                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 22 2013

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




                             FOR THE NINTH CIRCUIT



TONY EDWARD POWELL,                              No. 11-17551

               Plaintiff - Appellant,            D.C. No. 1:08-cv-01443-SMM

  v.
                                                 MEMORANDUM *
D. SMITH, Warden; McFADDEN,
Regional Director,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Eastern District of California
                   Stephen M. McNamee, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Federal prisoner Tony Edward Powell appeals pro se from the district

court’s judgment dismissing his action brought under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that


          *
             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).
defendants subjected him to inhumane living conditions during a prison lockdown.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for

failure to exhaust administrative remedies, and for clear error the district court’s

underlying factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th

Cir. 2003). We affirm.

       The district court properly dismissed Powell’s action because Powell did not

timely exhaust prison grievance procedures concerning his claim. See Woodford v.

Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be done in a

timely manner consistent with prison policies); McKinney v. Carey, 311 F.3d 1198,

1199 (9th Cir. 2002) (per curiam) (a prisoner must exhaust available administrative

remedies before filing a complaint; exhaustion during the course of litigation is not

sufficient).

       Powell’s motion for leave to file supplemental materials, filed on March 22,

2013, is denied.

       AFFIRMED.




                                           2                                     11-17551
