                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 21 2016

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



                            FOR THE NINTH CIRCUIT


ANTHONY PENTON,                                  No. 15-15461

               Plaintiff-Appellant,              D.C. No. 2:11-cv-03319-TLN-
                                                 KJN
 v.

SIMMS; et al.,                                   MEMORANDUM*

               Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                          Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

      California state prisoner Anthony Penton appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging due process violations in

connection with his placement in administrative segregation and his disciplinary

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

          *
             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).
summary judgment and a dismissal under Fed. R. Civ. P. 12(b)(6). Doe v. Abbott

Labs, 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

      The district court properly dismissed Penton’s due process claims regarding

his placement in administrative segregation and the timing of his disciplinary

hearing because Penton failed to allege facts sufficient to show that he was denied

any procedural protections that were due. See Wolff v. McDonnell, 418 U.S. 539,

563-70 (1974) (setting forth due process requirements for prison disciplinary

proceedings); Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986)

(setting forth due process requirements for placement in administrative

segregation), abrogated in part on other grounds by Sandin v. Conner, 515 U.S.

472 (1995).

      The district court properly granted summary judgment on Penton’s claim

alleging a denial of his right to call witnesses because Penton 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 internal quotation marks omitted)); Sapp v. Kimbrell, 623


                                           2                                        15-15461
F.3d 813, 822-24, 826-27 (9th Cir. 2010) (describing limited circumstances under

which administrative remedies might be effectively unavailable or otherwise

excused).

      AFFIRMED.




                                        3                                     15-15461
