                                                                            FILED
                              NOT FOR PUBLICATION                            AUG 16 2012

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



MARIO A. WILLIAMS,                                 No. 11-17347

                Plaintiff - Appellant,             D.C. No. 2:09-cv-02665-GEB-
                                                   EFB
  v.

PEEL; et al.,                                      MEMORANDUM *

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                    Garland E. Burrell, Jr., District Judge, Presiding

                              Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Mario A. Williams, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his back injuries and related pain. We have jurisdiction under 28




          *
             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).
U.S.C. § 1291. We review de novo the district court’s dismissal for failure to

exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.

       The district court properly dismissed the action, without prejudice, because

Williams failed timely to exhaust administrative remedies prior to filing suit. See

Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is

mandatory and requires adherence to administrative procedural rules); Wyatt, 315

F.3d at 1119-20 (“[D]efendants have the burden of . . . proving the absence of

exhaustion[,]” and “[i]n deciding a motion to dismiss for failure to exhaust

nonjudicial remedies, the court may look beyond the pleadings and decide disputed

issues of fact.”).

       The district court properly denied Williams’ motion for summary judgment

as moot in light of its dismissal for failure to exhaust administrative remedies.

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

(per curiam).

       We do not consider any documents attached to Williams’ briefs that are not

part of the district court record. See Kirshner v. Uniden Corp. of Am., 842 F.2d

1074, 1077 (9th Cir. 1988).

       AFFIRMED.


                                           2                                    11-17347
