                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 28 2011

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




                             FOR THE NINTH CIRCUIT



JEREMY JEROME SMILEY,                            No. 10-15309

               Plaintiff - Appellant,            D.C. No. 3:08-cv-02592-SI

  v.
                                                 MEMORANDUM *
R. L. MARTINEZ and KANE,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Jeremy Jerome Smiley, 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.

§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

          *
             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).
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 Smiley’s action because he failed to

exhaust administrative remedies or demonstrate that no pertinent relief was

available to him through the prison’s internal process. See Woodford v. Ngo, 548

U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is mandatory and requires

adherence to administrative procedural rules); cf. Marella v. Terhune, 568 F.3d

1024, 1027 (9th Cir. 2009) (per curiam) (administrative appeals process was

unavailable to inmate who had no ground to dispute the screen-out of his appeal).

       Smiley’s remaining contentions are unpersuasive.

       Smiley’s motion for appointment of counsel on appeal, attached to his

opening brief, is denied.

       AFFIRMED.




                                             2                                       10-15309
