Opinion
No. 15-56736
02-23-2017
MICHAEL K. FISCHER, Plaintiff-Appellant, v. DAWN T. ALGERS, individual; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 2:13-cv-00725-MWF-DFM MEMORANDUM Appeal from the United States District Court for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Michael K. Fischer, a California state prisoner, 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 excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015), and may affirm on any basis supported by the record, Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.
Summary judgment was proper because Fischer failed to raise a genuine dispute of material fact as to whether he exhausted his administrative remedies before filing his lawsuit or whether administrative remedies were "effectively unavailable." See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation Reform Act ("PLRA") requires "proper exhaustion," which means "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)); Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (PLRA does not require exhaustion when remedies are "effectively unavailable").
AFFIRMED.