John Thomas Entler v. ANNIE WILLIAMS, Corrections Program Manager

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN THOMAS ENTLER,
Plaintiff - Appellant,
v.
ANNIE WILLIAMS, Corrections Program
Manager,
Defendant - Appellee.
No. 11-35599
D.C. No. 2:10-cv-01827-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted November 13, 2012**
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Washington state prisoner John Thomas Entler appeals pro se from the
district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action
alleging retaliation. We have jurisdiction under 28 U.S.C. § 1291. We review de
FILED
NOV 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-35599 2
novo a dismissal for failure to exhaust and for clear error any underlying factual
findings. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010). We affirm.
The district court properly dismissed Entler’s action because Entler failed to
pursue or exhaust his administrative remedies against defendant Annie Williams.
See Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (requiring proper and timely
exhaustion of prisoner claims). The district court did not clearly err in finding that
Entler failed to establish that he was excused from the exhaustion requirement
because he was not impeded from pursuing his administrative remedies. See Sapp,
623 F.3d at 822-23 (exhaustion is not required where administrative remedies are
rendered “effectively unavailable”); see also Nunez v. Duncan, 591 F.3d 1217,
1223-26 (9th Cir. 2010) (exhaustion may be excused if it was delayed or precluded
through no fault of the inmate’s).
Entler’s contention that defendant is estopped from asserting the affirmative
defense of exhaustion is not supported by the record, and his argument that the
district court should have held an evidentiary hearing is unpersuasive.
We do not consider issues that are not supported by argument, including
with respect to the denial of Entler’s motion for reconsideration. See Am. Int’l
Enters., Inc. v. FDIC, 3 F.3d 1263, 1266 n.5 (9th Cir. 1993).
AFFIRMED.

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