FILED
NOT FOR PUBLICATION AUG 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES EDWARD BOWELL, No. 13-16530
Plaintiff - Appellant, D.C. No. 2:12-cv-00603-JAM-
EFB
v.
T. SMITH, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
California state prisoner James Edward Bowell appeals pro se from the
district court’s judgment dismissing for failure to exhaust administrative remedies
his 42 U.S.C. § 1983 action alleging excessive force by a prison official. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747
*
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 1162, 1171 (9th Cir. 2014) (en banc). We affirm.
The district court properly concluded that Bowell failed to exhaust his
administrative remedies because Bowell did not exhaust his grievance to the final
level of review or demonstrate that administrative 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); Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010) (for
administrative remedies to be effectively unavailable, “the inmate must establish
(1) that he actually filed a grievance or grievances that, if pursued through all
levels of administrative appeals, would have sufficed to exhaust the claim that he
seeks to pursue in federal court, and (2) that prison officials screened his grievance
or grievances for reasons inconsistent with or unsupported by applicable
regulations”).
Bowell’s request for publication, filed on January 31, 2014, is denied.
Bowell’s request for appellate counsel, set forth in his opening brief, is
denied.
Appellee’s motion to strike Bowell’s “Supplemental Clarification” is
granted.
AFFIRMED.
2 13-16530
Bowell v. Smith, No. 13-16530
THOMAS, Circuit Judge, dissenting:
I respectfully dissent.
3 13-16530