FILED

NOT FOR PUBLICATION

MAY 1 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT TREVINO, No. 18-15032

Plaintiff-Appellant, D.C. No. 4:15-cv-05373-PJH

v.

MEMORANDUM*

E. DOTSON; D. AMBRIZ; D. VEGA; D.

ANGUIANO; G. COLLIER; E. ELIAS; S.

MILENEWICZ; M. PEREZ; P. LORD; W.

WATERMAN; W. KEKU; C. SEVIER; B.

HOPKINS; E. MEDINA; DOES,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, Chief District Judge, Presiding

Argued and Submitted April 15, 2020 San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Robert Trevino, a California prisoner, appeals the district court’s grant of

summary judgment in favor of defendants on his claims brought under 42 U.S.C.

§ 1983. In March 2012, Trevino was found guilty in a prison disciplinary hearing

of assaulting another inmate with a weapon capable of causing serious bodily

injury. He alleged that he filed an administrative appeal the next month, in April

2012, and received no response. Several months later, in August 2012, Trevino

submitted an inquiry about the status of the appeal that he allegedly submitted in

April. Trevino claimed in the August inquiry that he had filed an earlier inquiry in

June requesting a “status update” of the appeal, but there is no other record

evidence of this separate inquiry. In response to the August inquiry, a prison

official informed Trevino that the appeal database showed no record of receiving

Trevino’s appeal.

Trevino took no further action to pursue his administrative remedies, and

instead filed a habeas petition in California state court more than two years later.

The state court dismissed Trevino’s petition for failure to exhaust his

administrative remedies. He then filed this action. The district court held that

under the Prison Litigation Reform Act (“PLRA”), Trevino failed to exhaust

administrative remedies and granted summary judgment in favor of defendants.

2 This Court reviews the district court’s ruling on whether a prisoner failed to

exhaust administrative remedies de novo. Albino v. Baca, 747 F.3d 1162, 1171

(9th Cir. 2014) (en banc). The PLRA provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any . . . correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a)

(emphasis added).

Trevino has failed to meet his burden of producing “evidence showing that

there is something in his particular case that made the existing and generally

available administrative remedies effectively unavailable to him.” Albino, 747

F.3d at 1172. The evidence raised by Trevino is insufficient to create a “genuine

dispute as to any material fact” in this case. Fed. R. Civ. P. 56(a); see Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). A fact issue is

genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).

The record evidence reflects only a single inquiry that Trevino submitted in

August, to which prison officials responded. And upon receiving this response,

Trevino took no further action to pursue his administrative remedies. No

reasonable jury could find that “prison administrators thwart[ed] [Trevino] from

3 taking advantage of a grievance process through machination, misrepresentation,

or intimidation” on the basis of the evidence he has presented. Ross v. Blake, 136

S. Ct. 1850, 1860 (2016); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th

Cir. 2017).

Finally, Trevino filed a motion for reconsideration under Fed. R. Civ. P.

60(b) arguing, inter alia, that the district court’s analysis was incorrect because it

overlooked evidence that he actually filed a new appeal on August 14, 2012.

Accompanying that motion, he proffered for the first time an alleged “hand

duplicated” copy of the August 14 appeal. The district court properly declined to

consider this new evidence, which could have been provided in response to

defendants’ summary judgment motion.

AFFIRMED.

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