TONY POWELL V. D. SMITH, No. 11-17551 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 22 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TONY EDWARD POWELL, Plaintiff - Appellant, No. 11-17551 D.C. No. 1:08-cv-01443-SMM v. MEMORANDUM * D. SMITH, Warden; McFADDEN, Regional Director, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Stephen M. McNamee, District Judge, Presiding Submitted May 14, 2013 ** Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges. Federal prisoner Tony Edward Powell appeals pro se from the district court s judgment dismissing his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that * 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). defendants subjected him to inhumane living conditions during a prison lockdown. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust administrative remedies, and for clear error the district court s underlying factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm. The district court properly dismissed Powell s action because Powell did not timely exhaust prison grievance procedures concerning his claim. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be done in a timely manner consistent with prison policies); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (a prisoner must exhaust available administrative remedies before filing a complaint; exhaustion during the course of litigation is not sufficient). Powell s motion for leave to file supplemental materials, filed on March 22, 2013, is denied. AFFIRMED. 2 11-17551

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