                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 29 2010

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




                             FOR THE NINTH CIRCUIT



ANTHONY ALBERT JIMENEZ,                          No. 08-55420

               Plaintiff - Appellant,            D.C. No. 2:03-cv-05374-DDP-SH

  v.
                                                 MEMORANDUM *
FRANK CARHUNAGAN and SANDRA
L. LA FON, substituted for EL LA FON,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                            Submitted October 19, 2010 **


Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Anthony Albert Jimenez, a California state prisoner, appeals pro se from the

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


          *
             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 and denies Jimenez’s request for oral argument. See Fed. R.
App. P. 34(a)(2).
exhaust administrative remedies pursuant to 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 district court’s dismissal based on the failure to exhaust and review for

clear error its factual findings. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,

1059 (9th Cir. 2007). We affirm.

      As a preliminary matter, we reject Appellees’ contention that we lack

jurisdiction because Jimenez’s notice of appeal was untimely. See Solis v. County

of Los Angeles, 514 F.3d 946, 951 (9th Cir. 2008) (explaining timeliness of appeal

where judgment was not set forth on separate document as required by Fed. R. Civ.

P. 58(a)); see also Fed. R. App. P. 4(a)(7).

      The district court properly dismissed the action because Jimenez did not

properly exhaust the prison grievance process prior to filing suit. See Woodford v.

Ngo, 548 U.S. 81, 93-95 (2006) (“proper exhaustion” under § 1997e(a) is

mandatory and requires adherence to administrative procedural rules); see also

Booth v. Churner, 532 U.S. 731, 734 (2001) (inmate seeking only money damages

must complete any prison administrative process capable of addressing inmate’s

complaint and providing some form of relief, even if the process does not provide

for the recovery of monetary relief). We construe the dismissal of Jimenez’s

claims to be without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th


                                           2                                   08-55420
Cir. 2003) (dismissals for failure to exhaust administrative remedies are without

prejudice).

      We do not consider arguments raised for the first time on appeal. See Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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