Clayburn v. Scribner

MEMORANDUM ** California state prisoner Ricky Berdare Clayburn appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291 . Reviewing de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), we affirm. Before the district court, Clayburn stated that he had “started the appeal process” and requested a stay of his action so that he could complete the administrative process. A prisoner, however, must exhaust available administrative remedies prior to filing an action. See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir.2002) (per curiam). Accordingly, the district court properly dismissed Clayburn’s action for failure to exhaust. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies.”). We construe the district court’s order dismissing the action to be without prejudice to refiling upon exhaustion of administrative remedies. See id. 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 9th Cir. R. 36-3.