NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUWA RALEIGH VINYARD, No. 18-15651

Plaintiff-Appellant, D.C. No. 3:16-cv-07389-WHA

v.

MEMORANDUM*

R. GOMEZ; W. WATERMAN,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

California state prisoner Joshuwa Raleigh Vinyard 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 constitutional violations. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747

* 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). F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.

The district court properly granted summary judgment because Vinyard

failed to exhaust administrative remedies and failed to raise a genuine dispute of

material fact as to whether administrative remedies were effectively unavailable to

him. See Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (explaining that an

inmate must exhaust such administrative remedies as are available before bringing

suit, and describing limited circumstances in which administrative remedies are

unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (stating that 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)).

We treat the judgment as a dismissal without prejudice. See O’Guinn v.

Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007) (“If the district court

concludes that the prisoner has not exhausted nonjudicial remedies, the proper

remedy is dismissal of the claim without prejudice.” (citation and internal

quotation marks omitted)).

AFFIRMED.

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