James Arthur Battle v. Debra Holly

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).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ARTHUR BATTLE,
Plaintiff - Appellant,
v.
DEBRA HOLLY,
Defendant - Appellee.
No. 09-35434
D.C. No. 2:08-cv-00642-RAJ
MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
James Arthur Battle, a Washington state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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exhaust administrative remedies pursuant to the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal for failure to exhaust, and
for clear error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117
(9th Cir. 2003), and we affirm.
The district court properly dismissed the action because Battle did not
exhaust available administrative remedies before filing his federal action. See
Booth v. Churner, 532 U.S. 731, 739-41 (2001) (holding that exhaustion of
available administrative remedies is mandatory under the PLRA regardless of the
relief offered through administrative procedures); see also 42 U.S.C. § 1997e(a)
(allowing no prisoner to bring an action concerning prison conditions under § 1983
until available administrative remedies are exhausted). Battle’s arguments in
opposition to the motion to dismiss were insufficient to defeat the motion. See
Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for a failure to
exhaust nonjudicial remedies, the court may look beyond the pleadings and decide
disputed issues of fact.”).
Battle’s remaining contentions are unpersuasive.
We will not consider documents presented for the first time on appeal.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (explaining that

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documents not presented to the district court are not part of the record on appeal).
Battle’s June 22, 2009 motion is construed as a motion to file a supplemental
brief, and is granted.
AFFIRMED.

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