                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DWAYNE GILES,                                   No. 16-15683

                Plaintiff-Appellant,            D.C. No. 2:11-cv-01825-WBS-EFB

 v.
                                                MEMORANDUM*
TOM FELKER, Warden; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   William B. Shubb, District Judge, Presiding

                            Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      California state prisoner Dwayne Giles 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 deliberate indifference to medical needs. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,


      *
             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).
775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.

      The district court properly granted summary judgment because Giles did not

exhaust his claims prior to filing this action and failed to raise a genuine dispute of

material fact as to whether there was “something in his particular case that made

the existing and generally available administrative remedies effectively unavailable

to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc); see also

Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006) (to properly exhaust, “a prisoner

must complete the administrative review process in accordance with the applicable

procedural rules”); Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005)

(argument that delay in responding to a grievance caused administrative remedies

to be effectively unavailable must be supported by facts showing that prisoner was

prejudiced by the delay); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir.

2002) (exhaustion must be completed before a § 1983 action is filed; exhaustion

during the pendency of the litigation is insufficient because exhaustion is a

precondition to suit).

      Contrary to Giles’s contention, exhaustion of administrative remedies before

filing an amended complaint alleging the same claims does not constitute proper

exhaustion. See Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014)

                                           2                                    16-15683
(explaining exception to exhaustion during pendency of action where new claims

are alleged in amended complaint).

      We reject as without merit Giles’s contentions that the district court was

required to address exhaustion at screening and that defendants waived exhaustion

by not raising it in a motion to dismiss.

      Giles’s motion (Docket Entry No. 36) is denied.

      AFFIRMED.




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