Wayne Jerome Robertson v. R. D. VANZANDT, Lieutenant;

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).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE JEROME ROBERTSON,
Plaintiff - Appellant,
v.
R. D. VANZANDT, Lieutenant; et al.,
Defendants - Appellees.
No. 08-16022
D.C. No. 1:03-cv-06070-LJO-GSA
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Wayne Jerome Robertson, a California state prisoner, appeals pro se from
the district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional
FILED
JAN 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violations in connection with his placement in prison housing where he was
attacked by other inmates. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s dismissal for failure to exhaust administrative
remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and its summary
judgment, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002), and we affirm.
The district court properly determined that, because Robertson’s grievance
was rejected as untimely, it did not serve to exhaust his claims against defendants
VanZandt, Arvizu, Walters, Vaughn, Farris, McDaniel, Lomonaco, and Gabaldon.
See Woodford v. Ngo, 548 U.S. 81, 83-84, 95 (2006) (holding that “proper
exhaustion” under 42 U.S.C. § 1997 is mandatory and cannot be satisfied “by
filing an untimely or otherwise procedurally defective administrative grievance or
appeal”). Moreover, Robertson’s contention that his pro bono counsel advised him
that he had properly exhausted his administrative remedies is unpersuasive where
this advice was given after Robertson’s grievance had already been rejected as
untimely.
The district court properly granted summary judgment to defendant Decker
because the record is devoid of any evidence to suggest that he acted with
deliberate indifference to a substantial risk of harm to Robertson’s safety. See
Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere

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allegation and speculation do not create a factual dispute for purposes of summary
judgment.”).
Robertson’s remaining contentions are unpersuasive.
AFFIRMED.

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