Larry Wimberly v. COUNTY OF SACRAMENTO, Political Subdivision of the State of California;

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NOT FOR PUBLICATION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
LARRY WIMBERLY,
Plaintiff - Appellant,
v.
COUNTY OF SACRAMENTO, Political
Subdivision of the State of California; et
al.,
Defendants - Appellees.
No. 09-15706
D.C. No. 2:06-CV-00289-JAM-
GGH
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
FILED
MAR 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

PDM/Research 09-15706 2
Larry Wimberly, a 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, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.
Wimberly waived his right to challenge the district court’s factual findings
concerning exhaustion because he failed to object to the magistrate judge’s report.
See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (holding that failure to
object to a magistrate judge’s recommendation waives all objections to the
magistrate judge’s findings of fact, but does not ordinarily waive objections to
purely legal conclusions). However, contrary to appellees’ contention, Wimberly
may challenge the district court’s legal conclusions. See id.
The district court properly dismissed the action because Wimberly did not
complete the jail grievance process prior to filing suit. See Booth v. Churner, 532
U.S. 731, 741 (2001) (stating that exhaustion is mandatory under § 1997e(a)); see
also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for a failure to
exhaust nonjudicial remedies, the court may look beyond the pleadings and decide
disputed issues of fact.”).

-- 2 of 3 --

PDM/Research 09-15706 3
We construe the judgment as a dismissal without prejudice. See Wyatt, 315
F.3d at 1120 (providing that dismissals for failure to exhaust administrative
remedies are without prejudice).
Wimberly’s remaining contentions are unpersuasive.
AFFIRMED.

-- 3 of 3 --