                                                                              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                              NOT FOR PUBLICATION                              JAN 11 2010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



 CHARLES ZACHARIE,                                 No. 08-17213

                Plaintiff - Appellant,             D.C. No. 2:07-CV-01749-FCD-
                                                   EFB
   v.

 M. CHIRILA; et al.,                               MEMORANDUM *

                Defendants - Appellees.



                      Appeal from the United States District Court
                          for the Eastern District of California
                     Frank C. Damrell, Jr., District Judge, Presiding

                             Submitted December 15, 2009 **


Before:         GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

        Charles Zacharie, a California state prisoner, appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional violations



          *
             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).

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in connection with a disciplinary hearing and the deprivation of his personal

materials. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo

the district court’s dismissal for failure to state a claim, Barnett v. Centoni, 31 F.3d

813, 816 (9th Cir. 1994) (per curiam), and its dismissal for failure to exhaust,

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We review for clear error

the district court’s factual determinations. Id. We affirm.

       The district court properly granted summary judgment to defendant Chirila

on the due process claim because the undisputed evidence shows that, given the

process afforded in its totality, Zacharie was granted a rehearing that resulted in the

same guilty finding and same term in the Security Housing Unit as the allegedly

procedurally defective hearing, and he does not contend that he was denied due

process at the rehearing. See Zinermon v. Burch, 494 U.S. 113, 126 (1990)

(holding that a constitutional violation is not complete “unless and until the State

fails to provide due process” within the established administrative or statutory

scheme).

       The district court properly dismissed the claims against defendant Gonzales

for failure to exhaust because Zacharie’s failure to submit an inmate grievance

within the fifteen-working-day deadline did not constitute proper exhaustion. See

Woodford v. Ngo, 548 U.S. 81, 83-84, 95 (2006) (holding that “proper exhaustion”


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under 42 U.S.C. § 1997 is mandatory and cannot be satisfied “by filing an untimely

or otherwise procedurally defective administrative grievance”); see also Cal. Code

Regs. tit. 15, § 3084.6(c) (providing that an inmate must submit an administrative

appeal within fifteen working days of the event being grieved or the decision being

appealed). We construe the dismissal of the claim to be without prejudice. See

Wyatt, 315 F.3d at 1120 (explaining that if the court concludes that a prisoner has

failed to exhaust, the proper remedy is dismissal without prejudice).

       Zacharie’s remaining contentions are unpersuasive.

       AFFIRMED.




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