                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

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




                             FOR THE NINTH CIRCUIT



LARRY WIMBERLY,                                   No. 09-15706

               Plaintiff - Appellant,             D.C. No. 2:06-CV-00289-JAM-
                                                  GGH
   v.

COUNTY OF SACRAMENTO, Political                   MEMORANDUM *
Subdivision of the State of California; et
al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                      John A. Mendez, District Judge, Presiding

                             Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.




          *
             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).

PDM/Research
       Larry Wimberly, a California state prisoner, appeals pro se from the district

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

administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.

       Wimberly waived his right to challenge the district court’s factual findings

concerning exhaustion because he failed to object to the magistrate judge’s report.

See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (holding that failure to

object to a magistrate judge’s recommendation waives all objections to the

magistrate judge’s findings of fact, but does not ordinarily waive objections to

purely legal conclusions). However, contrary to appellees’ contention, Wimberly

may challenge the district court’s legal conclusions. See id.

       The district court properly dismissed the action because Wimberly did not

complete the jail grievance process prior to filing suit. See Booth v. Churner, 532

U.S. 731, 741 (2001) (stating that exhaustion is mandatory under § 1997e(a)); see

also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for a failure to

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

disputed issues of fact.”).




PDM/Research                              2                                    09-15706
       We construe the judgment as a dismissal without prejudice. See Wyatt, 315

F.3d at 1120 (providing that dismissals for failure to exhaust administrative

remedies are without prejudice).

       Wimberly’s remaining contentions are unpersuasive.

       AFFIRMED.




PDM/Research                              3                                     09-15706
