Francois Poitier Givens v. MATTHEW CATE , Secretary, California Department of Corrections and Rehabilitation;

Matthew Cate is substituted for his predecessor, James Tilton, as*
Secretary, pursuant to Fed. R. App. P. 43(c)(2).
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).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCOIS POITIER GIVENS,
Plaintiff - Appellant,
v.
MATTHEW CATE , Secretary, California*
Department of Corrections and
Rehabilitation; et al.,
Defendants - Appellees.
No. 08-16843
D.C. No. 3:07-cv-03575-MHP
MEMORANDUM **
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Submitted December 15, 2009***
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
FILED
JAN 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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PDM/Research 08-16843 2
Francois Poitier Givens, a former California 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 pursuant to the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 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), review for clear error its factual
determinations, id., and review for an abuse of discretion its denial of leave to
amend, Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981), and its
denial of a motion for reconsideration, Minn. Mut. Life Ins. Co. v. Ensley, 174 F.3d
977, 987 (9th Cir. 1999). We affirm.
The district court properly dismissed the action because Givens did not
complete the administrative appeals process in accordance with the prison’s
procedural rules. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (explaining that
“proper exhaustion” under § 1997e(a) requires inmates to complete “all steps that
the agency holds out” and to follow administrative procedural rules); see also Cal.
Code Regs. tit. 15, § 3084.5(a).
The district court did not abuse its discretion in denying Givens’s motion for
leave to file an amended complaint, because further amendment would have been
futile in light of Givens’s failure to exhaust administrative remedies. Cf. Caswell

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PDM/Research 08-16843 3
v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (affirming district court’s order
denying leave to amend habeas petition where petitioner’s failure to exhaust state
remedies rendered amendment futile).
The district court did not abuse its discretion in denying Givens’s motion to
reconsider because he did not present newly discovered evidence, indicate a
change in controlling law, or demonstrate that the district court committed clear
error or made a manifestly unjust decision. See School Dist. No. 1J, Multnomah
County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (setting forth
elements for reconsideration under federal rules); see also N. Dist. of Cal. Civil
Local Rule 7-9 (regarding reconsideration).
Because we will not consider evidence presented for the first time on appeal,
Givens’s request to lodge a document is denied. See United States v. Elias, 921
F.2d 870, 874 (9th Cir. 1990) (explaining that documents not presented to the
district court are not part of the record on appeal).
Givens’s remaining contentions are unpersuasive.
AFFIRMED.

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