                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 15 2012

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




                             FOR THE NINTH CIRCUIT



MICHAEL J. SMITH,                                No. 11-16919

               Plaintiff - Appellant,            D.C. No. 2:10-cv-00632-JCM-
                                                 PAL
  v.

BRIAN WILLIAMS, Warden; R. TATE,                 MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                             Submitted August 8, 2012 **

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

       Former Nevada state prisoner Michael J. Smith 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. Wyatt v. Terhune, 315 F.3d 1108,

1117 (9th Cir. 2003). We affirm.

      Smith contends that he is excused from exhausting his administrative

remedies because he was released from prison before he filed his amended

complaint. We do not consider this argument because Smith raises it for the first

time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam).

      AFFIRMED.




                                          2                                   11-16919
