Patrick Otis Nelson v. MURPHY, R.N., data entry medical personnel; COONEY, Correctional 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NOT FOR PUBLICATION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
PATRICK OTIS NELSON,
Plaintiff - Appellant,
v.
MURPHY, R.N., data entry medical
personnel; COONEY, Correctional
Officer,
Defendants - Appellees.
No. 10-17184
D.C. No. 2:08-cv-02481-FCD-
KJM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Patrick Otis Nelson, 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 under the Prison Litigation Reform Act, 42 U.S.C.
FILED
JAN 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-15545 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.
The district court properly dismissed the action without prejudice because
Nelson failed to exhaust administrative remedies prior to filing suit. See Woodford
v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” is mandatory
and requires adherence to administrative procedural rules); Wyatt, 315 F.3d at 1120
(“A prisoner’s concession to nonexhaustion is a valid ground for dismissal . . . .”);
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring
exhaustion of administrative remedies prior to filing suit).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Appellees’ Request for Judicial Notice filed on March 21, 2011 is denied.
AFFIRMED.

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