Wayne Jerome ROBERTSON, Plaintiff-Appellant, v. R.D. VANZANDT, Lieutenant; et al., Defendants-Appellees, 362 F. App'x 588

MEMORANDUM Wayne Jerome Robertson, a California state prisoner, appeals pro se from the district court’s judgment in his 42 U.S.C. § 1988 action alleging constitutional violations in connection with his placement in prison housing where he was attacked by other inmates. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to exhaust administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and its

summary judgment, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002), and we affirm. The district court properly determined that, because Robertson’s grievance was rejected as untimely, it did not serve to exhaust his claims against defendants Van-Zandt, Arvizu, Walters, Vaughn, Farris, McDaniel, Lomonaco, and Gabaldon. See Woodford v. Ngo, 548 U.S. 81, 83-84, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under 42 U.S.C. § 1997 is mandatory and cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or appeal”).

Moreover, Robertson’s contention that his pro bono counsel advised him that he had properly exhausted his administrative remedies is unpersuasive where this advice was given after Robertson’s grievance had already been rejected as untimely. The district court properly granted

summary judgment to defendant Decker because the record is devoid of any evidence to suggest that he acted with deliberate indifference to a substantial risk of harm to Robertson’s safety. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir.1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of

summary judgment.”). Robertson’s remaining contentions are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.