Chester Ray Wiseman v. JOHN SEBOK, Correctional Sergeant;

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NOT FOR PUBLICATION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.
JOHN SEBOK, Correctional Sergeant; et
al.,
Defendants - Appellees.
No. 12-56245
D.C. No. 2:10-cv-04710-DSF-
AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 15, 2013**
Before: FISHER, GOULD, and BYBEE, 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 transferred him in retaliation for his legal filings. We have jurisdiction
FILED
OCT 23 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-56245 2
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust
administrative remedies, and for clear error the district court’s underlying factual
determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We
affirm.
The district court properly dismissed Wiseman’s action without prejudice
because Wiseman did not exhaust prison grievance procedures concerning his
claim and failed to show that exhaustion was effectively unavailable. See
Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be
done in a timely manner consistent with prison policies); Wyatt, 315 F.3d at 1120
(dismissal for failure to exhaust is without prejudice); cf. Nunez v. Duncan, 591
F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s failure to exhaust where
prisoner is prevented from doing so).
AFFIRMED.

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