NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRIN M. GASPER, No. 16-55760
Plaintiff-Appellant, D.C. No. 3:15-cv-01118-BEN-
JMA
v.
S. SANCHEZ, Security Captain at RJDSP; MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Darrin M. Gasper, a California state prisoner, appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
U.S.C. § 1983 and Americans with Disabilities Act action alleging retaliation and
disability discrimination. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We
affirm.
The district court properly granted summary judgment because Gasper 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, 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).” (emphasis, 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).
Gasper’s challenge to the district court’s failure to resolve his motion for a
preliminary injunction is moot. See Mt. Graham Red Squirrel v. Madigan, 954
F.2d 1441, 1450 (9th Cir. 1992) (when underlying claims have been decided, the
reversal of a denial of a preliminary injunction would have no practical
consequences, and the issue is therefore moot).
We reject as meritless Gasper’s contention that the district court erred in
failing to return conformed copies of filings.
Defendants’ request for judicial notice (Docket Entry No. 14) is granted.
AFFIRMED.
2 16-55760