FILED
NOT FOR PUBLICATION MAR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL DIXON, No. 10-35433
Plaintiff - Appellant, D.C. No. 1:08-cv-00437-BLW
v.
MEMORANDUM*
CORRECTIONAL CORPORATION OF
AMERICA, INC.; ACOSTA; DOSER;
WILKERSON; PHILLIP VALDEZ;
IDAHO CORRECTIONAL CENTER,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted March 9, 2011**
Portland, Oregon
Before: D.W. NELSON, THOMAS, and GRABER, 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).
Daniel Dixon appeals the district court’s order granting the Defendants’
motion to dismiss Dixon’s 42 U.S.C. § 1983 suit because Dixon failed to exhaust
his administrative remedies pursuant to the Prison Litigation Reform Act of 1995.
See 42 U.S.C. § 1997e(a). Dixon also appeals the district court’s dismissal of his
subpoena requests as moot. We affirm.
“[W]e have held that the failure to exhaust nonjudicial remedies that are not
jurisdictional should be treated as a matter in abatement, which is subject to an
unenumerated [Federal Rule of Civil Procedure] 12(b) motion rather than a motion
for summary judgment.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
“In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the
court may look beyond the pleadings and decide disputed issues of fact.” Id. at
1119-20. We review the district court’s factual findings for clear error and legal
determinations de novo. Id. at 1120.
Defendants have produced Dixon’s grievance file, which shows that Dixon
failed to appeal the relevant grievances to the highest prison grievance authority.
Dixon’s grievances are clearly labeled as such, and Defendants represent that the
complete file has been produced. See id. (reversing district court’s factual
determination that prisoner had failed to exhaust remedies because the evidence
did not show that the appeal record was complete or authentic). On this record, we
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cannot say that the district court’s finding that Dixon failed to exhaust his remedies
was clearly erroneous.
Dixon argues alternatively that prison officials threatened him with
retaliation and thereby rendered further administrative remedies effectively
unavailable. The record establishes that Dixon continued to file grievances, even
regarding the prison staff, after the date of the alleged threats. The district court’s
determination that the prison staff’s conduct did not prevent Dixon from
exhausting his remedies was not clearly erroneous.
Finally, the district court’s dismissal of Dixon’s subpoena requests as moot
was proper.
AFFIRMED.
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