Kenneth Williams v. D. Paramo ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 16 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH WILLIAMS, No. 19-55554
Plaintiff-Appellant, D.C. No.
3:17-cv-02475-CAB-NLS
v.
D. PARAMO; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted March 12, 2021**
San Francisco, California
Before: SILVERMAN, CHRISTEN, and R. NELSON, Circuit Judges.
Kenneth Williams, a California state prisoner, appeals pro se from the
district court’s order granting summary judgment in favor of defendants for failure
to exhaust administrative remedies in his 42 U.S.C. § 1983 action alleging First
*
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).
and Fourteenth Amendment violations. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s order granting summary judgment,
Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), and we affirm.1
The district court properly granted summary judgment because Williams
failed to exhaust administrative remedies, and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable to
him. See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
exhaustion is mandatory under the [Prison Litigation Reform Act] and that
unexhausted claims cannot be brought in court.”); see also Ross v. Blake, 136 S.
Ct. 1850, 1859–60 (2016) (setting forth circumstances when administrative
remedies are deemed unavailable). Williams did not pursue third level review of
his grievance even though he was not fully satisfied with the prison’s response at
the second level. See Brown v. Valoff, 422 F.3d 926, 941–43 (9th Cir. 2005)
(explaining an inmate must fully exhaust administrative remedies when any
remedy remains available to him, even if he has been afforded some measure of
administrative relief). Because Williams did not exhaust available administrative
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Because the parties are familiar with the facts, we recite only those
facts necessary to resolve the issues on appeal.
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remedies, the district court did not err by granting summary judgment in favor of
defendants. See Jones, 549 U.S. at 211.
On appeal, Williams argues he should have been granted leave to amend his
complaint before the district court entered summary judgment. We conclude
amendment would have been futile because it would not cure Williams’ failure to
exhaust available administrative remedies. Schucker v. Rockwood, 846 F.2d 1202,
1203–04 (9th Cir. 1988) (per curiam) (holding a district court need not grant leave
to amend if it is “absolutely clear that the deficiencies of the complaint could not
be cured by amendment” (internal quotation marks and citation omitted)).
AFFIRMED.
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