                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 16 2010

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




                             FOR THE NINTH CIRCUIT



ALBERT HAYES,                                    No. 09-56495

               Plaintiff - Appellant,            D.C. No. 2:08-cv-02755-CJC-FFM

  v.
                                                 MEMORANDUM *
W. ROSSER, Individual, employed as a
correctional officer; et al.,

               Defendants - Appellees,

  and

SULLIVAN, individual and official
capacity (first name unknown),

               Defendant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                            Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS and THOMAS, Circuit Judges.

          *
             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).
      The district court did not clearly err by concluding that Albert Hayes

(“Hayes”) still had administrative remedies available to him once he received a

copy of the first-level response to his grievance. See Cal. Code Regs. tit. 15

§ 3085(b). Accordingly, dismissal of his action for failure to exhaust

administrative remedies was proper. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(“proper exhaustion” under 42 U.S.C. § 1997e(a) is mandatory and requires

adherence to administrative procedural rules); see also Wyatt v. Terhune, 315 F.3d

1108, 1120 (9th Cir. 2003) (the proper remedy for non-exhaustion is dismissal

without prejudice).

      The district court did not abuse its discretion by denying Hayes’s post-

judgment motion to correct the docket. See Sch. Dist. No. 1J, Multnomah County,

Or. v. ACandS, Inc., 315 F.3d 1255, 1262-63 (setting forth standard of review and

requirements for reconsideration under Federal Rule of Civil Procedure 60(b)).

      AFFIRMED.




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