                           NOT FOR PUBLICATION                           FILED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

KENNETH EVERETT MOORE,                          No. 19-35002

                Plaintiff-Appellant,            D.C. No. 2:17-cv-02057-JO

 v.
                                                MEMORANDUM*
BRAD CAIN; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Robert E. Jones, District Judge, Presiding

                            Submitted January 8, 2020**

Before:      CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.

      Oregon state prisoner Kenneth Everett Moore appeals pro se from the

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

deliberate indifference to his serious medical needs. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a district court’s summary judgment for



      *
             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).
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 because Moore failed

to exhaust his available administrative remedies as required by the Prison

Litigation Reform Act, and failed to raise a genuine dispute of material fact as to

whether administrative remedies were effectively unavailable to him. See Ross v.

Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (explaining that an inmate must

exhaust “such administrative remedies as are available” before bringing suit, and

describing limited circumstances in which administrative remedies are unavailable,

including when “prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation”);

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)).

      A judgment based on failure to exhaust administrative remedies should be

without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A]

district court must dismiss a case without prejudice when there is no presuit

exhaustion[.]” (emphasis, citation, and internal quotation marks omitted)). We

affirm the district court’s summary judgment, but remand to the district court with


                                          2                                     19-35002
instructions to amend the judgment to reflect that it is without prejudice.

      AFFIRMED; REMANDED with instructions to amend the judgment.




                                          3                                   19-35002
