HACKWORTH v. TOMLINSON (2020)

MEMORANDUM **

California state prisoner Robert Hackworth, Jr. appeals pro se from the district court's summary judgment for failure to exhaust administrative remedies in his 42 U.S.C. § 1983 action alleging First Amendment retaliation. 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 Hackworth failed to exhaust his administrative remedies, and failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable. 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)” (citation and internal quotation marks omitted)); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner's grievance must “alert[ ] the prison to the nature of the wrong for which redress is sought” (citation and internal quotation marks omitted)).

We reject as meritless Hackworth's contention that defendants should have raised the exhaustion defense in a motion to dismiss rather than a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).

AFFIRMED.