Michael J. Smith v. BRIAN WILLIAMS, Warden; R. TATE

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NOT FOR PUBLICATION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
MICHAEL J. SMITH,
Plaintiff - Appellant,
v.
BRIAN WILLIAMS, Warden; R. TATE,
Defendants - Appellees.
No. 11-16919
D.C. No. 2:10-cv-00632-JCM-
PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 8, 2012**
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Former Nevada state prisoner Michael J. Smith 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
AUG 15 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-16919 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. Wyatt v. Terhune, 315 F.3d 1108,
1117 (9th Cir. 2003). We affirm.
Smith contends that he is excused from exhausting his administrative
remedies because he was released from prison before he filed his amended
complaint. We do not consider this argument because Smith raises it for the first
time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam).
AFFIRMED.

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