Anthony Albert Jimenez v. FRANK CARHUNAGAN and SANDRA L. LA FON, substituted for EL LA FON

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 and denies Jimenez’s request for oral argument. See Fed. R.
App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ALBERT JIMENEZ,
Plaintiff - Appellant,
v.
FRANK CARHUNAGAN and SANDRA
L. LA FON, substituted for EL LA FON,
Defendants - Appellees.
No. 08-55420
D.C. No. 2:03-cv-05374-DDP-SH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted October 19, 2010**
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Anthony Albert Jimenez, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
FILED
OCT 29 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

08-55420 2
exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s dismissal based on the failure to exhaust and review for
clear error its factual findings. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,
1059 (9th Cir. 2007). We affirm.
As a preliminary matter, we reject Appellees’ contention that we lack
jurisdiction because Jimenez’s notice of appeal was untimely. See Solis v. County
of Los Angeles, 514 F.3d 946, 951 (9th Cir. 2008) (explaining timeliness of appeal
where judgment was not set forth on separate document as required by Fed. R. Civ.
P. 58(a)); see also Fed. R. App. P. 4(a)(7).
The district court properly dismissed the action because Jimenez did not
properly exhaust the prison grievance process prior to filing suit. See Woodford v.
Ngo, 548 U.S. 81, 93-95 (2006) (“proper exhaustion” under § 1997e(a) is
mandatory and requires adherence to administrative procedural rules); see also
Booth v. Churner, 532 U.S. 731, 734 (2001) (inmate seeking only money damages
must complete any prison administrative process capable of addressing inmate’s
complaint and providing some form of relief, even if the process does not provide
for the recovery of monetary relief). We construe the dismissal of Jimenez’s
claims to be without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th

-- 2 of 3 --

08-55420 3
Cir. 2003) (dismissals for failure to exhaust administrative remedies are without
prejudice).
We do not consider arguments raised for the first time on appeal. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.

-- 3 of 3 --