FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LARRY DARNELL ARTHUR, No. 08-56219
Plaintiff - Appellant, D.C. No. 3:06-cv-02455-BEN-
RBB
v.
R. TORRES, Correctional Sergeant; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
California state prisoner Larry Darnell Arthur appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
exhaust administrative remedies as required by the Prison Litigation Reform Act,
*
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).
42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review
de novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.
The district court properly dismissed Arthur’s excessive force claims
because Arthur did not properly exhaust administrative remedies before filing his
complaint in federal court, and failed to show that administrative remedies were
effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(explaining that “proper exhaustion” requires adherence to administrative
procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (although
exhaustion may not be required where improper screening of grievances “give[s]
rise to a reasonable good faith belief that administrative remedies are effectively
unavailable[,]” inmate who failed to follow explicit instructions on how to appeal
had no such reasonable belief).
We construe the dismissal of Arthur’s claims to be without prejudice. See
Wyatt, 315 F.3d at 1120 (dismissals for failure to exhaust administrative remedies
are without prejudice).
We do not consider issues not adequately raised in Arthur’s opening brief.
See Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211,
1217 (9th Cir. 1997).
AFFIRMED.
2 08-56219