NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARL JOSEPH RUSSELL, No. 18-55971
Plaintiff-Appellant, D.C. No. 3:15-cv-02280-BAS-KSC
v.
MEMORANDUM*
RICHARD LOPEZ, Correctional Officer,
CDCR-RJDCF,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
California state prisoner Karl Joseph Russell appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging the use of
excessive force in violation of the Eighth Amendment. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Guatay Christian Fellowship v. County of
*
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).
San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment for failure to exhaust
administrative remedies because Russell did not exhaust his administrative
remedies, and he failed to raise a genuine dispute of material fact as to whether
administrative remedies were effectively unavailable to him. See Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “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)); see also
Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016) (describing limited circumstances
under which administrative remedies are effectively unavailable). Because a
judgment on the basis of a failure to exhaust administrative remedies should be
without prejudice, we remand to the district court with instructions to enter
judgment without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.
2005).
Because we affirm on the administrative exhaustion ground, we do not
consider the merits of the district court’s alternate ground for dismissing the action
as barred by Heck v. Humphrey, 512 U.S. 477 (1994). A dismissal under Heck,
however, should also be without prejudice. See Trimble v. City of Santa Rosa, 49
F.3d 583, 585 (9th Cir. 1995).
Russell’s motion to “attach supplemental brief with opening brief” (Docket
2 18-55971
Entry No. 20) is granted. The Clerk shall file the supplemental brief received at
Docket Entry No. 19.
Lopez’s motion to strike exhibits to Russell’s reply brief (Docket Entry 30)
is granted. See Fed. R. App. P. 10(a); Kirshner v. Uniden Corp. of Am., 842 F.2d
1074, 1077 (9th Cir. 1988) (“Papers not filed with the district court or admitted
into evidence by that court are not part of the clerk’s record and cannot be part of
the record on appeal.”). The Clerk shall strike the exhibits attached to Docket
Entry No. 29.
AFFIRMED with instructions to enter judgment without prejudice.
3 18-55971