Ricky Rivera v. DAVE DAVEY, Warden; M. ROBICHEAUX; ED CRIANE; S.M.V. CHAPOLEUN

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY RIVERA,
Plaintiff-Appellant,
v.
DAVE DAVEY, Warden; M.
ROBICHEAUX; ED CRIANE; S.M.V.
CHAPOLEUN,
Defendants-Appellees.
No. 21-15853
D.C. No. 1:16-cv-01817-AWI-BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
California state prisoner Ricky Rivera appeals pro se from the district court’s
judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C.
§ 1983 action alleging violation of his free-exercise rights. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-15853
under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014) (legal rulings on exhaustion); Thompson v. Paul, 547 F.3d
1055, 1058 (9th Cir. 2008) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly dismissed Rivera’s action because it was clear
from the face of Rivera’s operative complaint that Rivera failed to exhaust
available administrative remedies prior to filing suit. See Woodford v. Ngo, 548
U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means
using all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” (citation and internal quotation marks
omitted)); Albino, 747 F.3d at 1169 (where a failure to exhaust is clear from the
face of the complaint, a district court may dismiss for failure to state a claim).
The motion to file a late reply brief is denied as unnecessary. The reply
brief has been filed and considered.
AFFIRMED.

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