Thurman Gaines v. E. Horowitz ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THURMAN GAINES, No. 22-15263
Plaintiff-Appellant, D.C. No.
1:15-cv-00587-JLT-SAB
v.
E. HOROWITZ, Dr.; MCSP, MEMORANDUM*
Defendant-Appellee,
and
CALIFORNIA DEPARTMENT OF
CORRECTIONS; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, District Judge, Presiding
Submitted March 22, 2023**
San Francisco, California
Before: WALLACE, SILVERMAN, N.R. SMITH, Circuit Judges.
*
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).
Thurman Gaines appeals from the district court’s dismissal of his claim for
failure to exhaust administrative remedies. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review legal conclusions concerning exhaustion de novo and
factual findings for clear error. See Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.
2014) (en banc). We review a district court’s imposition of discovery sanctions and
exclusion of evidence for abuse of discretion. See Payne v. Exxon Corp., 121 F.3d
503, 507 (9th Cir. 1997); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1027
(9th Cir. 2003). We affirm.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires that a
prisoner exhaust “administrative remedies as are available” before filing an action
to challenge prison conditions. This is an affirmative defense that must be proved
by a defendant. See Jones v. Bock, 549 U.S. 199, 216 (2007). In particular, the
defendant bears the burden to prove that the prison had “an available administrative
remedy” and that “the prisoner did not exhaust that available remedy.” Albino, 747
F.3d at 1172. After the defendant makes such a showing, the plaintiff bears the
burden of production to establish that “there is something in his particular case that
made the existing and generally available administrative remedies effectively
unavailable to him.” Id.The district court did not err in concluding that Gaines did not exhaust his
administrative remedies. The district court did not clearly err in finding that the
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prison had a generally available grievance process, as Gaines failed to rebut the
Defendants’ evidence and establish that the prison had a history of misplacing or
losing grievances in a manner that made the process generally unavailable. Nor did
the district court clearly err in concluding that Gaines did not file, and the prison did
not lose, his grievance, and therefore the grievance process was not effectively
unavailable to him. See Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017).
The district court did not abuse its discretion in excluding two inmate
declarations as an evidentiary sanction, as Gaines failed to disclose timely this
evidence and the sanction did not amount to a dismissal. See R&R Sails, Inc. v. Ins.
Co. of Pa., 673 F.3d 1240, 1247 (9th Cir. 2012).
The district court did not abuse its discretion in excluding the California
Office of the Inspector General report, as Gaines has not established that his failure
to provide this report in discovery was substantially justified or harmless. See
Merchant v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021).
The Appellees’ motion for leave to transmit exhibits is granted.
AFFIRMED.
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