James Cato, Jr. v. J. Dumont

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES CATO, Jr., No. 16-16447
Plaintiff-Appellant, D.C. No. 1:14-cv-00564-LJO-SAB
v.
MEMORANDUM*
J. A. DUMONT,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
California state prisoner James Cato, Jr., appeals pro se from the district
court’s summary judgment for failure to exhaust administrative remedies in his 42
U.S.C. § 1983 action arising out of his placement in administrative segregation.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo 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 legal rulings on exhaustion and for clear error the district court’s findings
on disputed issues of material fact relevant to exhaustion. Albino v. Baca, 747
F.3d 1162, 1171 (9th Cir. 2014) (en banc). We affirm.
The district court did not clearly err by finding that Cato’s grievance was
untimely and that Cato did receive a response to his grievance but failed to exhaust
his administrative remedies to the highest level. See id. at 1170-71 (“[D]isputed
factual questions relevant to exhaustion should be decided by the judge, in the
same manner a judge rather than a jury decides disputed factual questions relevant
to jurisdiction and venue.”). Thus, the district court properly granted summary
judgment because Cato failed to raise a genuine dispute of material fact as to
whether he properly exhausted administrative remedies or whether administrative
remedies were effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850,
1858-60 (2016) (setting forth circumstances when administrative remedies are
unavailable); 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,
internal quotation marks, and emphasis omitted)).
AFFIRMED.
2 16-16447