NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL K. FISCHER, No. 15-56736
Plaintiff-Appellant, D.C. No. 2:13-cv-00725-MWF-DFM
v.
MEMORANDUM*
DAWN T. ALGERS, individual; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Michael K. Fischer, a California state prisoner, appeals pro se from the
district court’s summary judgment for failure to exhaust administrative remedies in
his 42 U.S.C. § 1983 action alleging excessive force. We have jurisdiction under
28 U.S.C. § 1291. We review de novo, Williams v. Paramo, 775 F.3d 1182, 1191
*
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).
(9th Cir. 2015), and may affirm on any basis supported by the record, Enlow v.
Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.
Summary judgment was proper because Fischer failed to raise a genuine
dispute of material fact as to whether he exhausted his administrative remedies
before filing his lawsuit or whether administrative remedies were “effectively
unavailable.” See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation
Reform Act (“PLRA”) requires “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 internal quotation marks omitted));
Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (PLRA does not require
exhaustion when remedies are “effectively unavailable”).
AFFIRMED.
2 15-56736