James Hunter v. M. Pulicicchio ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES RAY HUNTER, No. 21-16513
Plaintiff-Appellant, D.C. No. 4:18-cv-00351-RCC
v.
MEMORANDUM*
M. PULICICCHIO, named as Captain M.
Pulicicchio; ARIZONA DEPARTMENT OF
CORRECTIONS; DANIELLA STIMPLE,
Deputy Warden; THOMAS, named as C.O.
IV Thomas; UNKNOWN PARTIES, named
as Jane/John Doe A.D.O.C. Constituent
Service Manager,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
Arizona state prisoner James Ray Hunter 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 in his 42 U.S.C. § 1983 action alleging retaliation. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung,
391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Hunter’s claim
relating to Stimple’s investigation of the visitation grievance because Hunter failed
to raise a genuine dispute of material fact as to whether his constitutional rights
were violated. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)
(setting forth the requirements of a retaliation claim in the prison context).
The district court properly granted summary judgment on Hunter’s claim
relating to Stimple’s subsequent alleged retaliatory conduct because Hunter failed
to exhaust his administrative remedies and he failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable.
See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (once the defendant has
carried the burden to prove there was an available administrative remedy, the
burden shifts to the plaintiff to produce evidence showing that administrative
remedies were effectively unavailable to him). Although Hunter has submitted
documents on appeal demonstrating his efforts to exhaust, we do not consider
documents and facts not presented to the district court. See United States v. Elias,
921 F.2d 870, 874 (9th Cir. 1990).
AFFIRMED.
2 21-16513