FILED
NOT FOR PUBLICATION DEC 29 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS EUGENE MOORE, No. 08-17005
Plaintiff - Appellant, D.C. No. 2:06-cv-02755-FCD-
EFB
v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Thomas Eugene Moore, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to 28
U.S.C. § 1915A for failure to state a claim. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000),
and may affirm on any ground supported by the record, O’Guinn v. Lovelock Corr.
Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007). We affirm.
Moore does not challenge the dismissal under Heck v. Humphrey, 512 U.S.
477 (1994), of his claims related to the alleged destruction of evidence in his
criminal case, thus we deem these claims abandoned. See Knevelbaard Dairies v.
Kraft Foods, Inc., 232 F.3d 979, 984 (9th Cir. 2000).
We affirm the dismissal of the claims in the First Amended Complaint
concerning alleged events at High Desert State Prison and the alleged public
disclosure of Moore’s medical records, because it is clear from the face of the
complaint and Moore’s concession on appeal that he did not exhaust his
administrative remedies prior to filing this lawsuit. See Lira v. Herrera, 427 F.3d
1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without
prejudice when there is no presuit exhaustion, even if there is exhaustion while suit
is pending.” (internal quotation marks and citation omitted)); Wyatt v. Terhune,
315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is
a valid ground for dismissal . . . .”).
We construe the judgment as a dismissal without prejudice. See Trimble v.
City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam) (stating that
DS/Research 2 08-17005
dismissals under Heck are without prejudice); Wyatt, 315 F.3d at 1120 (stating that
dismissals for failure to exhaust administrative remedies are without prejudice).
AFFIRMED.
DS/Research 3 08-17005