FILED
NOT FOR PUBLICATION JUN 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAMUEL KENNETH PORTER, No. 12-56366
Plaintiff - Appellant, D.C. No. 3:10-cv-01817-JLS-PCL
v.
MEMORANDUM *
MUABE HOWARD, Nurse; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Samuel Kenneth Porter, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that
prison officials retaliated against him by arranging his rape by other inmates in
*
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).
violation of his First, Eighth, and Fourteenth Amendment rights. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal for failure to exhaust administrative remedies, and for clear error the
district court’s underlying factual determinations. Wyatt v. Terhune, 315 F.3d
1108, 1117 (9th Cir. 2003). We affirm in part, vacate in part, and remand.
The district court properly dismissed Porter’s action because Porter did not
properly exhaust the prison grievance process with respect to his claims and failed
to provide sufficient evidence to show that administrative remedies were
effectively unavailable. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding
that “proper exhaustion” is mandatory and requires adherence to administrative
procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (concluding
that exhaustion will not generally be excused where a prisoner lacks a “reasonable
good faith belief” that administrative remedies are unavailable); O’Guinn v.
Lovelock Corr. Ctr., 502 F.3d 1056, 1062 (9th Cir. 2007) (holding that grievances
cannot be exhausted by means outside the prison’s internal appeals process, such
as through letters of complaint). Porter provides no support for his contention that
he was excused from the requirement that he file an administrative grievance by
operation of the Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609.
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However, we vacate the judgment and remand for the limited purpose of
entering dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (providing that
if the court concludes that a prisoner has failed to exhaust, the proper remedy is
dismissal of those claims without prejudice).
Porter’s other arguments were raised for the first time on appeal and we do
not consider them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Porter’s requests, set forth in his briefs, for a polygraph examination, the
initiation of a federal investigation into his rape claims, and appointment of
counsel on remand, are denied.
AFFIRMED in part; VACATED in part; and REMANDED for the
entry of an order dismissing Porter’s unexhausted claims without prejudice.
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