                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 28 2015

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



                            FOR THE NINTH CIRCUIT


MITCHELL FIELDS,                                 No. 13-15963

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00659-KJD-
                                                 GWF
 v.

CHERYL BURSON; BRIAN                             MEMORANDUM*
WILLIAMS; CAMERON SEISAN,
Correctional Officer - erroneously sued as
C/O Seisan,

              Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Nevada
                 Kent J. Dawson, Senior District Judge, Presiding

                       Argued and Submitted April 13, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and BENITEZ,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Mitchell Fields is a Nevada state prisoner who has claimed numerous

violations of federal law and his constitutional rights by prison officials. We

earlier affirmed the summary judgment against him on all grounds except his

claims for excessive force and retaliation. Fields v. Bannister, 453 F. App’x 720,

721 (9th Cir. 2011). We remanded the excessive force and retaliation claims

because the defendants had not shown that Fields failed to exhaust his

administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). Id.

      On remand, the defendants demonstrated that Fields received notice of the

prison’s rejection of his excessive force grievance, but he failed to timely appeal

that decision. We therefore affirm the district court’s determination that Fields

failed to exhaust his excessive force grievance.

      In Fields’s earlier appeal, we remanded the retaliation claim because the

record showed that prison officials improperly screened Fields’s two grievances

claiming retaliatory placement in administrative segregation (“ad seg”) as

duplicates of his excessive force grievances. Id. On remand, the district court

agreed with defendants that our earlier decision had overlooked a third retaliation

grievance which was properly screened. The record before us now, however, does

not show that the third grievance was properly screened. If it was not, Fields’s


                                          2
failure to exhaust his retaliation claim is excused. See Sapp v. Kimbrell, 623 F.3d

813, 823–24 (9th Cir. 2010) (excusing failure to exhaust where improper screening

of grievances renders administrative remedies “effectively unavailable”).

Assuming the failure to exhaust was excused, we look to the merits and conclude

the retaliation claim fails.

       Fields claims he was placed in ad seg for filing an excessive force grievance

against a guard. The defendants contend that Fields was placed in ad seg for his

own protection. In response, Fields contends that the motivation must have been

retaliatory because the guard in question had been assigned to ad seg during

Fields’s stay there. The record reflects, however, that when Fields was placed in

ad seg in November 2007, the prison did not know the identity of the guard who

allegedly used excessive force on Fields, and the motivation for his placement

could not have been retaliatory.

       Fields also points to the fact that he was kept in ad seg after the investigation

of the excessive force grievance was complete, and after he had informed prison

officials of the guard’s identity and his assignment to ad seg. Absent a showing of

retaliatory motives on the part of prison officials with respect to the initial

placement, maintaining the placement for the additional period does not give rise

to a viable claim of retaliation. There is no clearly established law that a prisoner


                                           3
should be released from ad seg immediately upon the prison’s learning of the

presence of a hostile guard. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Even if Fields could establish a violation of his rights, the defendants would be

entitled to qualified immunity. See id.

      Fields’s unopposed motion to take judicial notice is granted.

      AFFIRMED.




                                          4
