Theodore Newton v. S. Eatmon ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE J. NEWTON, No. 19-56478
Plaintiff-Appellant, D.C. No. 3:19-cv-00511-LAB-
KSC
v.
S. EATMON, Correctional Officer, MEMORANDUM*
Defendant-Appellee,
and
T. VILLANUEVA, SSA, Appeals
Coordinator,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
California state prisoner Theodore J. Newton appeals pro se from the district
*
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).
court’s summary judgment for failure to exhaust his administrative remedies in his
42 U.S.C. § 1983 action alleging constitutional violations. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162,
1168 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Newton
failed to exhaust his 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) (“[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
and internal quotation marks omitted)); McKinney v. Carey, 311 F.3d 1198, 1199-
1200 (9th Cir. 2002) (requiring inmates to exhaust administrative remedies prior to
filing suit in federal court).
We treat the judgment as a dismissal without prejudice to Newton refiling
the action. See McKinney, 311 F.3d at 1200-01.
AFFIRMED.
2 19-56478