                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         OCT 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JAMES CATO, Jr.,                                No. 16-16447

                Plaintiff-Appellant,            D.C. No. 1:14-cv-00564-LJO-SAB

 v.
                                                MEMORANDUM*
J. A. DUMONT,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      California state prisoner James Cato, Jr., appeals pro se from the district

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

U.S.C. § 1983 action arising out of his placement in administrative segregation.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district



      *
             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).
court’s legal rulings on exhaustion and for clear error the district court’s findings

on disputed issues of material fact relevant to exhaustion. Albino v. Baca, 747

F.3d 1162, 1171 (9th Cir. 2014) (en banc). We affirm.

      The district court did not clearly err by finding that Cato’s grievance was

untimely and that Cato did receive a response to his grievance but failed to exhaust

his administrative remedies to the highest level. See id. at 1170-71 (“[D]isputed

factual questions relevant to exhaustion should be decided by the judge, in the

same manner a judge rather than a jury decides disputed factual questions relevant

to jurisdiction and venue.”). Thus, the district court properly granted summary

judgment because Cato failed to raise a genuine dispute of material fact as to

whether he properly exhausted administrative remedies or whether administrative

remedies were effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850,

1858-60 (2016) (setting forth circumstances when administrative remedies are

unavailable); 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,

internal quotation marks, and emphasis omitted)).

      AFFIRMED.




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