                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 21 2013

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




                             FOR THE NINTH CIRCUIT



SAMUEL KENNETH PORTER,                           No. 12-56366

               Plaintiff - Appellant,            D.C. No. 3:10-cv-01817-JLS-PCL

  v.
                                                 MEMORANDUM *
MUABE HOWARD, Nurse; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Samuel Kenneth Porter, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that

prison officials retaliated against him by arranging his rape by other inmates in

          *
             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).
violation of his First, Eighth, and Fourteenth Amendment rights. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to exhaust administrative remedies, and for clear error the

district court’s underlying factual determinations. Wyatt v. Terhune, 315 F.3d

1108, 1117 (9th Cir. 2003). We affirm in part, vacate in part, and remand.

      The district court properly dismissed Porter’s action because Porter did not

properly exhaust the prison grievance process with respect to his claims and failed

to provide sufficient evidence to show that administrative remedies were

effectively unavailable. See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding

that “proper exhaustion” is mandatory and requires adherence to administrative

procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (concluding

that exhaustion will not generally be excused where a prisoner lacks a “reasonable

good faith belief” that administrative remedies are unavailable); O’Guinn v.

Lovelock Corr. Ctr., 502 F.3d 1056, 1062 (9th Cir. 2007) (holding that grievances

cannot be exhausted by means outside the prison’s internal appeals process, such

as through letters of complaint). Porter provides no support for his contention that

he was excused from the requirement that he file an administrative grievance by

operation of the Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609.




                                           2                                   12-56366
      However, we vacate the judgment and remand for the limited purpose of

entering dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (providing that

if the court concludes that a prisoner has failed to exhaust, the proper remedy is

dismissal of those claims without prejudice).

      Porter’s other arguments were raised for the first time on appeal and we do

not consider them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      Porter’s requests, set forth in his briefs, for a polygraph examination, the

initiation of a federal investigation into his rape claims, and appointment of

counsel on remand, are denied.

      AFFIRMED in part; VACATED in part; and REMANDED for the

entry of an order dismissing Porter’s unexhausted claims without prejudice.




                                           3                                     12-56366
