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Aggers v. Tyson

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Sep 25, 2012
481 F. App'x 404 (9th Cir. 2012)

Opinion

No. 11-17138 D.C. No. 1:07-cv-01701-AWI-JLT

09-25-2012

DARRYL KEITH AGGERS, Plaintiff - Appellant, v. TYSON, Kern Valley State Prison, Captain; et al., Defendants - Appellees.


NOT FOR PUBLICATION


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief Judge, Presiding

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Darryl Keith Aggers, 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. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.

The district court properly dismissed the action without prejudice because Aggers conceded that he did not exhaust administrative remedies, and failed to provide sufficient evidence to show that administrative remedies were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) ("proper exhaustion" is mandatory and requires adherence to administrative procedural rules); see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not required where administrative remedies are "effectively unavailable").

We do not consider 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).

AFFIRMED.


Summaries of

Aggers v. Tyson

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Sep 25, 2012
481 F. App'x 404 (9th Cir. 2012)
Case details for

Aggers v. Tyson

Case Details

Full title:DARRYL KEITH AGGERS, Plaintiff - Appellant, v. TYSON, Kern Valley State…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Sep 25, 2012

Citations

481 F. App'x 404 (9th Cir. 2012)