FILED

NOT FOR PUBLICATION

AUG 10 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY CHARLES CLEVELAND, No. 19-55909

Plaintiff-Appellant, D.C. No. 2:15-cv-01399-DSF-GJS v.

LOS ANGELES COUNTY SHERIFF’S MEMORANDUM*

DEPARTMENT; ZASORTIN, Dr., individual; FELAHY, Dr., individual; TEOPHILOV, Chief Medical Phsician as individual; JOHNSON, RN as individual; JOHNSON, Commander, Deputy Sheriff as individual; FRECHETTE, Medical Senior as individual; COOLEY, Deputy, TST Transportation Driver as individual; J. PERA, Deputy Sheriff as individual,

Defendants-Appellees,

and

B. AVALOS, Deputy Sheriff as

individual; LEROY D. BACA, official capacity as Ex-Sheriff of the Los Angeles County Jail; CECI BARAJAS, TST Sergeant as individual; BLEAU, Deputy Sheriff as individual; CASTILLO, Sergeant, Deputy Sheriff as individual; DE

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. LA ROSA, Sergeant, Deputy Sheriff as individual; JOHN DOE, TST Transportation Driver as individual; ECKHADI, Nurse Manager as individual; ENRIQUZ, MD as individual; ELLEO O. GONZAQUE, Medical Supervisor-SSNIS as individual; HEANG, Deputy Sheriff as individual; HEATER, Deputy Sheriff as individual; KAYARZZE, MD as individual; LAFAVE, Lieutenant, Deputy Sheriff as individual; MALDONADO, Lieutenant, Deputy Sheriff as individual; MOGO, County Assistant as individual; MURILLO, Medical Lieutenant as individual; ORNELAS, Captain, Deputy Sheriff as individual; PEFORCELLY, Sergeant, Deputy Sheriff as individual; PHILLIAUS, Medical Sergeant as individual; PONCE, Sergeant, Individual; SADDLER, Jr., MD as individual; SANCHEZ, Deputy Sheriff, Medical Senior as individual; JOHN SCOTT, Interim Sheriff, individual and official capacity; TAYLOR, Third Watch Sergeant in 1750 as individual; WELLS, Lieutenant, Deputy Sheriff as individual; WILLMORE, MD as individual; WYATT, Sergeant, Deputy Sheriff as individual,

Defendants.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

2 Submitted August 6, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Larry Cleveland, a person incarcerated in a California state prison, appeals

pro se from the district court’s judgment dismissing without prejudice his 42

U.S.C. § 1983 action for failure to exhaust administrative remedies as required by

the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust

administrative remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). We

affirm.

1. The notice requirements of Rand v. Rowland, 154 F.3d 952, 955 (9th Cir.

1998) (en banc), were satisfied in this case. Under Rand, a pro se prisoner must be

given fair notice of the requirements of Federal Rule of Civil Procedure 56. See id.

at 962. The day after defendants filed their motion for summary judgment in this

case, the district court issued the required Rand notice. Cleveland argues that this

notice was insufficient because it came from the court and not the defendants;

however, a Rand notice may be provided by the district court or the moving party.

See id. at 960. Therefore, there was no Rand error.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 3 2. The district court properly granted summary judgment on Cleveland’s

claims because Cleveland did not properly exhaust his administrative remedies and

did not show that administrative remedies were effectively unavailable to him. See

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative

remedies . . . means using all steps that the agency holds out, and doing so properly

(so that the agency addresses the issues on the merits).”); Sapp v. Kimbrell, 623

F.3d 813, 823–24 (9th Cir. 2010) (for administrative remedies to be effectively

unavailable, “the inmate must establish (1) that he actually filed a grievance or

grievances that, if pursued through all levels of administrative appeals, would have

sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that

prison officials screened his grievance or grievances for reasons inconsistent with

or unsupported by applicable regulations”).

AFFIRMED.

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