Eriberto Penaloza v. Dr. Attygalla;

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NOT FOR PUBLICATION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
ERIBERTO PENALOZA,
Plaintiff - Appellant,
v.
DR. ATTYGALLA; et al.,
Defendants - Appellees.
No. 11-55426
D.C. No. 2:09-cv-07347-GHK-RZ
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted November 13, 2012**
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
California state prisoner Eriberto Penaloza appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his medical needs following an assault by another inmate. We have
FILED
NOV 29 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-55426 2
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal for failure to exhaust administrative remedies. Wyatt v. Terhune, 315
F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly dismissed Penaloza’s action without prejudice
because Penaloza failed to exhaust administrative remedies before filing suit and
he failed to provide sufficient evidence to show that administrative remedies were
effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95
(2006) (holding that “proper exhaustion” is mandatory and requires adherence to
administrative procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.
2010) (exhaustion is not required where administrative remedies are “effectively
unavailable”); see also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to
dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the
pleadings and decide disputed issues of fact.”).
AFFIRMED.

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