ALFRED KING V. CALIFORNIA DEPARTMENT OF CORR, No. 15-15209 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 20 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ALFRED KING, No. Plaintiff-Appellant, U.S. COURT OF APPEALS 15-15209 D.C. No. 2:13-cv-02010-MCECKD v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; CALIFORNIA DEPARTMENT OF CORRECTIONS, MEMORANDUM* Defendants, and C. FERGUSON; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Submitted April 11, 2017** Before: GOULD, CLIFTON, and HURWITZ, 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). California state prisoner Alfred King 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 deliberate indifference to his health. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm. The district court properly granted summary judgment because King 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)). We treat the judgment as a dismissal without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice when there is no presuit exhaustion . . . .” (citation and internal quotation marks omitted)). 2 15-15209 King’s motion to take judicial notice (Docket Entry No. 21) is denied. AFFIRMED. 3 15-15209
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