Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Kevin L. Barnhill, Aberdeen, WA, pro se.
Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding.
Before PREGERSON, T.G. NELSON, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Washington state prisoner Kevin L. Barnhill appeals pro se the district court's judgment dismissing without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), his 42 U.S.C. § 1983 action alleging that prison officials and an assistant attorney general for Washington state conspired to transfer him from one prison to another in retaliation for his filing of a civil rights action against them. We have jurisdiction under 28 U.S.C. § 1291. We review de
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novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm on different grounds than those asserted by the district court that are supported in the record. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir.1995).
The district court properly dismissed Barnhill's action because Barnhill conceded that he failed to exhaust prison administrative remedies on the face of his complaint. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738-40, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (requiring exhaustion regardless of whether the relief sought is available through the administrative grievance process); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003) (indicating that sua sponte dismissal may be appropriate where the record is clear that prisoner conceded nonexhaustion).
AFFIRMED.