RAYNE DEE WELLS, Jr. v. JAMES McLEAN, Clallam Bay Corrections Center Corrections Officer

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NOT FOR PUBLICATION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
RAYNE DEE WELLS, Jr.,
Plaintiff - Appellant,
v.
JAMES McLEAN, Clallam Bay
Corrections Center Corrections Officer,
Defendant - Appellee.
No. 10-35663
D.C. No. 3:10-cv-05097-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted September 27, 2011**
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Rayne Dee Wells, Jr., a Washington state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
FILED
OCT 07 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-35663 2
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal for failure to exhaust, and for clear error its factual
determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We
affirm in part, vacate in part, and remand.
The district court properly dismissed the action because Wells failed to
exhaust administrative remedies prior to filing suit. See Woodford v. Ngo, 548
U.S. 81, 93-95 (2006) (concluding that “proper exhaustion” is mandatory and
requires adherence to administrative procedural rules). However, we vacate the
judgment and remand for the limited purpose of considering whether to enter a
dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (dismissals for failure to
exhaust administrative remedies are without prejudice).
Wells’s remaining contentions are unpersuasive.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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