Thomas Hargrove v. Washington State Department Of

FILED
NOT FOR PUBLICATION NOV 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS RANDALL HARGROVE; Nos. 11-35470
MICHAEL STEVEN NOVAK, 11-35518
Plaintiffs - Appellants, D.C. No. 2:10-cv-00363-RBL
v.
MEMORANDUM *
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,
Defendants - Appellees.
Appeals from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
**
Submitted November 13, 2012
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
In these consolidated appeals, Washington state prisoners Thomas Randall
Hargrove and Michael Steven Novak appeal pro se from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment dismissing their 42 U.S.C. § 1983 action alleging First Amendment
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal for failure to exhaust. O’Guinn v. Lovelock Corr. Ctr.,
502 F.3d 1056, 1059 (9th Cir. 2007). We may affirm on any ground supported by
the record, id., and we affirm.
Dismissal for failure to exhaust was proper because plaintiffs failed to
demonstrate that they fully exhausted administrative remedies prior to filing suit.
See McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam)
(requiring dismissal without prejudice when there is no pre-suit exhaustion).
Plaintiffs’ contention that the district court failed to conduct a de novo
review is unavailing.
AFFIRMED.
2 11-35470