                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 21 2014

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



                             FOR THE NINTH CIRCUIT


VERNON WAYNE McNEAL, JR.,                        No. 12-17196

               Plaintiff - Appellant,            D.C. No. 5:11-cv-02798-EJD

  v.
                                                 MEMORANDUM*
J. RUSH; O. SPENCER,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                            Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       California state prisoner Vernon Wayne McNeal, Jr., appeals pro se from the

district court’s judgment dismissing for failure to exhaust administrative remedies

his 42 U.S.C. § 1983 action alleging Eighth Amendment claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Sapp v. Kimbrell, 623

          *
             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).
F.3d 813, 821 (9th Cir. 2010), and we affirm.

      The district court properly concluded that McNeal failed to exhaust his

administrative remedies, and that McNeal did not demonstrate that such remedies

were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95

(2006) (holding that “proper exhaustion” is mandatory and requires adherence to

administrative procedural rules); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.

2010) (where defendant establishes failure to exhaust, burden shifts to plaintiff to

prove that administrative remedies were unavailable to him).

      AFFIRMED.




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