NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINIFRED JIAU, No. 16-15147
Plaintiff-Appellant, D.C. No. 3:13-cv-00248-WHA
v.
MEMORANDUM*
KAIRE POOLE; RANDY L. TEWS,
Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Winifred Jiau, a former federal prisoner, appeals pro se from the district
court’s summary judgment for failure to exhaust administrative remedies in her
action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015).
We affirm.
The district court properly granted summary judgment because Jiau failed to
raise a genuine dispute of material fact as to whether she properly exhausted her
administrative remedies, or whether there was “something in [her] particular case
that made the existing and generally available administrative remedies effectively
unavailable to [her].” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); see
also Woodford v. Ngo, 548 U.S. 81, 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 internal
quotation marks omitted)). Because we affirm the district court’s summary
judgment based on failure to exhaust administrative remedies, we treat the
judgment as a dismissal without prejudice. See Lira v. Herrera, 427 F.3d 1164,
1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice
when there is no presuit exhaustion[.]” (emphasis, citation, and internal quotation
marks omitted)).
In light of our disposition, we do not reach the merits of Jiau’s claims.
We do not consider Jiau’s contentions concerning appointment of counsel,
2 16-15147
leave to amend, leave to conduct discovery, or deliberate indifference to medical
needs because they were not properly raised before the district court. See L.A.
News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998).
We reject as unsupported by the record Jiau’s contentions that defendants
committed perjury.
AFFIRMED.
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