Brian P. Hunter v. K. SORHIEM, Correctional Officer, in individual and official capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN P. HUNTER,
Plaintiff-Appellant,
v.
K. SORHIEM, Correctional Officer, in
individual and official capacity,
Defendant-Appellee.
No. 18-55555
D.C. No.
2:15-cv-09253-DMG-SK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted October 25, 2019**
San Francisco, California
Before: MELLOY,*** BYBEE, and N.R. SMITH, Circuit Judges.
FILED
NOV 04 2019
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

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Brian P. Hunter appeals from the district court’s grant of summary judgment
dismissing his 42 U.S.C. § 1983 action, without prejudice, for failure to exhaust
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). See Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (“The
Prison Litigation Reform Act requires that a prisoner exhaust available
administrative remedies before bringing a federal action . . . .”). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
summary judgment dismissal for failure to exhaust. Talamantes v. Leyva, 575 F.3d
1021, 1023 (9th Cir. 2009). We affirm.
Hunter argues that he exhausted all available remedies because an appeal of
the cancellation was unavailable to him. However, subsections 3084.6(e) and
3084.6(a)(4) of California Code of Regulations Title 15 provide various methods
to appeal the cancellation. Subsection 3084.6(e) allows for an appeal of the
cancellation based on the application of the cancellation rules. Additionally,
subsection 3084.6(e) refers to subsection 3084.6(a)(3), which provides a cancelled
appeal may later be accepted on the grounds that the “cancellation was made in
error or new information is received which makes the appeal eligible for further
review.” Finally, subsection 3084.6(a)(4) provides a catch-all provision that allows
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“any appeal” to be accepted if it is determined that the “appeal should be subject to
further review.” (emphasis added).
Hunter makes other arguments as to why an appeal of the cancellation
decision was unavailable to him. However, none of these arguments carry his
burden of showing that an administrative remedy was unavailable. See Albino v.
Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (holding that the prisoner has the
burden “to come forward with evidence showing that there is something in his
particular case that made the existing and generally available administrative
remedies effectively unavailable to him”).
Accordingly, because Hunter failed to appeal the cancellation decision, the
district court properly dismissed for failure to exhaust.
AFFIRMED.
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