                             NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        MAR 16 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

 WINIFRED JIAU,                                    No. 16-15147

                   Plaintiff-Appellant,            D.C. No. 3:13-cv-00248-WHA

   v.
                                                   MEMORANDUM*
 KAIRE POOLE; RANDY L. TEWS,
 Warden,

                   Defendants-Appellees.

                     Appeal from the United States District Court
                       for the Northern District of California
                      William Alsup, District Judge, Presiding

                              Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        Winifred Jiau, a former federal prisoner, appeals pro se from the district

court’s summary judgment for failure to exhaust administrative remedies in her

action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015).

We affirm.

      The district court properly granted summary judgment because Jiau failed to

raise a genuine dispute of material fact as to whether she properly exhausted her

administrative remedies, or whether there was “something in [her] particular case

that made the existing and generally available administrative remedies effectively

unavailable to [her].” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); see

also Woodford v. Ngo, 548 U.S. 81, 90 (2006) (requiring proper exhaustion, which

means “using all steps that the agency holds out, and doing so properly (so that the

agency addresses the issues on the merits)” (emphasis, citation, and internal

quotation marks omitted)). Because we affirm the district court’s summary

judgment based on failure to exhaust administrative remedies, we treat the

judgment as a dismissal without prejudice. See Lira v. Herrera, 427 F.3d 1164,

1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice

when there is no presuit exhaustion[.]” (emphasis, citation, and internal quotation

marks omitted)).

      In light of our disposition, we do not reach the merits of Jiau’s claims.

      We do not consider Jiau’s contentions concerning appointment of counsel,

                                          2                                       16-15147
leave to amend, leave to conduct discovery, or deliberate indifference to medical

needs because they were not properly raised before the district court. See L.A.

News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998).

      We reject as unsupported by the record Jiau’s contentions that defendants

committed perjury.

      AFFIRMED.




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