GREGORY MacDONALD BERRY v. Craig Apker;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY MacDONALD BERRY,
Plaintiff - Appellant,
v.
CRAIG APKER; et al.,
Defendants - Appellees.
No. 13-15315
D.C. No. 4:11-cv-00804-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Federal prisoner Gregory MacDonald Berry appeals pro se from the district
court’s judgment dismissing his action under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971) alleging Eighth Amendment claims. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of an
FILED
MAR 4 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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action for failure to exhaust administrative remedies, Sapp v. Kimbrell, 623 F.3d
813, 821 (9th Cir. 2010), and we affirm.
The district court properly dismissed Berry’s action because Berry failed to
exhaust his administrative remedies through all available levels and in a timely
manner under applicable regulations, and failed to establish either that
administrative remedies were unavailable or that he was otherwise excused from
exhausting. See Porter v. Nussle, 534 U.S. 516, 524, 524 (2002) (exhaustion
requirement of the Prison Litigation Reform Act (“PLRA”) applies to federal
prisoners suing under Bivens); Sapp, 623 F.3d at 821-24 (stating that, under the
PLRA, proper exhaustion requires compliance with the agency’s deadlines and
procedural rules concerning grievances, and describing limited circumstances
under which administrative remedies are deemed unavailable or exhaustion is
excused).
Berry’s contentions that the alleged merits of his claims, and his exhaustion
of the administrative claims process under the separate statutory scheme of the
Federal Tort Claims Act, excuse or otherwise satisfy the exhaustion of
administrative remedies under the PLRA are unpersuasive.
AFFIRMED.
13-15315 2

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