FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES ZACHARIE, No. 08-17213
Plaintiff - Appellant, D.C. No. 2:07-CV-01749-FCD-
EFB
v.
M. CHIRILA; 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.
Charles Zacharie, a California state prisoner, appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional violations
*
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).
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in connection with a disciplinary hearing and the deprivation of his personal
materials. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
the district court’s dismissal for failure to state a claim, Barnett v. Centoni, 31 F.3d
813, 816 (9th Cir. 1994) (per curiam), and its dismissal for failure to exhaust,
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We review for clear error
the district court’s factual determinations. Id. We affirm.
The district court properly granted summary judgment to defendant Chirila
on the due process claim because the undisputed evidence shows that, given the
process afforded in its totality, Zacharie was granted a rehearing that resulted in the
same guilty finding and same term in the Security Housing Unit as the allegedly
procedurally defective hearing, and he does not contend that he was denied due
process at the rehearing. See Zinermon v. Burch, 494 U.S. 113, 126 (1990)
(holding that a constitutional violation is not complete “unless and until the State
fails to provide due process” within the established administrative or statutory
scheme).
The district court properly dismissed the claims against defendant Gonzales
for failure to exhaust because Zacharie’s failure to submit an inmate grievance
within the fifteen-working-day deadline did not constitute proper exhaustion. See
Woodford v. Ngo, 548 U.S. 81, 83-84, 95 (2006) (holding that “proper exhaustion”
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under 42 U.S.C. § 1997 is mandatory and cannot be satisfied “by filing an untimely
or otherwise procedurally defective administrative grievance”); see also Cal. Code
Regs. tit. 15, § 3084.6(c) (providing that an inmate must submit an administrative
appeal within fifteen working days of the event being grieved or the decision being
appealed). We construe the dismissal of the claim to be without prejudice. See
Wyatt, 315 F.3d at 1120 (explaining that if the court concludes that a prisoner has
failed to exhaust, the proper remedy is dismissal without prejudice).
Zacharie’s remaining contentions are unpersuasive.
AFFIRMED.
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