Jeremy Smiley v. R. Martinez, et al, No. 10-15309 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 28 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JEREMY JEROME SMILEY, Plaintiff - Appellant, No. 10-15309 D.C. No. 3:08-cv-02592-SI v. MEMORANDUM * R. L. MARTINEZ and KANE, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Submitted March 8, 2011 ** Before: FARRIS, O SCANNLAIN, and BYBEE, Circuit Judges. Jeremy Jerome Smiley, a California state prisoner, appeals pro se from the district court s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies under 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 * 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). district court s dismissal for failure to exhaust, and for clear error its factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm. The district court properly dismissed Smiley s action because he failed to exhaust administrative remedies or demonstrate that no pertinent relief was available to him through the prison s internal process. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) ( proper exhaustion is mandatory and requires adherence to administrative procedural rules); cf. Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (administrative appeals process was unavailable to inmate who had no ground to dispute the screen-out of his appeal). Smiley s remaining contentions are unpersuasive. Smiley s motion for appointment of counsel on appeal, attached to his opening brief, is denied. AFFIRMED. 2 10-15309

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