                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALFRED KING,                                    No.    15-15209

                Plaintiff-Appellant,            D.C. No. 2:13-cv-02010-MCE-
                                                CKD
 v.

CALIFORNIA DEPARTMENT OF                        MEMORANDUM*
CORRECTIONS AND
REHABILITATION; CALIFORNIA
DEPARTMENT OF CORRECTIONS,

                Defendants,

and

C. FERGUSON; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                              Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.


      *
             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).
      California state prisoner Alfred King appeals pro se from the district court’s

summary judgment for failure to exhaust administrative remedies in his 42 U.S.C.

§ 1983 action alleging deliberate indifference to his health. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182,

1191 (9th Cir. 2015). We affirm.

      The district court properly granted summary judgment because King 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)).

      We treat the judgment as a dismissal 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 . . . .” (citation and internal

quotation marks omitted)).

                                           2                                    15-15209
King’s motion to take judicial notice (Docket Entry No. 21) is denied.

AFFIRMED.




                                  3                                      15-15209
