FILED

NOT FOR PUBLICATION AUG 21 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERNON WAYNE McNEAL, JR., No. 12-17196

Plaintiff - Appellant, D.C. No. 5:11-cv-02798-EJD

v.

MEMORANDUM*

J. RUSH; O. SPENCER,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted August 13, 2014**

Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

California state prisoner Vernon Wayne McNeal, Jr., appeals pro se from the

district court’s judgment dismissing for failure to exhaust administrative remedies

his 42 U.S.C. § 1983 action alleging Eighth Amendment claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Sapp v. Kimbrell, 623

* 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). F.3d 813, 821 (9th Cir. 2010), and we affirm.

The district court properly concluded that McNeal failed to exhaust his

administrative remedies, and that McNeal did not demonstrate that such remedies

were effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95

(2006) (holding that “proper exhaustion” is mandatory and requires adherence to

administrative procedural rules); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.

2010) (where defendant establishes failure to exhaust, burden shifts to plaintiff to

prove that administrative remedies were unavailable to him).

AFFIRMED.

2 12-17196