                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 19 2013

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



                             FOR THE NINTH CIRCUIT


THOMAS W.S. RICHEY,                              No. 12-35254

               Plaintiff - Appellant,            D.C. No. 3:11-cv-05680-RBL

  v.
                                                 MEMORANDUM*
DOUGLAS THAUT,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                            Submitted February 11, 2013**

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

       Washington state prisoner Thomas W.S. Richey 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 as required by the Prison Litigation



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

We review de novo the district court’s 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 Richey’s action without prejudice

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

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

claims). The district court did not clearly err in finding that Richey was required to

appeal the non-grievability determination to the grievance program manager and

failed to do so. Cf. Sapp, 623 F.3d at 822-23 (exhaustion is not required where

administrative remedies are rendered “effectively unavailable”).

      AFFIRMED.




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