                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 03 2010

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




                             FOR THE NINTH CIRCUIT



JAMES ARTHUR BATTLE,                              No. 09-35434

               Plaintiff - Appellant,             D.C. No. 2:08-cv-00642-RAJ

   v.
                                                  MEMORANDUM *
DEBRA HOLLY,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                             Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        James Arthur Battle, a Washington 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. See Fed. R. App. P. 34(a)(2).

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exhaust administrative remedies pursuant to the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review de novo the 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), and we affirm.

       The district court properly dismissed the action because Battle did not

exhaust available administrative remedies before filing his federal action. See

Booth v. Churner, 532 U.S. 731, 739-41 (2001) (holding that exhaustion of

available administrative remedies is mandatory under the PLRA regardless of the

relief offered through administrative procedures); see also 42 U.S.C. § 1997e(a)

(allowing no prisoner to bring an action concerning prison conditions under § 1983

until available administrative remedies are exhausted). Battle’s arguments in

opposition to the motion to dismiss were insufficient to defeat the motion. See

Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for a failure to

exhaust nonjudicial remedies, the court may look beyond the pleadings and decide

disputed issues of fact.”).

       Battle’s remaining contentions are unpersuasive.

       We will not consider documents presented for the first time on appeal.

See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (explaining that


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documents not presented to the district court are not part of the record on appeal).

       Battle’s June 22, 2009 motion is construed as a motion to file a supplemental

brief, and is granted.

       AFFIRMED.




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