Jacob Smith v. Roey Pfister;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB SMITH,
Plaintiff-Appellant,
v.
ROEY PFISTER; et al.,
Defendants-Appellees.
No. 21-35350
D.C. No. 6:20-cv-00005-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Montana state prisoner Jacob Smith 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 retaliation. 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.
* 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
NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-35350
The district court properly granted summary judgment for defendant Wigert
because Smith failed to exhaust 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)
(explaining that 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)); see also Ross v. Blake,
136 S. Ct. 1850, 1858-60 (2016) (setting forth circumstances when administrative
remedies are effectively unavailable).
We reject as meritless Smith’s contentions that the district court erred by
declining to consider whether Smith’s retaliation claim was incorporated into the
formal grievance, and by failing to provide an additional opportunity to file a
statement of undisputed facts.
AFFIRMED.

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