                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 19 2013

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




                             FOR THE NINTH CIRCUIT



SKY-STEVEN THOMAS MILLER,                        No. 10-35494

               Plaintiff - Appellant,            D.C. No. 3:09-cv-05094-BHS

  v.
                                                 MEMORANDUM *
PERRY BARTRAM; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Washington state prisoner Sky-Steven Thomas Miller appeals pro se from

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

deliberate indifference to serious medical needs. We have jurisdiction under 28




          *
             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).
U.S.C. § 1291. We review de novo a dismissal for failure to exhaust

administrative remedies, and for clear error any underlying factual determination.

Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010). We affirm.

      The district court properly dismissed without prejudice Miller’s deliberate

indifference action regarding defendants’ alleged failure to provide prescribed

footwear and custom orthotic inserts because Miller failed to exhaust his

administrative remedies. See id. (prisoners must exhaust administrative remedies

under applicable procedures and deadlines). The district court did not clearly err in

finding that administrative remedies remained available to Miller, but that he did

not exhaust his grievances through the necessary levels. Cf. id. at 822-23

(exhaustion is not required if administrative remedies are rendered “effectively

unavailable”).

      The district court did not abuse its discretion in denying Miller’s motion to

compel further discovery because Miller failed to establish that defendants altered

any documents or produced any altered documents in response to his discovery

request. See Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004)

(setting forth standard of review for discovery motions).

      AFFIRMED.




                                          2                                    10-35494
