ERIBERTO PENALOZA V. DR. ATTYGALLA, No. 11-55426 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 29 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ERIBERTO PENALOZA, Plaintiff - Appellant, No. 11-55426 D.C. No. 2:09-cv-07347-GHK-RZ v. MEMORANDUM * DR. ATTYGALLA; et al., Defendants - Appellees. Appeal from the United States District Court for the Central District of California George H. King, Chief Judge, Presiding Submitted November 13, 2012 ** Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges. California state prisoner Eriberto Penaloza appeals pro se from the district court s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs following an assault by another inmate. We have * 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). jurisdiction under 28 U.S.C. § 1291. We review de novo the district court s dismissal for failure to exhaust administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm. The district court properly dismissed Penaloza s action without prejudice because Penaloza failed to exhaust administrative remedies before filing suit and he failed to provide sufficient evidence to show that administrative remedies were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 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) (exhaustion is not required where administrative remedies are effectively unavailable ); see also Wyatt, 315 F.3d at 1119-20 ( In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. ). AFFIRMED. 2 11-55426

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