John Entler v. Annie Williams

498 F. App'x 740

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2012
• Docket: 11-35599
• Status: Unpublished

Opinion

MEMORANDUM **

Washington state prisoner John Thomas Entler appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging retaliation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust and for clear error any underlying factual findings. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir.2010). We affirm.

The district court properly dismissed Entler’s action because Entler failed to pursue or exhaust his administrative remedies against defendant Annie Williams. See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2878, 165 L.Ed.2d 368 (2006) (requiring proper and timely exhaustion of prisoner claims). The district court did not clearly err in finding that Entler failed to establish that he was excused from the exhaustion requirement because he was not impeded from pursuing his administrative remedies. See Sapp, 623 F.3d at 822-23 (exhaustion is not required where administrative remedies are rendered “effectively unavailable”); see also Nunez v. Duncan, 591 F.3d 1217, 1223-26 (9th Cir.2010) (exhaustion may be excused if it was delayed or precluded through no fault of the inmáte’s).

Entler’s contention that defendant is es-topped from asserting the affirmative defense of exhaustion is not supported by the record, and his argument that the district court should have held an evidentiary hearing is unpersuasive.

We do not consider issues that are not supported by argument, including with respect to the denial of Entler’s motion for reconsideration. See Am. Int’l Enters., Inc. v. FDIC, 3 F.3d 1263, 1266 n. 5 (9th Cir.1993).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.