                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 20 2016

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



                            FOR THE NINTH CIRCUIT


DARRYL BURGHARDT,                                No. 15-15498

              Plaintiff-Appellant,               D.C. No. 5:12-cv-05190-BLF

 v.
                                                 MEMORANDUM*
J. FRANZ; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Darryl Burghardt appeals pro se from the district court’s summary judgment

in his action alleging retaliation and deliberate indifference to his safety. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

summary judgment for failure to exhaust administrative remedies. Williams v.

      *
             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).
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We review for an abuse of

discretion the district court’s dismissal under Federal Rule of Civil Procedure

4(m). In re Sheehan, 253 F.3d 507, 511 (9th Cir. 2001). We affirm in part, vacate

in part, and remand.

      The district court properly granted summary judgment for defendants Franz,

Kelley, and Bragger because Burghardt failed to raise a genuine dispute of material

fact as to whether he exhausted his administrative remedies before filing his

lawsuit or whether administrative remedies were effectively unavailable. See Sapp

v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (PLRA does not require exhaustion

when remedies are “effectively unavailable”); McKinney v. Carey, 311 F.3d 1198,

1199-201 (9th Cir. 2002) (prison grievance process must be completed before a

civil rights action is filed; exhaustion during the pendency of the litigation is

insufficient because exhaustion is a precondition to suit). We treat the judgment as

a dismissal without prejudice as to these claims. 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 pre[-]suit exhaustion.” (citation and internal quotation

marks omitted)).

      However, the district court dismissed defendant Graham under Fed. R. Civ.

P. 4(m) because the U.S. Marshal could not locate him to effectuate service. The


                                            2                                       15-15498
district court ordered Burghardt to provide the court with Graham’s location so that

the U.S. Marshal could serve Graham. Burghardt filed a notice containing a new

address for Graham, but the district court apparently overlooked this notice.

Accordingly, we vacate the judgment in part and remand for further proceedings as

to Graham only.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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