                                                                           FILED
                             NOT FOR PUBLICATION                            APR 24 2012

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




                             FOR THE NINTH CIRCUIT



DE’ARCEY JAMUL STEWART,                           No. 10-17446

               Plaintiff - Appellant,             D.C. No. 3:09-cv-01527-JSW

  v.
                                                  MEMORANDUM *
M. S. EVANS; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                              Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       California state prisoner De’Arcey Jamul Stewart appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to

exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.




          *
             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).
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal for failure to exhaust, and for clear error its factual

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

affirm.

       The district court properly dismissed the action without prejudice because

Stewart failed to exhaust administrative remedies prior to filing suit. See

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

mandatory and requires adherence to administrative procedural rules).

       The district court did not abuse its discretion in denying Stewart’s motion to

compel. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth

standard of review and describing trial court’s broad discretion to permit or deny

discovery).

       Stewart’s remaining contentions are unpersuasive.

       Stewart’s request to supplement the record is denied. See Kirshner v.

Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers not filed with

the district court or admitted into evidence by that court are not part of the clerk’s

record and cannot be part of the record on appeal.”).

       AFFIRMED.




                                             2                                       10-17446
