                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 23 2013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. 12-56245

               Plaintiff - Appellant,            D.C. No. 2:10-cv-04710-DSF-
                                                 AJW
  v.

JOHN SEBOK, Correctional Sergeant; et            MEMORANDUM *
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                            Submitted October 15, 2013 **

Before:        FISHER, GOULD, and BYBEE, 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 transferred him in retaliation for his legal filings. We have jurisdiction


          *
             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).
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 Wiseman’s action without prejudice

because Wiseman did not exhaust prison grievance procedures concerning his

claim and failed to show that exhaustion was effectively unavailable. 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); Wyatt, 315 F.3d at 1120

(dismissal for failure to exhaust is without prejudice); cf. Nunez v. Duncan, 591

F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s failure to exhaust where

prisoner is prevented from doing so).

      AFFIRMED.




                                           2                                    12-56245
