DARRIN GASPER V. S. SANCHEZ, No. 16-55760 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 21 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DARRIN M. GASPER, U.S. COURT OF APPEALS No. 16-55760 Plaintiff-Appellant, D.C. No. 3:15-cv-01118-BENJMA v. S. SANCHEZ, Security Captain at RJDSP; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted April 11, 2017** Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges. Darrin M. Gasper, a California state prisoner, appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 and Americans with Disabilities Act action alleging retaliation and disability discrimination. We have jurisdiction under 28 U.S.C. § 1291. We * 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). review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm. The district court properly granted summary judgment because Gasper failed to raise a genuine dispute of material fact as to whether he properly exhausted his administrative remedies or whether administrative remedies were effectively unavailable to him. See 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).” (emphasis, citation, and internal quotation marks omitted)); Sapp v. Kimbrell, 623 F.3d 813, 823-24, 826-27 (9th Cir. 2010) (describing limited circumstances under which exhaustion may be excused). Gasper’s challenge to the district court’s failure to resolve his motion for a preliminary injunction is moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when underlying claims have been decided, the reversal of a denial of a preliminary injunction would have no practical consequences, and the issue is therefore moot). We reject as meritless Gasper’s contention that the district court erred in failing to return conformed copies of filings. Defendants’ request for judicial notice (Docket Entry No. 14) is granted. AFFIRMED. 2 16-55760
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