NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVAN P. GALVAN, 

Plaintiff-Appellant, 

 v. 

A. LUCAS, Correctional Counselor II at 

Kern Valley State Prison; et al., 

Defendants-Appellees.

No. 19-15053 

D.C. No. 1:18-cv-00688-LJO-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

California state prisoner Evan P. Galvan appeals pro se from the district 

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging access-to-courts 

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a 

dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 

* 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).

FILED

OCT 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-15053 

1112 (9th Cir. 2012). We affirm in part, vacate in part, and remand. 

The district court properly dismissed Galvan’s access-to-courts claim

arising from the January 20, 2016 denial of photocopying and law library services 

because Galvan failed to exhaust administrative remedies and failed to allege facts 

sufficient to show that administrative remedies were effectively unavailable. See

Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (an inmate must exhaust 

such administrative remedies as are available before bringing suit, and describing 

limited circumstances in which administrative remedies are unavailable); 

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (proper exhaustion requires “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 v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (where a 

failure to exhaust is clear from the face of the complaint, a district court may 

dismiss for failure to state a claim); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 

2010) (“[A] prisoner must show that he attempted to exhaust his administrative 

remedies but was thwarted by improper screening[.]”).

The district court granted Galvan leave to amend the complaint to add 

allegations regarding the denial of photocopying and law library services in 

March 2016 or later and for interference with a habeas claim, and dismissed the 

action after Galvan declined to amend his complaint. However, the operative 
3 19-15053 

complaint included allegations that in March 2016, Galvan requested photocopying 

related to his state habeas petition, which was denied. The operative complaint 

also included allegations that the denial of his May 2016 grievance violated his 

constitutional rights. We vacate the judgment in part, and remand for the district 

court to consider in the first instance the sufficiency of these allegations.

In sum, we affirm the judgment in part, on Galvan’s access-to-courts claim 

arising from the January 20, 2016 denial of photocopying and law library services, 

and vacate the judgment in part, for the district court to consider the sufficiency of 

the allegations regarding the March 2016 denial of photocopying and the denial of 

his May 2016 grievance. 

AFFIRMED in part, VACATED in part, and REMANDED.