                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 4 2014

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



                             FOR THE NINTH CIRCUIT


GREGORY MacDONALD BERRY,                         No. 13-15315

               Plaintiff - Appellant,            D.C. No. 4:11-cv-00804-DCB

  v.
                                                 MEMORANDUM*
CRAIG APKER; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                            Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Federal prisoner Gregory MacDonald Berry appeals pro se from the district

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

Narcotics Agents, 403 U.S. 388 (1971) alleging Eighth Amendment claims. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of an

          *
             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).
action for failure to exhaust administrative remedies, Sapp v. Kimbrell, 623 F.3d

813, 821 (9th Cir. 2010), and we affirm.

      The district court properly dismissed Berry’s action because Berry failed to

exhaust his administrative remedies through all available levels and in a timely

manner under applicable regulations, and failed to establish either that

administrative remedies were unavailable or that he was otherwise excused from

exhausting. See Porter v. Nussle, 534 U.S. 516, 524, 524 (2002) (exhaustion

requirement of the Prison Litigation Reform Act (“PLRA”) applies to federal

prisoners suing under Bivens); Sapp, 623 F.3d at 821-24 (stating that, under the

PLRA, proper exhaustion requires compliance with the agency’s deadlines and

procedural rules concerning grievances, and describing limited circumstances

under which administrative remedies are deemed unavailable or exhaustion is

excused).

      Berry’s contentions that the alleged merits of his claims, and his exhaustion

of the administrative claims process under the separate statutory scheme of the

Federal Tort Claims Act, excuse or otherwise satisfy the exhaustion of

administrative remedies under the PLRA are unpersuasive.

      AFFIRMED.




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