NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DYLAN ISAAC BURSELL, No. 20-35405
Plaintiff-Appellant, D.C. No. 2:18-cv-01978-HZ
v.
MEMORANDUM*
COLLETTE PETERS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Submitted June 10, 2021**
Portland, Oregon
Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.
Dylan Bursell appeals the summary judgment in favor of defendants for
failure to exhaust administrative remedies under the Prison Litigation Reform Act
(“PLRA”) on his Section 1983 claim over alleged secondary exposure to pepper
spray while in custody at the Eastern Oregon Correctional Institution (“EOCI”).
*
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 have jurisdiction pursuant to 28 U.S.C. § 1291, and, reviewing de novo, we
affirm. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
Bursell asserts that he was not required to exhaust the prison’s
administrative grievance procedures because administrative remedies were not
“available” to him within the meaning of the PLRA. 42 U.S.C. § 1997e(a).
Bursell argues that because two other prisoners were ultimately denied
administrative relief over the same alleged pepper spray exposure, the grievance
process “operate[d] as a simple dead end” which he was not required to exhaust.
Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).
The PLRA requires a prisoner to comply with the prison’s own procedures
for pursuing administrative remedies in order to properly exhaust. Jones v. Bock,
549 U.S. 199, 218 (2007). Under EOCI’s grievance procedures, Bursell was
required to grieve the March 13, 2018, pepper spray exposure incident no later than
April 12, 2018. The other two prisoners’ grievances were not finally denied until
June 2018. That two other prisoners’ grievances were denied after Bursell’s
deadline to file his own grievance is not sufficient to suggest “that there is
something in his particular case that made the existing and generally available
administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172;
see also Ross, 136 S. Ct. at 1859 (requiring “facts on the ground” to demonstrate
that there is “no [] potential” of relief through the grievance process). Bursell was
2
therefore required to exhaust EOCI’s grievance procedures before filing his federal
suit.
AFFIRMED.
3