his action under Bivens v. Six Unknown Named Agents of
*
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).
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging First Amendment
retaliation claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a district court’s legal rulings on exhaustion. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Diehl did not
properly exhaust prison grievance procedures, and Diehl failed to raise a genuine
dispute of material fact as to whether there was “something in his particular case
that made the existing and generally available administrative remedies effectively
unavailable to him.” Id. at 1172; see also Woodford v. Ngo, 548 U.S. 81, 90
(2006) (the Prison Litigation Reform Act requires “proper exhaustion,” which
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)); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“[A] grievance
[only] 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 did not abuse its discretion by denying Diehl leave to
amend his complaint because amendment would have been futile. See Cervantes
v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting
forth standard of review and stating that leave to amend may be denied where
amendment would be futile).
2 17-16852
Diehl’s motion to seal his reply brief (Docket Entry No. 35) is granted. The
Clerk shall file the reply brief under seal.
AFFIRMED.
3 17-16852