Lenin Garcia v. E. MORENO, Correction Officer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LENIN GARCIA,
Plaintiff-Appellant,
v.
E. MORENO, Correction Officer; M.
HARRIS, Sergeant; E. SILVA, Lieutenant;
D. HICKS, Correctional Officer; H.
HINOJOSA, Correctional Officer; M.
SILVA, Correctional Officer; PENA,
Correctional Officer; SEGURA, Correctional
Officer,
Defendants-Appellees.
No. 20-17276
D.C. No. 1:18-cv-00014-DAD-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
California state prisoner Lenin Garcia appeals pro se from the district court’s
* 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
MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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summary judgment for failure to exhaust administrative remedies in his 42 U.S.C.
§ 1983 action alleging various constitutional claims. We have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s legal rulings on
exhaustion and for clear error the district court’s findings on disputed issues of
material fact relevant to exhaustion. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.
2014) (en banc). We affirm.
The district court properly granted summary judgment because Garcia failed
to exhaust his administrative remedies and failed to raise a genuine dispute of
material fact as to whether administrative remedies were effectively unavailable.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “using
all steps that the agency holds out and doing so properly (so that the agency
addresses the issues on the merits)” (emphasis, citation, and internal quotation
marks omitted)); Albino, 747 at 1172 (once the defendant has carried the burden to
prove there was an available administrative remedy, the burden shifts to the
plaintiff to produce evidence showing that administrative remedies were
effectively unavailable to him).
The district court did not abuse its discretion in excluding certain portions of
Garcia’s testimony and certain of his exhibits where that evidence contained
hearsay, see United States v. Torres, 794 F.3d 1053, 1061 (9th Cir. 2015), violated
the best evidence rule, see L.A. News Serv. v. CBS Broadcasting, Inc., 305 F.3d

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924, 935-36 (9th Cir. 2002), amended by 313 F.3d 1093 (9th Cir. 2002), or was
irrelevant, see Mulligan v. Nichols, 835 F.3d 983, 992 (9th Cir. 2016).
The district court did not abuse its discretion by awarding costs to
defendants under Federal Rule of Civil Procedure 54(d)(1). See Draper v. Rosario,
836 F.3d 1072, 1087 (9th Cir. 2016) (“We have interpreted Rule 54(d)(1) as
creating a presumption for awarding costs to prevailing parties; the losing party
must show why costs should not be awarded.” (citation and internal quotation
marks omitted)).
We reject as meritless Garcia’s contention that the district court should have
provided him with a free transcript of the evidentiary hearing.
AFFIRMED.

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