NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THURMAN GAINES, No. 22-15263

Plaintiff-Appellant, D.C. No. 1:15-cv-00587-JLT-SAB v.

E. HOROWITZ, Dr.; MCSP, MEMORANDUM*

Defendant-Appellee,

and

CALIFORNIA DEPARTMENT OF

CORRECTIONS; et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted March 22, 2023** San Francisco, California

Before: WALLACE, SILVERMAN, N.R. SMITH, Circuit Judges.

* 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). Thurman Gaines appeals from the district court’s dismissal of his claim for

failure to exhaust administrative remedies. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review legal conclusions concerning exhaustion de novo and

factual findings for clear error. See Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.

2014) (en banc). We review a district court’s imposition of discovery sanctions and

exclusion of evidence for abuse of discretion. See Payne v. Exxon Corp., 121 F.3d

503, 507 (9th Cir. 1997); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1027

(9th Cir. 2003). We affirm.

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires that a

prisoner exhaust “administrative remedies as are available” before filing an action

to challenge prison conditions. This is an affirmative defense that must be proved

by a defendant. See Jones v. Bock, 549 U.S. 199, 216 (2007). In particular, the

defendant bears the burden to prove that the prison had “an available administrative

remedy” and that “the prisoner did not exhaust that available remedy.” Albino, 747

F.3d at 1172. After the defendant makes such a showing, the plaintiff bears the

burden of production to establish that “there is something in his particular case that

made the existing and generally available administrative remedies effectively

unavailable to him.” Id.

The district court did not err in concluding that Gaines did not exhaust his

administrative remedies. The district court did not clearly err in finding that the

2 prison had a generally available grievance process, as Gaines failed to rebut the

Defendants’ evidence and establish that the prison had a history of misplacing or

losing grievances in a manner that made the process generally unavailable. Nor did

the district court clearly err in concluding that Gaines did not file, and the prison did

not lose, his grievance, and therefore the grievance process was not effectively

unavailable to him. See Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017).

The district court did not abuse its discretion in excluding two inmate

declarations as an evidentiary sanction, as Gaines failed to disclose timely this

evidence and the sanction did not amount to a dismissal. See R&R Sails, Inc. v. Ins.

Co. of Pa., 673 F.3d 1240, 1247 (9th Cir. 2012).

The district court did not abuse its discretion in excluding the California

Office of the Inspector General report, as Gaines has not established that his failure

to provide this report in discovery was substantially justified or harmless. See

Merchant v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021).

The Appellees’ motion for leave to transmit exhibits is granted.

AFFIRMED.

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