                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 29 2012

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




                             FOR THE NINTH CIRCUIT



ERIBERTO PENALOZA,                               No. 11-55426

               Plaintiff - Appellant,            D.C. No. 2:09-cv-07347-GHK-RZ

  v.
                                                 MEMORANDUM *
DR. ATTYGALLA; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, Chief Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       California state prisoner Eriberto Penaloza appeals pro se from the district

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

indifference to his medical needs following an assault by another inmate. We have




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

dismissal for failure to exhaust administrative remedies. Wyatt v. Terhune, 315

F.3d 1108, 1117 (9th Cir. 2003). We affirm.

      The district court properly dismissed Penaloza’s action without prejudice

because Penaloza failed to exhaust administrative remedies before filing suit and

he failed to provide sufficient evidence to show that administrative remedies were

effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 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) (exhaustion is not required where administrative remedies are “effectively

unavailable”); see also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to

dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the

pleadings and decide disputed issues of fact.”).

      AFFIRMED.




                                          2                                    11-55426
