Sky-Steven Thomas Miller v. Perry Bartram;

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NOT FOR PUBLICATION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
SKY-STEVEN THOMAS MILLER,
Plaintiff - Appellant,
v.
PERRY BARTRAM; et al.,
Defendants - Appellees.
No. 10-35494
D.C. No. 3:09-cv-05094-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Washington state prisoner Sky-Steven Thomas Miller appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to serious medical needs. We have jurisdiction under 28
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-35494 2
U.S.C. § 1291. We review de novo a dismissal for failure to exhaust
administrative remedies, and for clear error any underlying factual determination.
Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010). We affirm.
The district court properly dismissed without prejudice Miller’s deliberate
indifference action regarding defendants’ alleged failure to provide prescribed
footwear and custom orthotic inserts because Miller failed to exhaust his
administrative remedies. See id. (prisoners must exhaust administrative remedies
under applicable procedures and deadlines). The district court did not clearly err in
finding that administrative remedies remained available to Miller, but that he did
not exhaust his grievances through the necessary levels. Cf. id. at 822-23
(exhaustion is not required if administrative remedies are rendered “effectively
unavailable”).
The district court did not abuse its discretion in denying Miller’s motion to
compel further discovery because Miller failed to establish that defendants altered
any documents or produced any altered documents in response to his discovery
request. See Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004)
(setting forth standard of review for discovery motions).
AFFIRMED.

-- 2 of 2 --