Duane Whitmore v. M. Dante, C.o.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE WHITMORE,
Plaintiff-Appellant,
v.
M. DANTE, C.O.; et al.,
Defendants-Appellees.
No. 17-15305
D.C. No. 2:14-CV-00887-JAD-
VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer Dorsey, District Judge, Presiding
Submitted February 15, 2018**
San Francisco, California
Before: HAWKINS and TALLMAN, Circuit Judges, and MURPHY,*** District
Judge.
* 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).
*** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Nevada state prisoner Duane Whitmore appeals from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging constitutional claims
and the court’s denial of his motion for reconsideration. We have jurisdiction under
28 U.S.C. § 1291, and review the grant of a motion for summary judgment de
novo, Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015), and denial of a
motion for reconsideration for an abuse of discretion, Phelps v. Alameida, 569 F.3d
1120, 1131 (9th Cir. 2009).
The district court properly granted summary judgment for defendants
because Whitmore failed to raise a genuine dispute of material fact as to whether
he properly exhausted his available administrative remedies as required by the
Prison Litigation Reform Act, or whether administrative remedies were effectively
unavailable. See 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).”)
(internal citation omitted); Williams, 775 F.3d at 1191 (a prisoner who does not
exhaust administrative remedies must show that “there is something particular in
his case that made the existing and generally available administrative remedies
effectively unavailable to him”). Moreover, the PLRA’s exhaustion language is
mandatory. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).

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3
Summary judgment for defendants was proper because Whitmore failed to
raise a genuine dispute of material fact as to whether defendants’ requirement that
Whitmore file an amended grievance under the first grievance number made
generally available administrative remedies effectively unavailable to him.
Accordingly, the district court’s denial of Whitmore’s motion for reconsideration
was not an abuse of discretion.
AFFIRMED.

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