                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 21 2013

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




                             FOR THE NINTH CIRCUIT



MARTIN TORRES VAZQUEZ,                           No. 12-57018

               Plaintiff - Appellant,            D.C. No. 3:11-cv-02352-IEG-PCL

  v.
                                                 MEMORANDUM *
B. KOEN, Captain; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Irma E. Gonzalez, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       California state prisoner Martin Torres Vazquez appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations

of his Eighth and Fourteenth Amendment rights. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal for failure to

          *
             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).
exhaust administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.

2003), and we affirm.

      The district court properly dismissed Vazquez’s action without prejudice

because Vazquez failed to exhaust administrative remedies before bringing suit and

failed to demonstrate that any of his appeals were improperly screened. See

Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” is

mandatory and requires adherence to administrative procedural rules); Sapp v.

Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (concluding that administrative

remedies are “available” where administrative appeals were screened for proper

reasons and that an inmate who failed to follow specific instructions on how to

appeal had no reasonable belief that administrative remedies were effectively

unavailable).

      The district court did not abuse its discretion by denying Vazquez’s motion

for a temporary restraining order because Vazquez failed to demonstrate a strong

likelihood of success on the merits. See Earth Island Inst. v. U.S. Forest Serv., 351

F.3d 1291, 1298 (9th Cir. 2003) (setting forth standard of review).

      The district court did not abuse its discretion in denying Vazquez’s request

for appointment of counsel because Vazquez failed to demonstrate exceptional




                                          2                                     12-57018
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and the exceptional circumstances requirement).

      The district court correctly noted that Vazquez failed to name Payne as a

defendant in his amended complaint.

      Vazquez’s other arguments were raised for the first time on appeal and we

do not consider them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




                                         3                                   12-57018
