Tony Edward Powell v. D. SMITH, Warden; McFADDEN, Regional Director

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY EDWARD POWELL,
Plaintiff - Appellant,
v.
D. SMITH, Warden; McFADDEN,
Regional Director,
Defendants - Appellees.
No. 11-17551
D.C. No. 1:08-cv-01443-SMM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stephen M. McNamee, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Federal prisoner Tony Edward Powell appeals pro se from the district
court’s judgment dismissing his action brought under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that
FILED
MAY 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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defendants subjected him to inhumane living conditions during a prison lockdown.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to exhaust administrative remedies, and for clear error the district court’s
underlying factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th
Cir. 2003). We affirm.
The district court properly dismissed Powell’s action because Powell did not
timely exhaust prison grievance procedures concerning his claim. See Woodford v.
Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be done in a
timely manner consistent with prison policies); McKinney v. Carey, 311 F.3d 1198,
1199 (9th Cir. 2002) (per curiam) (a prisoner must exhaust available administrative
remedies before filing a complaint; exhaustion during the course of litigation is not
sufficient).
Powell’s motion for leave to file supplemental materials, filed on March 22,
2013, is denied.
AFFIRMED.

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