FILED
NOT FOR PUBLICATION AUG 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON WAYNE McNEAL, JR., No. 12-17196
Plaintiff - Appellant, D.C. No. 5:11-cv-02798-EJD
v.
MEMORANDUM*
J. RUSH; O. SPENCER,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
California state prisoner Vernon Wayne McNeal, Jr., appeals pro se from the
district court’s judgment dismissing for failure to exhaust administrative remedies
his 42 U.S.C. § 1983 action alleging Eighth Amendment claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Sapp v. Kimbrell, 623
*
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).
F.3d 813, 821 (9th Cir. 2010), and we affirm.
The district court properly concluded that McNeal failed to exhaust his
administrative remedies, and that McNeal did not demonstrate that such remedies
were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95
(2006) (holding that “proper exhaustion” is mandatory and requires adherence to
administrative procedural rules); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.
2010) (where defendant establishes failure to exhaust, burden shifts to plaintiff to
prove that administrative remedies were unavailable to him).
AFFIRMED.
2 12-17196