                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 12 2012

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




                             FOR THE NINTH CIRCUIT



PATRICK OTIS NELSON,                             No. 10-17184

               Plaintiff - Appellant,            D.C. No. 2:08-cv-02481-FCD-
                                                 KJM
  v.

MURPHY, R.N., data entry medical                 MEMORANDUM *
personnel; COONEY, Correctional
Officer,

               Defendants - Appellees.



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

                           Submitted December 19, 2011 **

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

       Patrick Otis Nelson, 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 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

Nelson 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); Wyatt, 315 F.3d at 1120

(“A prisoner’s concession to nonexhaustion is a valid ground for dismissal . . . .”);

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring

exhaustion of administrative remedies prior to filing suit).

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief, nor arguments and allegations raised for the first time on

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

       Appellees’ Request for Judicial Notice filed on March 21, 2011 is denied.

       AFFIRMED.




                                             2                                       09-15545
