                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 11 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



WAYNE JEROME ROBERTSON,                          No. 08-16022

               Plaintiff - Appellant,            D.C. No. 1:03-cv-06070-LJO-GSA

   v.
                                                 MEMORANDUM *
R. D. VANZANDT, Lieutenant; et al.,

               Defendants - Appellees.



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

                            Submitted December 15, 2009 **


Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

        Wayne Jerome Robertson, a California state prisoner, appeals pro se from

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



          *
             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).

PDM/Research
violations in connection with his placement in prison housing where he was

attacked by other inmates. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo the district court’s dismissal for failure to exhaust administrative

remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and its summary

judgment, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002), and we affirm.

       The district court properly determined that, because Robertson’s grievance

was rejected as untimely, it did not serve to exhaust his claims against defendants

VanZandt, Arvizu, Walters, Vaughn, Farris, McDaniel, Lomonaco, and Gabaldon.

See Woodford v. Ngo, 548 U.S. 81, 83-84, 95 (2006) (holding that “proper

exhaustion” under 42 U.S.C. § 1997 is mandatory and cannot be satisfied “by

filing an untimely or otherwise procedurally defective administrative grievance or

appeal”). Moreover, Robertson’s contention that his pro bono counsel advised him

that he had properly exhausted his administrative remedies is unpersuasive where

this advice was given after Robertson’s grievance had already been rejected as

untimely.

       The district court properly granted summary judgment to defendant Decker

because the record is devoid of any evidence to suggest that he acted with

deliberate indifference to a substantial risk of harm to Robertson’s safety. See

Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere


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allegation and speculation do not create a factual dispute for purposes of summary

judgment.”).

       Robertson’s remaining contentions are unpersuasive.

       AFFIRMED.




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