THEODORE NEWTON V. S. EATMON, No. 19-56478 (9th Cir. 2020)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 10 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT THEODORE J. NEWTON, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 19-56478 D.C. No. 3:19-cv-00511-LABKSC v. S. EATMON, Correctional Officer, MEMORANDUM* Defendant-Appellee, and T. VILLANUEVA, SSA, Appeals Coordinator, Defendant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted December 2, 2020** Before: WALLACE, CLIFTON, and BRESS, Circuit Judges. California state prisoner Theodore J. Newton appeals pro se from the district * 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). court’s summary judgment for failure to exhaust his 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 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm. The district court properly granted summary judgment because Newton failed to exhaust his administrative remedies and failed to raise a genuine dispute of material fact as to 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).” (citation and internal quotation marks omitted)); McKinney v. Carey, 311 F.3d 1198, 11991200 (9th Cir. 2002) (requiring inmates to exhaust administrative remedies prior to filing suit in federal court). We treat the judgment as a dismissal without prejudice to Newton refiling the action. See McKinney, 311 F.3d at 1200-01. AFFIRMED. 2 19-56478

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