                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 24 2011

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




                            FOR THE NINTH CIRCUIT



MATTHEW RONALD CREAMER,                          No. 09-16425

               Petitioner - Appellant,           D.C. No. 2:08-cv-02275-SRB-
                                                 MEA
  v.

CHARLES L. RYAN, Interim Director of             MEMORANDUM *
ADOC and STATE OF ARIZONA
ATTORNEY GENERAL,

               Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Arizona prisoner Matthew Ronald Creamer appeals pro se from the district

court’s dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust.

We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

          *
             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).
       Creamer contends that because Arizona law does not provide for judicial

review of prison disciplinary proceedings, he was not required to exhaust his

claims in state court.

       In Arizona, state court review of an inmate disciplinary decision may be

obtained by filing a petition for special action. See Rose v. Ariz. Dep’t of

Corrections, 804 P.2d 845, 849 (Ariz. Ct. App. 1991). Contrary to Creamer’s

argument, Arizona Revised Statutes (“A.R.S.”) § 31-201.01(L) does not bar the

initiation of a special action by a prisoner, because it only applies to tort claims.

Likewise, A.R.S. § 12-302 does not prevent the filing of a special action by a

prisoner. See A.R.S. § 12-302(E) (inability to pay filing fees does not prevent

filing of an action).

       Because Creamer did not challenge his disciplinary proceedings by filing a

special action in state court, the district court properly dismissed his claims as

unexhausted. See 28 U.S.C. § 2254(b)(1)(A), (c).

       The district court did not abuse its discretion by denying Creamer’s motion

for reconsideration because he did not identify any new evidence, change in law,

clear error, or manifest injustice in the court’s order. See Sch. Dist. No. 1J,

Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)

(setting forth standard of review and grounds for reconsideration).


                                            2                                     09-16425
       Finally, the district court did not abuse its discretion by denying Creamer’s

request for a stay. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district

court may not grant a stay where the petition contains no exhausted claims).

      AFFIRMED.




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