FILED
NOT FOR PUBLICATION NOV 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALBERT HAYES, No. 09-56495
Plaintiff - Appellant, D.C. No. 2:08-cv-02755-CJC-FFM
v.
MEMORANDUM *
W. ROSSER, Individual, employed as a
correctional officer; et al.,
Defendants - Appellees,
and
SULLIVAN, individual and official
capacity (first name unknown),
Defendant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted September 22, 2010 **
Before: WALLACE, HAWKINS and THOMAS, Circuit Judges.
*
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).
The district court did not clearly err by concluding that Albert Hayes
(“Hayes”) still had administrative remedies available to him once he received a
copy of the first-level response to his grievance. See Cal. Code Regs. tit. 15
§ 3085(b). Accordingly, dismissal of his action for failure to exhaust
administrative remedies was proper. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(“proper exhaustion” under 42 U.S.C. § 1997e(a) is mandatory and requires
adherence to administrative procedural rules); see also Wyatt v. Terhune, 315 F.3d
1108, 1120 (9th Cir. 2003) (the proper remedy for non-exhaustion is dismissal
without prejudice).
The district court did not abuse its discretion by denying Hayes’s post-
judgment motion to correct the docket. See Sch. Dist. No. 1J, Multnomah County,
Or. v. ACandS, Inc., 315 F.3d 1255, 1262-63 (setting forth standard of review and
requirements for reconsideration under Federal Rule of Civil Procedure 60(b)).
AFFIRMED.
2 09-56495