                                                                            FILED
                            NOT FOR PUBLICATION                              APR 20 2016

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



                             FOR THE NINTH CIRCUIT


EFREN VALENCIA,                                  No. 14-17168

               Plaintiff - Appellant,            D.C. No. 1:10-cv-01348-LJO-SAB

 v.
                                                 MEMORANDUM*
DEAZEVEDO,

               Defendant - Appellee.


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

                             Submitted April 13, 2016**

Before:        FARRIS, TALLMAN, and BYBEE, Circuit Judges.

      Efren Valencia, a California state prisoner, appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

violations in connection with his conditions of confinement. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment for failure to exhaust administrative remedies. Williams v. Paramo, 775

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

      The district court properly granted summary judgment on Valencia’s claims

regarding his living conditions because Valencia failed to raise a genuine dispute

of material fact as to whether he properly exhausted his administrative remedies, or

whether administrative remedies were effectively unavailable to him. See

Woodford v. Ngo, 548 U.S. 81, 84, 90 (2006) (requiring 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)” (emphasis, citation, and quotation

marks omitted)); Sapp v. Kimbrell, 623 F.3d 813, 822-24, 826-27 (9th Cir. 2010)

(describing limited circumstances under which administrative remedies might be

effectively unavailable or otherwise excused).

      The district court did not abuse its discretion by granting summary judgment

without allowing Valencia to conduct discovery because Valencia failed to show

what material facts would have been discovered that would have precluded

summary judgment. See Klingele v. Eikenberry, 849 F.2d 409, 412-13 (9th Cir.

1988) (setting forth standard of review and recognizing that “[t]he burden is on the

nonmoving party . . . to show what material facts would be discovered that would

preclude summary judgment”).


                                          2                                   14-17168
      Valencia’s motion for appointment of counsel, filed on April 20, 2015, is

denied.

      AFFIRMED.




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