                                                                            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                             NOT FOR PUBLICATION                            JAN 11 2010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).

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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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