Evan P. Galvan v. A. LUCAS, Correctional Counselor II at Kern Valley State Prison;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVAN P. GALVAN,
Plaintiff-Appellant,
v.
A. LUCAS, Correctional Counselor II at
Kern Valley State Prison; et al.,
Defendants-Appellees.
No. 19-15053
D.C. No. 1:18-cv-00688-LJO-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
California state prisoner Evan P. Galvan appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging access-to-courts
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108,
* 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).
FILED
OCT 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1112 (9th Cir. 2012). We affirm in part, vacate in part, and remand.
The district court properly dismissed Galvan’s access-to-courts claim
arising from the January 20, 2016 denial of photocopying and law library services
because Galvan failed to exhaust administrative remedies and failed to allege facts
sufficient to show that administrative remedies were effectively unavailable. See
Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (an inmate must exhaust
such administrative remedies as are available before bringing suit, and describing
limited circumstances in which administrative remedies are unavailable);
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “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)); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where a
failure to exhaust is clear from the face of the complaint, a district court may
dismiss for failure to state a claim); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.
2010) (“[A] prisoner must show that he attempted to exhaust his administrative
remedies but was thwarted by improper screening[.]”).
The district court granted Galvan leave to amend the complaint to add
allegations regarding the denial of photocopying and law library services in
March 2016 or later and for interference with a habeas claim, and dismissed the
action after Galvan declined to amend his complaint. However, the operative

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complaint included allegations that in March 2016, Galvan requested photocopying
related to his state habeas petition, which was denied. The operative complaint
also included allegations that the denial of his May 2016 grievance violated his
constitutional rights. We vacate the judgment in part, and remand for the district
court to consider in the first instance the sufficiency of these allegations.
In sum, we affirm the judgment in part, on Galvan’s access-to-courts claim
arising from the January 20, 2016 denial of photocopying and law library services,
and vacate the judgment in part, for the district court to consider the sufficiency of
the allegations regarding the March 2016 denial of photocopying and the denial of
his May 2016 grievance.
AFFIRMED in part, VACATED in part, and REMANDED.

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