                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 11 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DANIEL DIXON,                                    No. 10-35433

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00437-BLW

  v.
                                                 MEMORANDUM*
CORRECTIONAL CORPORATION OF
AMERICA, INC.; ACOSTA; DOSER;
WILKERSON; PHILLIP VALDEZ;
IDAHO CORRECTIONAL CENTER,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                            Submitted March 9, 2011**
                                Portland, Oregon

Before: D.W. NELSON, THOMAS, and GRABER, Circuit Judges.




        *
             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).
      Daniel Dixon appeals the district court’s order granting the Defendants’

motion to dismiss Dixon’s 42 U.S.C. § 1983 suit because Dixon failed to exhaust

his administrative remedies pursuant to the Prison Litigation Reform Act of 1995.

See 42 U.S.C. § 1997e(a). Dixon also appeals the district court’s dismissal of his

subpoena requests as moot. We affirm.

      “[W]e have held that the failure to exhaust nonjudicial remedies that are not

jurisdictional should be treated as a matter in abatement, which is subject to an

unenumerated [Federal Rule of Civil Procedure] 12(b) motion rather than a motion

for summary judgment.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).

“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.” Id. at

1119-20. We review the district court’s factual findings for clear error and legal

determinations de novo. Id. at 1120.

      Defendants have produced Dixon’s grievance file, which shows that Dixon

failed to appeal the relevant grievances to the highest prison grievance authority.

Dixon’s grievances are clearly labeled as such, and Defendants represent that the

complete file has been produced. See id. (reversing district court’s factual

determination that prisoner had failed to exhaust remedies because the evidence

did not show that the appeal record was complete or authentic). On this record, we


                                          2
cannot say that the district court’s finding that Dixon failed to exhaust his remedies

was clearly erroneous.

      Dixon argues alternatively that prison officials threatened him with

retaliation and thereby rendered further administrative remedies effectively

unavailable. The record establishes that Dixon continued to file grievances, even

regarding the prison staff, after the date of the alleged threats. The district court’s

determination that the prison staff’s conduct did not prevent Dixon from

exhausting his remedies was not clearly erroneous.

      Finally, the district court’s dismissal of Dixon’s subpoena requests as moot

was proper.

      AFFIRMED.




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