Eriberto Penaloza v. Dr. Attygalla

MEMORANDUM

California state prisoner Eriberto Pena-loza appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs following an assault by another inmate. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s dismissal for failure to exhaust administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm.

The district court properly dismissed Penaloza’s action without prejudice because Penaloza failed to exhaust administrative remedies before filing suit and he 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 , 126 S.Ct. 2378 , 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” is mandatory and requires adherence to administrative procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.2010) (exhaustion is not required where administrative remedies are “effectively unavailable”); see also Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the…