                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 26 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BOBBY SHANE CHARLTON,                            No.   14-35450

               Plaintiff-Appellant,              D.C. No. 6:09-cv-01246-TC

 v.
                                                 MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTION; et al.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, District Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      Oregon state prisoner Bobby Shane Charlton appeals pro se from the district

court’s judgment dismissing for failure to exhaust administrative remedies his 42

U.S.C. § 1983 action alleging an Eighth Amendment claim arising out of allegedly


          *
             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).
inadequate medical care. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s legal conclusions on exhaustion and for clear

error its factual determinations. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.

2014) (en banc). We may affirm on any basis supported by the record. Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

      Dismissal of Charlton’s Eighth Amendment claim against defendant Lytle

was proper because, even assuming that Charlton appealed the 2009 grievance to

the first level, Charlton did not properly exhaust his appeal through the final level

as required by the prison’s administrative grievance process, and did not show that

administrative remedies were effectively unavailable to him. See Woodford v.

Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . .

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)); Sapp v. Kimbrell, 623 F.3d 813, 823-24, 826-27 (9th Cir. 2010)

(describing limited circumstances under which exhaustion may be excused).

      Charlton contends that, although he was provided notice under Rand v.

Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), in connection with defendants’

initial motion to dismiss for failure to exhaust, the district court erred when it did

not provide him with a renewed notice in connection with defendants’


                                            2                                     14-35450
supplemental motion to dismiss for failure to exhaust. However, the record shows

that Charlton was already aware of and understood the requirements for responding

to a motion to dismiss for failure to exhaust. See Stratton v. Buck, 697 F.3d 1004,

1009 (9th Cir. 2012) (“The failure to provide the required notice will be harmless

. . . where judicial notice of district court records establishes that the pro se

prisoner plaintiff recently received a proper notice in a previous action or where

the pro se prisoner plaintiff’s response to the motion to dismiss for failure to

exhaust administrative remedies establishes that the plaintiff has a complete

understanding of the [required notice].”).

       We reject as without merit Charlton’s contentions that the district court erred

by allowing defendants to file the supplemental motion to dismiss, that the

supplemental motion to dismiss was time-barred, and that the district court was

prejudiced against him.

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

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

       All pending motions are denied.

       AFFIRMED.




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