                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 25 2010

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




                             FOR THE NINTH CIRCUIT



JOHN E. BARNHOUSE,                               No. 09-35518

               Plaintiff - Appellant,            D.C. No. 3:08-cv-05553-RJB

  v.
                                                 MEMORANDUM *
ERIC YOUNG; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                             Submitted August 10, 2010 **

Before:        HAWKINS, McKEOWN, and IKUTA, Circuit Judges.

       John E. Barnhouse, a Washington state prisoner, appeals pro se from the

district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action

for failure to exhaust administrative remedies under the Prison Litigation Reform

Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We

          *
             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).
review de novo the district court’s application of substantive law and its factual

determinations for clear error, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.

2003), and we affirm.

      The district court correctly determined that Barnhouse failed to properly

exhaust administrative remedies, even though defendants allegedly confiscated his

pen and paper for the duration of the 20-day filing deadline, because Barnhouse

waited almost two years to file his grievances. See Woodford v. Ngo, 548 U.S. 81,

93-95 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and

cannot be satisfied by filing an untimely or otherwise procedurally defective

administrative grievance or appeal); see also McKinney v. Carey, 311 F.3d 1198,

1199 (9th Cir. 2002) (per curiam) (requiring inmates to exhaust administrative

remedies prior to filing suit in federal court).

      The district court’s rejection of Barnhouse’s claim that he filed an earlier

grievance was not clearly erroneous. See Wyatt, 315 F.3d at 1119-20 (“In deciding

a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look

beyond the pleadings and decide disputed issues of fact.”).

      Barnhouse’s remaining contentions are unpersuasive.

      AFFIRMED.




                                            2                                   09-35518
