                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 17 2013

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




                             FOR THE NINTH CIRCUIT



CHESTER RAY WISEMAN,                             No. 11-55599

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01272-LAB-
                                                 NLS
  v.

ROBERT J. HERNANDEZ, Warden; et                  MEMORANDUM *
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       California state prisoner Chester Ray Wiseman appeals pro se from the

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

defendants violated his Eighth Amendment rights in connection with the denial of


          *
             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).
outdoor exercise. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal for failure to exhaust and for clear error any underlying factual

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

      The district court properly dismissed Wiseman’s action without prejudice

because Wiseman failed to exhaust his administrative remedies. See Woodford v.

Ngo, 548 U.S. 81, 93-95 (2006) (requiring proper and timely exhaustion of

prisoner claims). The district court did not clearly err in finding that Wiseman

failed to pursue all levels of administrative grievances available to him. Cf. Sapp,

623 F.3d at 822-23 (exhaustion is not required where administrative remedies are

rendered “effectively unavailable”).

      AFFIRMED.




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