Jihad Mohammed v. Jimmy Cruzen

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JIHAD ABDUL MOHAMMED, AKA Jihad No. 17-16035
Mohammed-Bey,
D.C. No. 5:15-cv-01891-LHK
Plaintiff-Appellant,

v. MEMORANDUM*

JIMMY CRUZEN, Correctional Officer; et
al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Submitted December 18, 2017**

Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

California state prisoner Jihad Abdul Mohammed, AKA Jihad Mohammed-

Bey, appeals pro se from the district court’s summary judgment for failure to

exhaust administrative remedies in his 42 U.S.C. § 1983 action related to

*
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).
congregational prayer. We have jurisdiction under 28 U.S.C. § 1291. 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 Mohammed

failed to raise a genuine dispute of material fact as to whether he properly

exhausted his administrative remedies, or whether there was “something in his

particular case that made the existing and generally available administrative

remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172

(9th Cir. 2014) (en banc); 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)). Mohammed contends

that he exhausted under a “continuing violation” theory, but even if this court were

to adopt such a theory, it would not apply in this case.

AFFIRMED.

2 17-16035