Thomas Richey v. Douglas Thaut , 509 F. App'x 659 ( 2013 )


Menu:
  •                                                                            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    NOT FOR PUBLICATION                             FEB 19 2013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
    

Document Info

Docket Number: 12-35254

Citation Numbers: 509 F. App'x 659

Judges: Fernandez, Tashima, Wardlaw

Filed Date: 2/19/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023