David Burns v. Tasheena Sandoval

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BURNS,
Plaintiff-Appellant,
v.
TASHEENA SANDOVAL; CLARK;
WALTER ROMERO; HAL
HOLLINGSWORTH; HAROLD BYRNE;
WILLIAM GITTERE; HEALER; TRAVIS,
C/O; HAMMEL; UNDERWOOD,
Defendants-Appellees.
No. 21-15409
D.C. No. 3:18-cv-00086-MMD-
CLB
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Nevada state prisoner David Burns appeals pro se from the district court’s
summary judgment for failure to exhaust administrative remedies in his 42 U.S.C.
* 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
JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-15409
§ 1983 action alleging deliberate indifference to safety and retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s ruling
on cross-motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085,
1090 (9th Cir. 2016). We affirm.
The district court properly granted summary judgment for defendants
because Burns failed to exhaust his administrative remedies and failed to raise a
genuine dispute of material fact as to whether administrative remedies were
effectively unavailable. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper
exhaustion requires “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)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.
2014) (en banc) (once the defendant has carried the burden to prove there was an
available administrative remedy, the burden shifts to the plaintiff to produce
evidence showing that administrative remedies were effectively unavailable to
him).
AFFIRMED.

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