Travis Thompson v. Alvarez , 479 F. App'x 776 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRAVIS RAY THOMPSON, No. 11-16546
Plaintiff - Appellant, D.C. No. 1:07-cv-00572-OWW-
SMS
v.
ALVAREZ; et. al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
California state prisoner Travis Ray Thompson appeals pro se from the
district court’s judgment dismissing his action alleging civil rights violations under
42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo the district court’s dismissal for failure to state a claim under 28 U.S.C.
§ 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and for failure to
exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and review for
abuse of discretion the denial of a motion for appointment of counsel, Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). We affirm in part, reverse in part, and
remand.
The district court properly dismissed Thompson’s excessive force claims
against defendants Alvarez and Redenius because Thompson failed to exhaust
administrative remedies with respect to these claims. See Woodford v. Ngo, 548
U.S. 81, 85, 93-95 (2006) (holding that “proper exhaustion” is mandatory and
requires adherence to administrative procedural rules); Sapp v. Kimbrell, 623 F.3d
813, 823-24 (9th Cir. 2010) (to fall within the futility exception to the
administrative exhaustion requirement the inmate must, inter alia, “establish that he
actually filed a grievance or grievances”).
For the reasons stated in the district court order entered October 5, 2009, we
affirm the dismissal of the remaining claims alleged in Thompson’s third amended
complaint, save for the claims arising after Thompson filed his initial complaint on
April 13, 2007.
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Relying on this court’s decision in McKinney v. Carey, 311 F.3d 1198,
1199-1201 (9th Cir. 2002) (per curiam), the district court categorically dismissed
Thompson’s claims arising from events that occurred after April 13, 2007, as these
claims were not fully exhausted at the time Thompson filed his initial complaint.
Subsequent to the court’s screening order in this case, we clarified that the Prison
Litigation Reform Act’s exhaustion requirement is satisfied so long as the plaintiff
has exhausted his administrative remedies with respect to the new claims asserted
in his amended complaint before he tendered that complaint to the court for filing.
Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010). We therefore reverse
the portion of the court’s order dismissing the claims that arose after the filing of
the initial complaint, and remand to the district court for further proceedings.
The district court did not abuse its discretion in denying Thompson’s
multiple requests for appointment of counsel because Thompson failed to
demonstrate exceptional circumstances. See Palmer, 560 F.3d at 970.
To the extent Thompson’s “notice of lodgment of exhibits” received on June
1, 2012, is a request for judicial notice of documents not contained in the record,
the request is denied.
Thompson’s remaining contentions, including his contention that this court
erred in dismissing his interlocutory appeal, are unpersuasive.
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The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part; REMANDED.
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