FILED
NOT FOR PUBLICATION AUG 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. HOLMBERG, No. 13-35720
Plaintiff - Appellant, D.C. No. 3:13-cv-05069-BHS
v.
MEMORANDUM*
BERNARD WARNER, Secretary of the
Department of Corrections; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Washington state prisoner Michael A. Holmberg appeals pro se from the
district court’s judgment dismissing for failure to exhaust administrative remedies
his 42 U.S.C. § 1983 action alleging retaliation and access-to-court claims. We
*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Sapp v. Kimbrell,
623 F.3d 813, 821 (9th Cir. 2010), and we affirm.
The district court properly concluded that Holmberg’s failure to exhaust his
administrative remedies was not excused because Holmberg failed to establish that
administrative remedies were effectively unavailable to him. See id. at 823
(describing limited circumstances under which administrative remedies are deemed
unavailable or exhaustion is excused, such as where prison officials screened out
inmate’s appeals for improper reasons); Nunez v. Duncan, 591 F.3d 1217, 1224,
1226 (9th Cir. 2010) (plaintiff bears burden of proving that administrative
remedies are unavailable, such as where prisoner took reasonable and appropriate
steps to exhaust, but was precluded from exhausting by the warden’s mistake).
Holmberg’s pursuit of additional remedies allegedly available under Wash.
Rev. Code § 72.01.060 does not constitute exhaustion of administrative remedies
under the Prison Litigation Reform Act.
AFFIRMED.
2 13-35720