                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 07 2011

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




                             FOR THE NINTH CIRCUIT



RAYNE DEE WELLS, Jr.,                            No. 10-35663

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05097-RJB

  v.
                                                 MEMORANDUM *
JAMES McLEAN, Clallam Bay
Corrections Center Corrections Officer,

               Defendant - Appellee.



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

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Rayne Dee Wells, Jr., a Washington state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to

exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.


          *
             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).
§ 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 its factual

determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We

affirm in part, vacate in part, and remand.

       The district court properly dismissed the action because Wells failed to

exhaust administrative remedies prior to filing suit. See Woodford v. Ngo, 548

U.S. 81, 93-95 (2006) (concluding that “proper exhaustion” is mandatory and

requires adherence to administrative procedural rules). However, we vacate the

judgment and remand for the limited purpose of considering whether to enter a

dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (dismissals for failure to

exhaust administrative remedies are without prejudice).

       Wells’s remaining contentions are unpersuasive.

       Each party shall bear its own costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.




                                              2                                      10-35663
