Timothy Ray Baker v. F. VILLALOBOS, Sergeant;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY RAY BAKER,
Plaintiff-Appellant,
v.
F. VILLALOBOS, Sergeant; et al.,
Defendants-Appellees.
No. 22-55198
D.C. No.
2:18-cv-02301-PA-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted August 28, 2023**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Timothy Ray Baker, a state prisoner proceeding pro se, sued Defendants for
excessive force and deliberate indifference under 42 U.S.C. § 1983. Baker appeals
from the district court’s order granting summary judgment to Defendants based on
Baker’s failure to exhaust his administrative remedies under the Prison Litigation
* 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
AUG 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Reform Act (PLRA), 42 U.S.C. § 1997e. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
We review de novo the district court’s grant of summary judgment, viewing
the evidence in Baker’s favor. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.
2014) (en banc). To establish failure to exhaust under the PLRA, Defendants must
“prove that there was an available administrative remedy, and that the prisoner did
not exhaust that available remedy.” Id. at 1172. If Defendants satisfy that burden,
“the burden shifts to the prisoner to come forward with evidence showing that
there is something in his particular case that made the existing and generally
available administrative remedies effectively unavailable to him.” Id.
Even assuming without deciding that Baker’s administrative grievance
properly raised his excessive force and deliberate indifference claims, he failed to
exhaust the available administrative remedies, as his administrative appeal was
properly rejected for failure to submit all the necessary supporting documents. See
Cal. Code Regs. tit. 15, § 3084.6(b)(7); see also id. §§ 3084(h), 3084.3(a).1
Contrary to Baker’s assertion, the record shows that he never submitted the
missing documents. Thus, the burden shifts to Baker to show that the
administrative remedies were effectively unavailable to him. See Albino, 747 F.3d
1 All citations to the California Code of Regulations are to the versions in effect
from 2015 to 2016, when Baker filed and appealed his grievance.

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at 1172.
We reject Baker’s argument that the administrative remedies were
effectively unavailable because they were confusing or incapable of use. While
some of the prison’s correspondence to Baker was unclear, the prison’s letter dated
August 17, 2016, stated that Baker’s resubmitted administrative appeal had been
rejected because it was missing pages of a necessary document, that he had not
exhausted the administrative process due to the rejection, and that his
administrative appeal would remain rejected “barring any extenuating
circumstances.” This letter clearly informed Baker of the deficiencies in his appeal
and explained that Baker could still challenge the rejection. But Baker chose not to
challenge the rejection even though he understood he could do so.
In sum, we affirm because there is no genuine dispute that Baker failed to
exhaust the available administrative remedies as to his excessive force and
deliberate indifference claims, and such remedies were not effectively unavailable
to him.
AFFIRMED.2
2 Baker’s pending motions are denied. Dkt. Nos. 13 and 32.

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