                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 22 2016

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



                            FOR THE NINTH CIRCUIT


SAUL PELAYO,                                     No. 15-16837

              Plaintiff-Appellant,               D.C. No. 5:13-cv-03618-RMW

 v.
                                                 MEMORANDUM*
G. HERNANDEZ,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                          Submitted December 14, 2016 **

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

      California state prisoner Saul Pelayo appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging federal claims. We

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

summary judgment on the basis of failure to exhaust administrative remedies.

      *
             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).
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.

      The district court properly granted summary judgment on Pelayo’s

retaliation claim because Pelayo failed to raise a genuine dispute of material fact as

to whether he properly exhausted administrative remedies or whether

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

Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . .

means 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)); Paramo, 775 F.3d at 1191 (a prisoner who does not

exhaust administrative remedies must show that “there is something particular in

his case that made the existing and generally available administrative remedies

effectively unavailable to him . . . .”); see also McBride v. Lopez, 807 F.3d 982,

987-88 (9th Cir. 2015) (to show that a threat rendered the prison grievance system

unavailable, a prisoner must show that he actually believed prison officials would

retaliate against him, and that his belief was objectively reasonable).

      Pelayo’s motion to compel discovery, filed on July 7, 2016, is denied.

      AFFIRMED.




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