Opinion
No. 12-35254 D.C. No. 3:11-cv-05680-RBL
02-19-2013
THOMAS W.S. RICHEY, Plaintiff - Appellant, v. DOUGLAS THAUT, Defendant - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
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 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.