United States v. 2020-08-10 | 19-55909 | LARRY CLEVELAND V. LOS ANGELES CO SHERIFF'SDEPT | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LARRY CHARLES CLEVELAND,
Plaintiff-Appellant,
v.
LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT; ZASORTIN, Dr.,
individual; FELAHY, Dr., individual;
TEOPHILOV, Chief Medical Phsician as
individual; JOHNSON, RN as individual;
JOHNSON, Commander, Deputy Sheriff
as individual; FRECHETTE, Medical
Senior as individual; COOLEY, Deputy,
TST Transportation Driver as individual; J.
PERA, Deputy Sheriff as individual,
Defendants-Appellees,
and
B. AVALOS, Deputy Sheriff as
individual; LEROY D. BACA, official
capacity as Ex-Sheriff of the Los Angeles
County Jail; CECI BARAJAS, TST
Sergeant as individual; BLEAU, Deputy
Sheriff as individual; CASTILLO,
Sergeant, Deputy Sheriff as individual; DE
No. 19-55909
D.C. No.
2:15-cv-01399-DSF-GJS
MEMORANDUM
*
FILED
AUG 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

LA ROSA, Sergeant, Deputy Sheriff as
individual; JOHN DOE, TST
Transportation Driver as individual;
ECKHADI, Nurse Manager as individual;
ENRIQUZ, MD as individual; ELLEO O.
GONZAQUE, Medical Supervisor-SSNIS
as individual; HEANG, Deputy Sheriff as
individual; HEATER, Deputy Sheriff as
individual; KAYARZZE, MD as
individual; LAFAVE, Lieutenant, Deputy
Sheriff as individual; MALDONADO,
Lieutenant, Deputy Sheriff as individual;
MOGO, County Assistant as individual;
MURILLO, Medical Lieutenant as
individual; ORNELAS, Captain, Deputy
Sheriff as individual; PEFORCELLY,
Sergeant, Deputy Sheriff as individual;
PHILLIAUS, Medical Sergeant as
individual; PONCE, Sergeant, Individual;
SADDLER, Jr., MD as individual;
SANCHEZ, Deputy Sheriff, Medical
Senior as individual; JOHN SCOTT,
Interim Sheriff, individual and official
capacity; TAYLOR, Third Watch Sergeant
in 1750 as individual; WELLS, Lieutenant,
Deputy Sheriff as individual;
WILLMORE, MD as individual; WYATT,
Sergeant, Deputy Sheriff as individual,
Defendants.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
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Submitted August 6, 2020
**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Larry Cleveland, a person incarcerated in a California state prison, appeals
pro se from the district court’s judgment dismissing without prejudice his 42
U.S.C. § 1983 action for failure to exhaust administrative remedies as required by
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust
administrative remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). We
affirm.
1. The notice requirements of Rand v. Rowland, 154 F.3d 952, 955 (9th Cir.
1998) (en banc), were satisfied in this case. Under Rand, a pro se prisoner must be
given fair notice of the requirements of Federal Rule of Civil Procedure 56. See id.
at 962. The day after defendants filed their motion for summary judgment in this
case, the district court issued the required Rand notice. Cleveland argues that this
notice was insufficient because it came from the court and not the defendants;
however, a Rand notice may be provided by the district court or the moving party.
See id. at 960. Therefore, there was no Rand error.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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2. The district court properly granted summary judgment on Cleveland’s
claims because Cleveland did not properly exhaust his administrative remedies and
did not show that administrative remedies were effectively unavailable to him. 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).”); Sapp v. Kimbrell, 623
F.3d 813, 823–24 (9th Cir. 2010) (for administrative remedies to be effectively
unavailable, “the inmate must establish (1) that he actually filed a grievance or
grievances that, if pursued through all levels of administrative appeals, would have
sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that
prison officials screened his grievance or grievances for reasons inconsistent with
or unsupported by applicable regulations”).
AFFIRMED.
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