Tracy Foley v. Ken Clark , 384 F. App'x 563 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRACY ROMERO FOLEY, No. 09-17129
Plaintiff - Appellant, D.C. No. 1:08-cv-00769-DCB-1
v.
MEMORANDUM *
M. ANCHETA,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
David C. Bury, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Tracy Romero Foley, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
*
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).
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
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), and we
affirm.
The district court properly dismissed Foley’s Eighth Amendment claim
because he failed to exhaust administrative remedies prior to filing suit. See
Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion”
under 42 U.S.C. § 1997e(a) is mandatory and requires adherence to administrative
procedural rules); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)
(affirming dismissal for failure to exhaust prison remedies where inmate’s
grievance failed to “alert[] the prison to the nature of the wrong for which redress
[was] sought.”).
Foley’s remaining contentions are unpersuasive.
We reject Foley’s May 12, 2010, request to stay this appeal. See McKinney
v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam) (prisoner may not
satisfy exhaustion requirement while federal action is pending, but dismissal is
without prejudice to refiling federal action once exhaustion requirement is met).
AFFIRMED.
2 09-17129