                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARACELY HERNANDEZ,                              No. 19-35648

                Plaintiff-Appellant,            D.C. No. 3:18-cv-00433-MK

 v.
                                                MEMORANDUM*
D. CLOUTIER, FCS; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                            for the District of Oregon
                Mustafa T. Kasubhai, Magistrate Judge, Presiding**

                             Submitted April 7, 2020***

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      Oregon state prisoner Aracely Hernandez appeals pro se from the district

court’s summary judgment in her 42 U.S.C. § 1983 action alleging sexual assault

by a prison employee. We have jurisdiction under 28 U.S.C. § 1291. We review


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before a magistrate judge. See
28 U.S.C. § 636(c).
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We

affirm in part, reverse in part, and remand.

      The district court properly granted summary judgment on Hernandez’s

retaliation and failure-to-investigate claims because Hernandez failed to exhaust

administrative remedies as required under the Prison Litigation Reform Act

(“PLRA”), and failed to raise a genuine dispute of material fact as to whether

administrative remedies were effectively unavailable to her. See Woodford v. Ngo,

548 U.S. 81, 90 (2006) (the 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)” (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); Griffin v.

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner’s grievance must “alert[ ]

the prison to the nature of the wrong for which redress is sought” (citation and

internal quotation marks omitted)).

      The district court properly granted summary judgment on Hernandez’s state

law claims because Hernandez failed to satisfy the notice requirements of the

Oregon Tort Claims Act (“OTCA”). See Or. Rev. Stat. § 30.275(2)(b) (plaintiff

seeking to file claims against an Oregon public body or its employees must provide

notice of that claim within 180 days after the alleged loss or injury); Denucci v.


                                          2                                    19-35648
Henningsen, 273 P.3d 148, 154 (Or. App. 2012) (failure to give timely notice

required under the OTCA is “fatal” to a plaintiff’s claims).

      The district court did not abuse its discretion in declining to consider

Hernandez’s “Objection to Defendants’ Reply” because the filing was an

unauthorized sur-reply under the local rules. See Bias v. Moynihan, 508 F.3d

1212, 1223 (9th Cir. 2007) (setting forth standard of review and noting that

“[b]road deference is given to a district court’s interpretation of its local rules.”

(citation omitted)); D. Or. R. 7-1(f) (no sur-replies are generally permitted without

prior authorization of the court).

      However, the district court erred in granting summary judgment for failure

to exhaust administrative remedies on Hernandez’s Eighth Amendment failure-to-

protect claim. Construing all the facts and inferences in the light most favorable to

Hernandez, the record shows that Hernandez was not required to continue to

appeal her grievance about the sexual assault incident because the prison granted

or partially granted Hernandez relief. See Harvey v. Jordan, 605 F.3d 681, 685

(9th Cir. 2010) (“An inmate has no obligation to appeal from a grant of relief, or a

partial grant that satisfies [her], in order to exhaust [her] administrative

remedies.”); see also Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018)

(“[C]ourts should construe liberally motion papers and pleadings filed by pro se

inmates” (citation omitted)). Therefore, we reverse and remand for further


                                            3                                     19-35648
proceedings on this claim only.

      We do not consider allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      The parties shall bear their own costs on appeal.

      AFFRIMED in part, REVERSED in part, and REMANDED.




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