McNeal v. Rush

MEMORANDUM ** California state prisoner Vernon Wayne McNeal, Jr., appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action alleging Eighth Amendment claims. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir.2010), and we affirm. The district court properly concluded that McNeal failed to exhaust his administrative remedies, and that McNeal did not demonstrate that such’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); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.2010) (where defendant establishes failure to exhaust, burden shifts to plaintiff to prove that administrative remedies were unavailable to him). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.