John Baker v. Yolanda Martinez ( 2012 )

FILED
NOT FOR PUBLICATION SEP 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN R. BAKER, No. 11-15807
Plaintiff - Appellant, D.C. No. 4:07-cv-00576-FRZ
v.
MEMORANDUM *
YOLANDA MARTINEZ, Deputy Warden
at Santa Rita unit; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Arizona state prisoner John R. Baker appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging various constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003), and for an abuse of discretion a dismissal for failure to serve the summons
and complaint in a timely manner, Oyama v. Sheehan (In re Sheehan), 253 F.3d
507, 512-13 (9th Cir. 2001). We affirm.
The district court properly dismissed without prejudice the claims against
defendants Martinez and Quiroz because Baker failed to exhaust administrative
remedies prior to filing suit. 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).
The district court did not abuse its discretion in dismissing without prejudice
the claims against defendants Sanchez and Verdugo because Baker failed to effect
timely service or establish good cause for not having done so. See Fed. R. Civ. P.
4(m) (requiring service within 120 days after the complaint is filed); In re Sheehan,
253 F.3d at 512-13 (discussing good cause standard).
Baker’s contentions that the district court judge was biased are unpersuasive.
AFFIRMED.
2 11-15807