FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS W.S. RICHEY, No. 12-35254
Plaintiff - Appellant, D.C. No. 3:11-cv-05680-RBL
v.
MEMORANDUM*
DOUGLAS THAUT,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Washington state prisoner Thomas W.S. Richey appeals pro se from the
district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action
for failure to exhaust administrative remedies as required by the Prison Litigation
*
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).
Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s dismissal for failure to exhaust and for clear
error any underlying factual findings. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th
Cir. 2010). We affirm.
The district court properly dismissed Richey’s action without prejudice
because Richey failed to exhaust his administrative remedies. See Woodford v.
Ngo, 548 U.S. 81, 93 (2006) (requiring proper and timely exhaustion of prisoner
claims). The district court did not clearly err in finding that Richey was required to
appeal the non-grievability determination to the grievance program manager and
failed to do so. Cf. Sapp, 623 F.3d at 822-23 (exhaustion is not required where
administrative remedies are rendered “effectively unavailable”).
AFFIRMED.
2 12-35254