                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 21 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SERGIO CORTEZ BENITEZ,                           No. 13-16926

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00560-RCB

 v.
                                                 MEMORANDUM*
COUNTY OF MARICOPA,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Arizona
              Robert C. Broomfield, Senior District Judge, Presiding

                        Argued and Submitted June 13, 2016
                             San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges and LAMBERTH,** Senior District
Judge.

      Plaintiff Sergio Cortez Benitez appeals from the district court’s order

dismissing his Americans with Disabilities Act claim. We have jurisdiction and

we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
      Benitez brought this action against the County of Maricopa alleging that

prison officers unlawfully denied him the use of his cane and that he was injured as

a result. Before filing suit, he lodged an inmate grievance with the prison and was

granted an ADA accommodation. Benitez subsequently filed an internal appeal in

an attempt to secure follow-up medical care. Although he was not satisfied with

the results of that appeal, he failed to file an external appeal form, and thus, did not

complete the final stage of the prison’s administrative grievance process. The

district court dismissed Benitez’s ADA claim pursuant to the Prison Litigation

Reform Act of 1995, 42 U.S.C. § 1997e(a), based on his failure to exhaust

administrative remedies.

      Benitez’s first contention is that because the prison granted his request for an

ADA accommodation, he had no obligation to appeal from the satisfactory

resolution of his ADA grievance. But the Supreme Court has held that a prisoner

is required to “exhaust administrative remedies even where the relief sought –

monetary damages – cannot be granted by the administrative process.” Woodford

v. Ngo, 548 U.S. 81, 85 (2006); see also Booth v. Churner, 532 U.S. 731, 739

(2001) (“Congress meant to require procedural exhaustion regardless of the fit

between a prisoner’s prayer for relief and the administrative remedies possible.”).

Therefore, Benitez had an obligation to exhaust the external appeal process even


                                           2
though he was partially satisfied by the grant of an ADA accommodation.

Although monetary damages were not available through the prison grievance

process, if the prison had been notified that Benitez was not satisfied with the relief

it had provided, it could have attempted to resolve this dispute using other

available remedies.

       Benitez’s reliance on Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), is

misplaced. There, we explained that an “inmate has no obligation to appeal from a

grant of relief, or a partial grant that satisfies him, in order to exhaust his

administrative remedies.” Id. at 685. But this case is not like Harvey, which

turned on the fact that the prisoner was induced into abandoning his appeal by the

unfulfilled promise of relief.

       Benitez’s second argument is that the County failed to establish that an

external appeal was “available” to him. Failure to exhaust is an affirmative

defense, and therefore, it is the defendant’s burden to “prove that there was an

available administrative remedy, and that the prisoner did not exhaust that

available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc).

If the defendant carries its burden, “the burden shifts to the prisoner to come

forward with evidence showing that there is something in his particular case that




                                             3
made the existing and generally available administrative remedies effectively

unavailable to him.” Id.

         Here, the County satisfied its burden by providing the declaration of

Sergeant Lourdes Hernandez to establish the availability of the external grievance

appeal process and to establish that Benitez did not exhaust it. In addition, it is

undisputed that Benitez received a document that described the external grievance

appeal procedure, and that he failed to follow the instructions that he was provided.

The burden then shifted to Benitez to come forward with evidence to show that the

external appeal process was not effectively available to him. Benitez failed to

satisfy that burden because he did not introduce any such evidence to the district

court.

         Benitez’s final argument is that even if he were required to exhaust

additional administrative remedies, he satisfied that requirement by filing

additional grievances to obtain follow-up medical care. Although some courts

have held that exhaustion is satisfied if prison officials decide a procedurally

flawed grievance on the merits, it appears that the merits of Benitez’s ADA claim

were not at issue in his additional grievances. According to Benitez, “[t]he

remaining relief requested related to Maricopa County’s failure to provide

adequate follow-up medical care, which is not at issue in this appeal of the


                                            4
dismissal of Mr. Benitez’s ADA claim.” As a result, the additional grievances

could not cure Benitez’s failure to exhaust his ADA claim. And in any event,

Benitez did not administratively exhaust the additional grievances.1

      AFFIRMED.




      1
         Attorneys appointed by the court to represent pro se appellants pro bono
may seek reimbursement for certain necessary and reasonable costs incurred in
their representation. See Pro Bono Program Handbook, available at www.ca9.
uscourts.gov/probono.

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