John Robert Ganoe v. T. Abreu;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ROBERT GANOE,
Plaintiff-Appellant,
v.
T. ABREU; et al.,
Defendants-Appellees.
No. 17-16826
D.C. No. 2:16-cv-00019-GEB-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted February 13, 2017**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
John Robert Ganoe 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 safety. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.
* 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
FEB 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-16826
2014) (en banc). We vacate and remand.
The district court concluded that Ganoe failed to exhaust administrative
remedies because his grievance was untimely, and he failed to raise a genuine
dispute of material fact as to whether administrative remedies were effectively
unavailable. However, the record shows that on August 31, 2015, Ganoe
submitted a grievance explaining why he did not timely grieve the three beatings
that gave rise to this action. Specifically, Ganoe explained that he lacked the
necessary forms, he was permanently blinded from one of the beatings and
recovering in the infirmary for three months, and he suffered emotional trauma as a
result of the three beatings. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.
2010) (explaining that the Prison Litigation Reform Act does not require
exhaustion when circumstances render administrative remedies “effectively
unavailable”); Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(administrative remedies may be effectively unavailable where circumstances
render the prisoner unable to initiate the grievance process in a timely manner).
Because the district court did not expressly consider Ganoe’s evidence explaining
his delay in filing the grievance, we vacate and remand for further proceedings.
Appellees shall bear the costs on appeal.

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3 17-16826
VACATED and REMANDED.

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