RUSSELL v. LOPEZ CDCR RJDCF (2019)

MEMORANDUM **

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 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, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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, ––– U.S. ––––, 136 S.Ct. 1850, 1858-60, 195 L.Ed.2d 117 (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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 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.