Jimenez v. Alfaro

59 F. App'x 227

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2003
• Docket: No. 02-16521; D.C. No. CV-97-05049-OWW
• Status: Published

Opinion

MEMORANDUM

**

Rafael Oswaldo Jimenez, a California state prisoner, appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action, alleging Eighth Amendment violations, for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we affirm.

The district court properly dismissed the action without prejudice because Jimenez’s proffered reasons for failing to pursue his grievances through the final level of review did not excuse his noncompliance with the exhaustion requirement under 42 U.S.C. § 1997e(a). See Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (noting that the Court “will not read futility or other exceptions into statutory exhaustion”); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003).

To the extent Jimenez contends that the Supreme Court’s ruling in Booth should not be applied retroactively to his case, the argument lacks merit. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (stating “a rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law”).

AFFIRMED.

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