FILED
NOT FOR PUBLICATION AUG 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN E. BARNHOUSE, No. 09-35518
Plaintiff - Appellant, D.C. No. 3:08-cv-05553-RJB
v.
MEMORANDUM *
ERIC YOUNG; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted August 10, 2010 **
Before: HAWKINS, McKEOWN, and IKUTA, Circuit Judges.
John E. Barnhouse, a Washington state prisoner, appeals pro se from the
district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action
for failure to exhaust administrative remedies under the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo the district court’s application of substantive law and its factual
determinations for clear error, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003), and we affirm.
The district court correctly determined that Barnhouse failed to properly
exhaust administrative remedies, even though defendants allegedly confiscated his
pen and paper for the duration of the 20-day filing deadline, because Barnhouse
waited almost two years to file his grievances. See Woodford v. Ngo, 548 U.S. 81,
93-95 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and
cannot be satisfied by filing an untimely or otherwise procedurally defective
administrative grievance or appeal); see also McKinney v. Carey, 311 F.3d 1198,
1199 (9th Cir. 2002) (per curiam) (requiring inmates to exhaust administrative
remedies prior to filing suit in federal court).
The district court’s rejection of Barnhouse’s claim that he filed an earlier
grievance was not clearly erroneous. See Wyatt, 315 F.3d at 1119-20 (“In deciding
a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look
beyond the pleadings and decide disputed issues of fact.”).
Barnhouse’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-35518