NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 28 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT RICKY RIVERA, No. 21-15853

Plaintiff-Appellant, D.C. No. 1:16-cv-01817-AWI-BAM v. DAVE DAVEY, Warden; M. MEMORANDUM* ROBICHEAUX; ED CRIANE; S.M.V. CHAPOLEUN,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Submitted June 15, 2022** Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.

California state prisoner Ricky Rivera appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action alleging violation of his free-exercise rights. We have jurisdiction

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (legal rulings on exhaustion); Thompson v. Paul, 547 F.3d 1055, 1058 (9th Cir. 2008) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.

The district court properly dismissed Rivera’s action because it was clear from the face of Rivera’s operative complaint that Rivera failed to exhaust available administrative remedies prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” (citation and internal quotation marks omitted)); Albino, 747 F.3d at 1169 (where a failure to exhaust is clear from the face of the complaint, a district court may dismiss for failure to state a claim).

The motion to file a late reply brief is denied as unnecessary. The reply brief has been filed and considered.

AFFIRMED.

2 21-15853