Eriberto Penaloza v. Dr. Attygalla

U.S. Court of Appeals for the Ninth Circuit
Eriberto Penaloza v. Dr. Attygalla, 491 F. App'x 841 (9th Cir. 2012)

Eriberto Penaloza v. Dr. Attygalla

Opinion

MEMORANDUM **

California state prisoner Eriberto Pena-loza appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs following an assault by another inmate. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to exhaust administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.

The district court properly dismissed Penaloza’s action without prejudice because Penaloza failed to exhaust administrative remedies before filing suit and he failed to provide sufficient evidence to show that administrative remedies were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” is mandatory and requires adherence to administrative procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not required where administrative remedies are “effectively unavailable”); see also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact.”).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Reference

Full Case Name
Eriberto PENALOZA, Plaintiff-Appellant, v. Dr. ATTYGALLA; Et Al., Defendants-Appellees
Status
Unpublished