Elmer Moreno Mendoza v. Captain Aguilar, individual capacity as Facility Central Captain

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER MORENO MENDOZA,
Plaintiff-Appellant,
v.
CAPTAIN AGUILAR, individual capacity
as Facility Central Captain,
Defendant-Appellee.
No. 18-15564
D.C. No. 3:16-cv-05529-EDL
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding**
Submitted December 17, 2018***
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
California state prisoner Elmer Moreno Mendoza appeals pro se from the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging failure-to-protect and due process claims. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca,
747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.
The district court properly granted summary judgment because Mendoza
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)); Sapp v. Kimbrell, 623 F.3d 813, 823-24, 826-27 (9th Cir. 2010)
(describing limited circumstances under which exhaustion may be effectively
unavailable). Because we affirm the district court’s summary judgment on the
basis of Mendoza’s failure to exhaust administrative remedies, we treat the
judgment as being entered without prejudice. See Lira v. Herrera, 427 F.3d 1164,
1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice
when there is no presuit exhaustion[.]” (emphasis, citation, and internal quotation
marks omitted)).
We reject as unsupported by the record Mendoza’s contention that the
district court failed to dispose of his pending motions.

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We do not consider matters raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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