# Darryl Aggers v. Tyson

> Court of Appeals for the Ninth Circuit · September 25, 2012 · 481 F. App'x 404

URL: https://www.frixlaw.com/law-library/cases/809205

## Case

- **Full name:** Darryl Keith AGGERS, Plaintiff-Appellant, v. TYSON, Kern Valley State Prison, Captain; Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 25, 2012
- **Citations:** 481 F. App'x 404
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Wardlaw, Clifton, Smith
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 25 2012

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

DARRYL KEITH AGGERS, No. 11-17138

Plaintiff - Appellant, D.C. No. 1:07-cv-01701-AWI-JLT

v.
MEMORANDUM *
TYSON, Kern Valley State Prison,
Captain; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding

Submitted September 10, 2012 **

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Darryl Keith Aggers, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to

exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.

*
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).
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.

The district court properly dismissed the action without prejudice because

Aggers conceded that he did not exhaust administrative remedies, and failed to

provide sufficient evidence to show that administrative remedies were effectively

unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper

exhaustion” is mandatory and requires adherence to administrative procedural

rules); see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is

not required where administrative remedies are “effectively unavailable”).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

AFFIRMED.

2 11-17138

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/809205. Public record. Not legal advice.