                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KARL JOSEPH RUSSELL,                            No.    18-55971

                Plaintiff-Appellant,            D.C. No. 3:15-cv-02280-BAS-KSC

 v.
                                                MEMORANDUM*
RICHARD LOPEZ, Correctional Officer,
CDCR-RJDCF,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Cynthia A. Bashant, District Judge, Presiding

                             Submitted June 11, 2019**

Before:      CANBY, GRABER, and MURGUIA, Circuit Judges.

      California state prisoner Karl Joseph Russell appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging the use of

excessive force in violation of the Eighth Amendment. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Guatay Christian Fellowship v. County of


      *
             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).
San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

      The district court properly granted summary judgment for failure to exhaust

administrative remedies because Russell did not exhaust his administrative

remedies, and he failed to raise a genuine dispute of material fact as to whether

administrative remedies were effectively unavailable to him. See Woodford v.

Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “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)); see also

Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016) (describing limited circumstances

under which administrative remedies are effectively unavailable). Because a

judgment on the basis of a failure to exhaust administrative remedies should be

without prejudice, we remand to the district court with instructions to enter

judgment without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.

2005).

      Because we affirm on the administrative exhaustion ground, we do not

consider the merits of the district court’s alternate ground for dismissing the action

as barred by Heck v. Humphrey, 512 U.S. 477 (1994). A dismissal under Heck,

however, should also be without prejudice. See Trimble v. City of Santa Rosa, 49

F.3d 583, 585 (9th Cir. 1995).

      Russell’s motion to “attach supplemental brief with opening brief” (Docket


                                          2                                     18-55971
Entry No. 20) is granted. The Clerk shall file the supplemental brief received at

Docket Entry No. 19.

      Lopez’s motion to strike exhibits to Russell’s reply brief (Docket Entry 30)

is granted. See Fed. R. App. P. 10(a); Kirshner v. Uniden Corp. of Am., 842 F.2d

1074, 1077 (9th Cir. 1988) (“Papers not filed with the district court or admitted

into evidence by that court are not part of the clerk’s record and cannot be part of

the record on appeal.”). The Clerk shall strike the exhibits attached to Docket

Entry No. 29.

      AFFIRMED with instructions to enter judgment without prejudice.




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