Robert Hackworth, Jr. v. S. Tomlinson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HACKWORTH, Jr., No. 19-16239
Plaintiff-Appellant, D.C. No. 5:17-cv-05569-BLF
v.
MEMORANDUM*
S. TOMLINSON,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
California state prisoner Robert Hackworth, 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 alleging First Amendment retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,
*
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).
775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Hackworth
failed to exhaust his administrative remedies, and failed to raise a genuine dispute
of material fact as to whether administrative remedies were effectively unavailable.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (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)” (citation and internal quotation marks
omitted)); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner’s
grievance must “alert[ ] the prison to the nature of the wrong for which redress is
sought” (citation and internal quotation marks omitted)).
We reject as meritless Hackworth’s contention that defendants should have
raised the exhaustion defense in a motion to dismiss rather than a motion for
summary judgment. See Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en
banc).
AFFIRMED.
2 19-16239