Chester Ray Wiseman v. ROBERT J. HERNANDEZ, Warden;

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NOT FOR PUBLICATION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
CHESTER RAY WISEMAN,
Plaintiff - Appellant,
v.
ROBERT J. HERNANDEZ, Warden; et
al.,
Defendants - Appellees.
No. 11-55599
D.C. No. 3:08-cv-01272-LAB-
NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
California state prisoner Chester Ray Wiseman appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that
defendants violated his Eighth Amendment rights in connection with the denial of
FILED
JAN 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-55599 2
outdoor exercise. We have jurisdiction under 28 U.S.C. § 1291. We review de
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 Wiseman’s action without prejudice
because Wiseman failed to exhaust his administrative remedies. 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 Wiseman
failed to pursue all levels of administrative grievances available to him. Cf. Sapp,
623 F.3d at 822-23 (exhaustion is not required where administrative remedies are
rendered “effectively unavailable”).
AFFIRMED.

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