DE'ARCEY STEWART V. M. EVANS, No. 10-17446 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 24 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DE ARCEY JAMUL STEWART, Plaintiff - Appellant, No. 10-17446 D.C. No. 3:09-cv-01527-JSW v. MEMORANDUM * M. S. EVANS; et al., Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding Submitted April 17, 2012 ** Before: LEAVY, PAEZ, and BEA, Circuit Judges. California state prisoner De Arcey Jamul Stewart 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. * 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). § 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 its factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm. The district court properly dismissed the action without prejudice because Stewart failed to exhaust administrative remedies prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that proper exhaustion is mandatory and requires adherence to administrative procedural rules). The district court did not abuse its discretion in denying Stewart s motion to compel. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review and describing trial court s broad discretion to permit or deny discovery). Stewart s remaining contentions are unpersuasive. Stewart s request to supplement the record is denied. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) ( Papers not filed with the district court or admitted into evidence by that court are not part of the clerk s record and cannot be part of the record on appeal. ). AFFIRMED. 2 10-17446

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