Jimmy Magee v. Chavez

FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JIMMY MAGEE, No. 09-15554
Plaintiff - Appellant, D.C. No. 1:05-cv-01563-OWW-
DLB
v.
CHAVEZ, Correctional Officer; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Former California state prisoner Jimmy Magee appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action, without
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
LSS/Research
prejudice, for failure to exhaust administrative remedies as required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th
Cir. 2003). We affirm.
The district court properly dismissed Magee’s action because he did not
complete the prison grievance process before filing suit in federal court. See
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (holding that
exhaustion under § 1997e(a) must occur prior to commencement of the action).
Further, Magee failed to show that he was prevented from exhausting before
bringing suit.
AFFIRMED.
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