Dwayne Giles v. TOM FELKER, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWAYNE GILES,
Plaintiff-Appellant,
v.
TOM FELKER, Warden; et al.,
Defendants-Appellees.
No. 16-15683
D.C. No. 2:11-cv-01825-WBS-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Dwayne Giles 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 medical needs. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,
* 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
APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-15683
775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Giles did not
exhaust his claims prior to filing this action and failed to raise a genuine dispute of
material fact as to whether there was “something in his particular case that made
the existing and generally available administrative remedies effectively unavailable
to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc); see also
Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006) (to properly exhaust, “a prisoner
must complete the administrative review process in accordance with the applicable
procedural rules”); Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005)
(argument that delay in responding to a grievance caused administrative remedies
to be effectively unavailable must be supported by facts showing that prisoner was
prejudiced by the delay); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir.
2002) (exhaustion must be completed before a § 1983 action is filed; exhaustion
during the pendency of the litigation is insufficient because exhaustion is a
precondition to suit).
Contrary to Giles’s contention, exhaustion of administrative remedies before
filing an amended complaint alleging the same claims does not constitute proper
exhaustion. See Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014)

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3 16-15683
(explaining exception to exhaustion during pendency of action where new claims
are alleged in amended complaint).
We reject as without merit Giles’s contentions that the district court was
required to address exhaustion at screening and that defendants waived exhaustion
by not raising it in a motion to dismiss.
Giles’s motion (Docket Entry No. 36) is denied.
AFFIRMED.

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