FILED
NOT FOR PUBLICATION APR 20 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EFREN VALENCIA, No. 14-17168
Plaintiff - Appellant, D.C. No. 1:10-cv-01348-LJO-SAB
v.
MEMORANDUM*
DEAZEVEDO,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Efren Valencia, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with his conditions of confinement. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary
*
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).
judgment for failure to exhaust administrative remedies. Williams v. Paramo, 775
F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment on Valencia’s claims
regarding his living conditions because Valencia failed to raise a genuine dispute
of material fact as to whether he properly exhausted his administrative remedies, or
whether administrative remedies were effectively unavailable to him. See
Woodford v. Ngo, 548 U.S. 81, 84, 90 (2006) (requiring proper exhaustion, which
means “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 quotation
marks omitted)); Sapp v. Kimbrell, 623 F.3d 813, 822-24, 826-27 (9th Cir. 2010)
(describing limited circumstances under which administrative remedies might be
effectively unavailable or otherwise excused).
The district court did not abuse its discretion by granting summary judgment
without allowing Valencia to conduct discovery because Valencia failed to show
what material facts would have been discovered that would have precluded
summary judgment. See Klingele v. Eikenberry, 849 F.2d 409, 412-13 (9th Cir.
1988) (setting forth standard of review and recognizing that “[t]he burden is on the
nonmoving party . . . to show what material facts would be discovered that would
preclude summary judgment”).
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Valencia’s motion for appointment of counsel, filed on April 20, 2015, is
denied.
AFFIRMED.
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