Fox Joseph Salerno v. State of Arizona;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOX JOSEPH SALERNO,
Plaintiff - Appellant,
v.
STATE OF ARIZONA; et al.,
Defendants - Appellees.
No. 11-17731
D.C. No. 2:11-cv-01132-ROS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Fox Joseph Salerno, an Arizona state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his medical needs in connection with an alleged attack by a prison
FILED
JAN 02 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-17731 2
correctional officer. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (dismissal for failure
to exhaust); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under
28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Salerno’s claims against the state of
Arizona and defendants in their official capacities because those claims are barred
by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984) (“[I]n the absence of consent a suit in which the State or
one of its agencies or departments is named as the defendant is proscribed by the
Eleventh Amendment.”); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)
(state officials sued in their official capacities are generally entitled to Eleventh
Amendment immunity); Cal. Franchise Tax Bd. v. Jackson (In re Jackson), 184
F.3d 1046, 1048 (9th Cir. 1999) (“Eleventh Amendment sovereign immunity limits
the jurisdiction of the federal courts and can be raised . . . by the court sua
sponte.”).
The district court properly dismissed Salerno’s deliberate indifference
claims because Salerno failed to exhaust available administrative remedies prior to
filing suit. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (concluding that
“proper exhaustion” is mandatory and requires adherence to administrative

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procedural rules); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per
curiam) (requiring exhaustion of administrative remedies prior to filing suit).
AFFIRMED.

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