Adrien Espinoza v. Jourdain Richter

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIEN JOSHUA ESPINOZA, No. 16-15964
Plaintiff-Appellant, D.C. No. 4:13-cv-00683-DCB
v.
MEMORANDUM*
JOURDAIN RICHTER, Correctional
Officer III; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted March 16, 2018**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Arizona state prisoner Adrien Joshua Espinoza appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants violated his constitutional rights to bodily privacy and to be free from
the application of excessive force. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo the district court’s summary judgment and decision on
qualified immunity. Long v. City & Cty of Honolulu, 511 F.3d 901, 905 (9th Cir.
2007). We may affirm on any basis supported by the record. Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Summary judgment was proper on each of Espinoza’s constitutional claims
because Defendants have shown an available administrative remedy that Espinoza
did not exhaust as required by the Prison Litigation Reform Act, and Espinoza has
failed to show that the remedy was effectively unavailable to him. Albino v. Baca,
747 F.3d 1162, 1172 (9th Cir. 2014). The record conclusively demonstrates that he
did not comply with this statutory requirement. Accordingly, he was not entitled to
judicial relief on any of his claims. Woodford v. Ngo, 548 U.S. 81, 88–89 (2006).
“Exhaustion is no longer left to the discretion of the district court, but is
mandatory.” Id. at 85. “[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).” Id. at 90 (citation and internal quotation
marks omitted).
The district court did not abuse its discretion by dismissing defendant
Murtaugh due to Espinoza’s failure to serve him with process, or defendants Crede
and Ramirez, against whom Espinoza alleged an Eighth Amendment medical
deliberate indifference claim. No further extension of time for service was
2 16-15964
warranted as to any of these defendants. See Fed. R. Civ. P. 4(m); Efaw v.
Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (discussing district court’s broad
discretion and factors to consider in deciding whether to extend time for service).
AFFIRMED.
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