Gerald Vaughn Gwen v. Core Civic;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD VAUGHN GWEN,
Plaintiff-Appellant,
v.
CORE CIVIC; et al.,
Defendants-Appellees.
No. 23-15776
D.C. No. 2:21-cv-02150-JAT-JFM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Arizona state prisoner Gerald Vaughn Gwen 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 various constitutional claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217,
* 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 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1222 (9th Cir. 2010). We affirm.
The district court properly granted summary judgment because Gwen failed
to exhaust administrative remedies and failed to raise a genuine dispute of material
fact as to whether administrative remedies were unavailable to him. See Ross v.
Blake, 578 U.S. 632, 642-44 (2016) (explaining that an inmate must exhaust such
administrative remedies as are available before bringing an action, and describing
limited circumstances in which administrative remedies are unavailable);
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (exhaustion requires compliance with
prison deadlines and other procedural rules). Contrary to Gwen’s contentions,
defendants pled exhaustion as an affirmative defense, defendants’ motion for
summary judgment was not procedurally defective, and Gwen was informed of the
requirements for opposing summary judgment.
The district court did not abuse its discretion in denying Gwen’s request for
additional time to oppose summary judgment under Federal Rule of Civil
Procedure 56(d). See Midbrook Flowerbulbs Holland B.V. v. Holland Am. Bulb
Farms, Inc., 874 F.3d 604, 612, 619-20 (9th Cir. 2017) (setting forth standard of
review and explaining that to prevail on a Rule 56(d) request, a party must state the
specific facts it seeks in further discovery, and show that such facts exist and are
“essential to oppose summary judgment” (citation and internal quotation marks
omitted)).

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The district court did not abuse its discretion in denying Gwen’s various
discovery motions because Gwen’s motions were procedurally deficient or
untimely. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003)
(“A district court is vested with broad discretion to permit or deny discovery, and a
decision to deny discovery will not be disturbed except upon the clearest showing
that the denial of discovery results in actual and substantial prejudice to the
complaining litigant.” (citation and internal quotation marks omitted)); see also
Fed. R. Civ. P. 26(a)(1)(B)(iv) (excepting initial disclosure in actions brought pro
se by a person in custody).
AFFIRMED.

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