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United States Court of Appeals, Ninth Circuit.

Raul ARELLANO, Plaintiff-Appellant, v. R. OLSON, Appeal Coordinator (CCII); Commissioner of State Department of Corrections, Defendants-Appellees, B. Self, CCII (Appeal Coordinator); et al., Defendants.

No. 19-56264

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Raul Arellano, Pro Se Michelle Des Jardins, Attorney, Lyndsay Rebecca Crenshaw, AGCA - Office of the Attorney General, San Diego, CA, for Defendant - Appellee


California state prisoner Raul Arellano 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 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 Arellano 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)); McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015) (to show that a threat rendered the prison grievance system unavailable, a prisoner must show that he subjectively believed prison officials would retaliate against him and that his belief was objectively reasonable).

The district court did not abuse its discretion by excluding the late filed signature page for Arellano's opposition to defendants’ motion for summary judgment. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (setting forth standard of review and grounds for excluding evidence).


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