Davis v. Kissenger

81 F. App'x 929

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2003
• Docket: No. 03-15660
• Status: Published

Opinion

MEMORANDUM

**

Charles T. Davis, a California state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s determination that a prisoner failed to exhaust administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), cert. denied sub nom. Alameida v. Wyatt, — U.S. —, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003), and we affirm.

The district court properly dismissed Davis’ action because he failed to exhaust administrative remedies prior to filing a federal action. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam).

Davis contends that 28 U.S.C. § 1915(g) allows an exception to the exhaustion requirement when the complaint alleges the imminent possibility of serious physical injury or death. Even if such an exception exists after Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), Davis’ allegations are neither severe nor specific enough to fall within the exception.

We deny Davis’ April 30, 2003 motion to augment the record on appeal.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.