Joshuwa Vinyard v. R. Gomez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUWA RALEIGH VINYARD, No. 18-15651
Plaintiff-Appellant, D.C. No. 3:16-cv-07389-WHA
v.
MEMORANDUM*
R. GOMEZ; W. WATERMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
California state prisoner Joshuwa Raleigh Vinyard appeals pro se from the
district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging constitutional violations. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747
*
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).
F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Vinyard
failed to exhaust administrative remedies and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable to
him. See Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (explaining that an
inmate must exhaust such administrative remedies as are available before bringing
suit, and describing limited circumstances in which administrative remedies are
unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (stating that proper
exhaustion requires “using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits)” (emphasis,
citation, and internal quotation marks omitted)).
We treat the judgment as a dismissal without prejudice. See O’Guinn v.
Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007) (“If the district court
concludes that the prisoner has not exhausted nonjudicial remedies, the proper
remedy is dismissal of the claim without prejudice.” (citation and internal
quotation marks omitted)).
AFFIRMED.
2 18-15651