Vaughn v. Hood, 112216 FED9, 15-17406

Docket Nº:15-17406
Party Name:RAY LEE VAUGHN, Plaintiff-Appellant, v. HOOD, Correctional Officer, High Desert State Prison; ROLLANDS, Correctional Officer, High Desert State Prison, Defendants-Appellees.
Judge Panel:Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Case Date:November 22, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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RAY LEE VAUGHN, Plaintiff-Appellant,

v.

HOOD, Correctional Officer, High Desert State Prison; ROLLANDS, Correctional Officer, High Desert State Prison, Defendants-Appellees.

No. 15-17406

United States Court of Appeals, Ninth Circuit

November 22, 2016

NOT FOR PUBLICATION

Submitted November 16, 2016 [**]

Appeal from the United States District Court for the Eastern District of California No. 2:14-cv-02235-MCE-KJN, Morrison C. England, Jr., District Judge, Presiding

Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.

MEMORANDUM [*]

California state prisoner Ray Lee Vaughn appeals pro se from the district court's judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action arising from defendants' alleged failure to protect him from an assault. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (legal rulings on exhaustion); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Fed. R. Civ. P. 12(b)(6) motion to dismiss). We affirm.

The district court properly dismissed Vaughn's action for failure to state a claim because it is clear from the face of the complaint and its attachments that Vaughn failed to exhaust his available administrative remedies by failing to appeal separately the third-level cancellation decision. 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)); Albino, 747 F.3d at 1169 ("[W]here a failure to exhaust is clear from the face of the complaint, a defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a claim."); see also Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in determining whether the complaint states a claim for relief, "we may consider facts contained in documents attached to the complaint").

The district court did not abuse its discretion by declining to...

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