Timothy Wilkins v. Correctional Officers

FILED NOT FOR PUBLICATION MAR 7 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY DEANORE WILKINS, No. 22-55745 Plaintiff-Appellant, D.C. No. 2:21-cv-03383-VAP-E v. CORRECTIONAL OFFICERS; JONES, MEMORANDUM* Correctional Sergeant, individual; LUND, Correctional Officer, individual; STEVE R. BRENNEMAN, Correctional Officer, individual; ANGELO DOLIDA, Correctional Officer, individual; A. MORENO, Correctional Officer, in his individual capacity; D. MANER, Correctional Officer, in his individual capacity; JACOBS, Correctional Officer, in his individual capacity; LESLIE KINGSLEY, Correctional Officer, in her individual capacity, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Submitted March 7, 2024** San Francisco, California Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges Timothy Wilkins appeals pro se from the district court’s grant of summary judgment in his 42 U.S.C. § 1983 civil rights action alleging violations of the First and Eighth Amendments. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,1 and we affirm. The district court did not err in granting summary judgment on Wilkins’s civil rights claims because Wilkins failed to exhaust his administrative remedies and failed to raise a triable issue of material fact as to whether administrative remedies were effectively unavailable. See Draper v. Rosario, 836 F.3d 1072, 1079–80 (9th Cir. 2016). Even considering Wilkins’s rejected communications to the district court and later cases alleging retaliation,2 the record lacks evidence that ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). 2 This Court may take judicial notice of legal proceedings. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Wilkins’s request for judicial notice of Wilkins v. Holcolm, No. 22-cv-3608-SVW (C.D. Cal. Oct. 24, 2022) and Wilkins v. Samuels, No. 22-cv-2434-SVW (C.D. Cal. Oct. 24, 2022), and his rejected filings in the district court, is granted. Appellees’ motion for judicial notice of the dockets and dismissal orders in Holcolm and Samuels is also granted. 2 22-55745 Wilkins actually feared retaliation for using the administrative grievance process, let alone that any fear of retaliation was objectively reasonable.3 AFFIRMED. 3 See McBride v. Lopez, 807 F.3d 982, 987–88 (9th Cir. 2015). 3 22-55745