Thomas Richey v. Douglas Thaut

FILED NOT FOR PUBLICATION FEB 19 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS W.S. RICHEY, No. 12-35254 Plaintiff -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