Alfred King v. California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED KING,
Plaintiff-Appellant,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; CALIFORNIA
DEPARTMENT OF CORRECTIONS,
Defendants,
and
C. FERGUSON; et al.,
Defendants-Appellees.
No. 15-15209
D.C. No. 2:13-cv-02010-MCE-
CKD
MEMORANDUM*
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).
FILED
APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-15209
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)).

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3 15-15209
King’s motion to take judicial notice (Docket Entry No. 21) is denied.
AFFIRMED.

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