FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEREMY JEROME SMILEY, No. 10-15309
Plaintiff - Appellant, D.C. No. 3:08-cv-02592-SI
v.
MEMORANDUM *
R. L. MARTINEZ and KANE,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Jeremy Jerome Smiley, 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 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
*
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).
district court’s dismissal for failure to exhaust, and for clear error its factual
determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We
affirm.
The district court properly dismissed Smiley’s action because he failed to
exhaust administrative remedies or demonstrate that no pertinent relief was
available to him through the prison’s internal process. See Woodford v. Ngo, 548
U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is mandatory and requires
adherence to administrative procedural rules); cf. Marella v. Terhune, 568 F.3d
1024, 1027 (9th Cir. 2009) (per curiam) (administrative appeals process was
unavailable to inmate who had no ground to dispute the screen-out of his appeal).
Smiley’s remaining contentions are unpersuasive.
Smiley’s motion for appointment of counsel on appeal, attached to his
opening brief, is denied.
AFFIRMED.
2 10-15309