Saul Pelayo v. G. Hernandez , 671 F. App'x 1000 ( 2016 )

FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL PELAYO, No. 15-16837
Plaintiff-Appellant, D.C. No. 5:13-cv-03618-RMW
v.
MEMORANDUM*
G. HERNANDEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted December 14, 2016 **
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
California state prisoner Saul Pelayo appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging federal claims. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
summary judgment on the basis of failure to exhaust administrative remedies.
*
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).
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment on Pelayo’s
retaliation claim because Pelayo failed to raise a genuine dispute of material fact as
to whether he properly exhausted administrative remedies or 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).” (emphasis, citation, and internal
quotation marks omitted)); Paramo, 775 F.3d at 1191 (a prisoner who does not
exhaust administrative remedies must show that “there is something particular in
his case that made the existing and generally available administrative remedies
effectively unavailable to him . . . .”); see also McBride v. Lopez, 807 F.3d 982,
987-88 (9th Cir. 2015) (to show that a threat rendered the prison grievance system
unavailable, a prisoner must show that he actually believed prison officials would
retaliate against him, and that his belief was objectively reasonable).
Pelayo’s motion to compel discovery, filed on July 7, 2016, is denied.
AFFIRMED.
2 15-16837