Mario A. Williams v. Peel;

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NOT FOR PUBLICATION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
MARIO A. WILLIAMS,
Plaintiff - Appellant,
v.
PEEL; et al.,
Defendants - Appellees.
No. 11-17347
D.C. No. 2:09-cv-02665-GEB-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted August 8, 2012**
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Mario A. Williams, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his back injuries and related pain. We have jurisdiction under 28
FILED
AUG 16 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-17347 2
U.S.C. § 1291. We review de novo the district court’s dismissal for failure to
exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly dismissed the action, without prejudice, because
Williams failed timely to exhaust administrative remedies prior to filing suit. See
Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is
mandatory and requires adherence to administrative procedural rules); Wyatt, 315
F.3d at 1119-20 (“[D]efendants have the burden of . . . proving the absence of
exhaustion[,]” and “[i]n deciding a motion to dismiss for failure to exhaust
nonjudicial remedies, the court may look beyond the pleadings and decide disputed
issues of fact.”).
The district court properly denied Williams’ motion for summary judgment
as moot in light of its dismissal for failure to exhaust administrative remedies.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
We do not consider any documents attached to Williams’ briefs that are not
part of the district court record. See Kirshner v. Uniden Corp. of Am., 842 F.2d
1074, 1077 (9th Cir. 1988).
AFFIRMED.

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