Rex CHAPPELL, Plaintiff-Appellant, v. K.M. CHASTAIN, Warden; et al., Defendants-Appellees, and M. Martel, Correctional Captain, Defendant, 135 F. App'x 914

MEMORANDUM California prisoner Rex Chappell appeals pro se the district court’s dismissal of his action without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review for clear error the district court’s findings of fact and review de novo its application of substantive law. Ritza v. Int’l Longshoremen’s and Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir.1988) (per curiam). We affirm.

The district court did not clearly err in finding that Chappell failed to exhaust available administrative remedies prior to filing this action. Chappell’s contention that he exhausted prior to filing his amended complaint is unavailing. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam). The district court properly concluded that defendants did not waive the issue of exhaustion because defendants raised this affirmative defense in their answer. See Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.2000) (“The inclusion of the defense in an answer is sufficient to preserve the defense.”). 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 Ninth Circuit Rule 36-3.