Alberto Guillen v. Johnson

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2024
• Docket: 23-35256
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 27 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERTO GUILLEN, No. 23-35256

Plaintiff-Appellant, D.C. No. 4:22-cv-00019-BMM-JTJ v.

JOHNSON, Mr.; CANNON, Mr., MEMORANDUM*

Defendants-Appellees,

and

PETER BLUDWORTH,

Defendant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, Chief District Judge, Presiding

Submitted November 27, 2024**

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

* 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). Plaintiff Alberto Guillen appeals the district court’s judgment in favor of the

defendants in his prisoner civil rights action. We review the grant of summary

judgment and dismissal of claims for failure to state a claim de novo. Nonnette v.

Small, 316 F.3d 872, 875 (9th Cir. 2002). We affirm.

Contrary to plaintiff’s argument, the district court dismissed the due process

and equal protection claims with leave to amend. Plaintiff abandoned the claims

by not repleading them in the amended complaint. First Resort, Inc. v. Herrera,

860 F.3d 1263, 1274 (9th Cir. 2017).

Summary judgment was proper on the unexhausted religious

accommodation claims because plaintiff failed to establish that the grievance

procedure was “effectively unavailable to him.” See Albino v. Baca, 747 F.3d

1162, 1172 (9th Cir. 2014) (setting forth the standard). Neither plaintiff’s initial

inability to obtain the Religious Practice Authorization Request Form nor

Defendant Cannon’s inability to provide information about the grievance process

at the informal grievance stage had any impact on plaintiff’s ability to pursue his

grievances. As soon as Defendant Cannon provided the form, plaintiff submitted it

to the chaplain, who responded. No grievance was denied because plaintiff had not

submitted the form to the chaplain. After Defendant Cannon was unable to answer

plaintiff’s questions at the informal grievance stage, plaintiff filed a timely formal

2 grievance. Because neither incident made the grievance process “effectively

unavailable” to plaintiff, summary judgment was proper for the defendants.

AFFIRMED.