FILED
NOT FOR PUBLICATION FEB 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWARD THOMAS, No. 09-17212
Plaintiff - Appellant, D.C. No. 2:09-cv-00855-CMK
v.
MEMORANDUM *
J. LAWRENCE WRIGHT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Craig M. Kellison, Magistrate Judge, Presiding **
Submitted February 15, 2011 ***
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Edward Thomas, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to the jurisdiction of the magistrate judge. See
28 U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s application of substantive law, and for clear error its factual
determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we
affirm.
The district court did not clearly err by deciding disputed issues of fact in
favor of defendants and finding that Thomas was not prevented from filing
grievances. See id. 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.”). Accordingly, the district court properly dismissed the
action because Thomas failed to exhaust administrative remedies prior to filing
suit. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that “proper
exhaustion” under § 1997e(a) is mandatory and requires adherence to
administrative procedural rules).
AFFIRMED.
2 09-17212