FILED
NOT FOR PUBLICATION OCT 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAMON E. JACKSON, No. 10-17331
Plaintiff - Appellant, D.C. No. 2:08-cv-02502-FCD-
CMK
v.
D. K. SISTO, Warden; 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 September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Lamon E. Jackson, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
*
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).
district court’s dismissal for failure to exhaust, and for clear error its factual
determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We
affirm.
The district court properly dismissed the action because Jackson’s failure to
submit a timely inmate grievance appeal as to his failure-to-protect claim did not
constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 83-84, 93 (2006)
(“[P]roper exhaustion” is mandatory and cannot be satisfied by filing an
administrative grievance that is properly rejected as “untimely or otherwise
procedurally defective[.]”); see also Booth v. Churner, 532 U.S. 731, 734 (2001)
(an inmate seeking only money damages must complete a prison administrative
process capable of addressing his complaint and providing some form of relief,
even if the process does not provide for the recovery of monetary relief).
We construe the dismissal of Jackson’s claims 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).
Jackson’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-17331