NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THEODORE J. NEWTON, No. 19-56478

Plaintiff-Appellant, D.C. No. 3:19-cv-00511-LAB-

KSC

v.

S. EATMON, Correctional Officer, MEMORANDUM*

Defendant-Appellee,

and

T. VILLANUEVA, SSA, Appeals

Coordinator,

Defendant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

California state prisoner Theodore J. Newton appeals pro se from the district

* 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). court’s summary judgment for failure to exhaust his 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 F.3d 1162,

1168 (9th Cir. 2014) (en banc). We affirm.

The district court properly granted summary judgment because Newton

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

of material fact as to whether 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).” (citation

and internal quotation marks omitted)); McKinney v. Carey, 311 F.3d 1198, 1199-

1200 (9th Cir. 2002) (requiring inmates to exhaust administrative remedies prior to

filing suit in federal court).

We treat the judgment as a dismissal without prejudice to Newton refiling

the action. See McKinney, 311 F.3d at 1200-01.

AFFIRMED.

2 19-56478