Filed: Aug. 26, 2016
Latest Update: Mar. 03, 2020
Summary: FILED NOT FOR PUBLICATION AUG 26 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BOBBY SHANE CHARLTON, No. 14-35450 Plaintiff-Appellant, D.C. No. 6:09-cv-01246-TC v. MEMORANDUM* OREGON DEPARTMENT OF CORRECTION; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Submitted August 16, 2016** Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges. Oregon s
Summary: FILED NOT FOR PUBLICATION AUG 26 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BOBBY SHANE CHARLTON, No. 14-35450 Plaintiff-Appellant, D.C. No. 6:09-cv-01246-TC v. MEMORANDUM* OREGON DEPARTMENT OF CORRECTION; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Submitted August 16, 2016** Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges. Oregon st..
More
FILED
NOT FOR PUBLICATION AUG 26 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY SHANE CHARLTON, No. 14-35450
Plaintiff-Appellant, D.C. No. 6:09-cv-01246-TC
v.
MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Oregon state prisoner Bobby Shane Charlton appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
U.S.C. § 1983 action alleging an Eighth Amendment claim arising out of allegedly
*
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).
inadequate medical care. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s legal conclusions on exhaustion and for clear
error its factual determinations. Albino v. Baca,
747 F.3d 1162, 1171 (9th Cir.
2014) (en banc). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP,
534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal of Charlton’s Eighth Amendment claim against defendant Lytle
was proper because, even assuming that Charlton appealed the 2009 grievance to
the first level, Charlton did not properly exhaust his appeal through the final level
as required by the prison’s administrative grievance process, 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).” (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 excused).
Charlton contends that, although he was provided notice under Rand v.
Rowland,
154 F.3d 952 (9th Cir. 1998) (en banc), in connection with defendants’
initial motion to dismiss for failure to exhaust, the district court erred when it did
not provide him with a renewed notice in connection with defendants’
2 14-35450
supplemental motion to dismiss for failure to exhaust. However, the record shows
that Charlton was already aware of and understood the requirements for responding
to a motion to dismiss for failure to exhaust. See Stratton v. Buck,
697 F.3d 1004,
1009 (9th Cir. 2012) (“The failure to provide the required notice will be harmless
. . . where judicial notice of district court records establishes that the pro se
prisoner plaintiff recently received a proper notice in a previous action or where
the pro se prisoner plaintiff’s response to the motion to dismiss for failure to
exhaust administrative remedies establishes that the plaintiff has a complete
understanding of the [required notice].”).
We reject as without merit Charlton’s contentions that the district court erred
by allowing defendants to file the supplemental motion to dismiss, that the
supplemental motion to dismiss was time-barred, and that the district court was
prejudiced against him.
We do not consider arguments raised for the first time on appeal. See
Padgett v. Wright,
587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
3 14-35450