NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTOPHER SURICO, No. 13-16342
Plaintiff - Appellant, D.C. No. 1:11-cv-00762-GSA
v.
MEMORANDUM*
TYLER, Sr. Psychologist; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**
Submitted August 13, 2014***
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
California state prisoner Christopher Surico appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1983 action alleging that defendants failed to protect him from assault by
another inmate. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010). We affirm.
The district court properly concluded that Surico failed to exhaust his
administrative remedies because Surico did not exhaust prison grievance
procedures concerning his claim or show that exhaustion was effectively
unavailable. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (exhaustion is
mandatory and must be done in a timely manner consistent with prison policies);
cf. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s
failure to exhaust where prisoner is prevented from doing so by a prison official’s
mistake).
The district court did not abuse its discretion in denying Surico’s motions for
appointment of counsel because Surico failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and explaining the “exceptional circumstances”
requirement).
The district court did not err in striking Surico’s unauthorized surreply or his
“motion for discovery,” directed to the court.
AFFIRMED.
2 13-16342