Opinion
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:11-cv-00804-DCB. David C. Bury, District Judge, Presiding.
GREGORY MACDONALD BERRY, Plaintiff - Appellant, Pro se, Tucson, AZ.
For A. MENDES, Special Investigative Agent, A. BASSETT, EA BAEZ, Correctional Lt., UNKNOWN ACOSTA, Defendants - Appellees: Angela Walker Woolridge, Assistant U.S. Attorney, USTU- Office of the U.S. Attorney, Tucson, AZ.
Before: ALARCÓN, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) alleging Eighth Amendment claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of an 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, 122 S.Ct. 983, 152 L.Ed.2d 12 (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.