Melvin James BLAKE, Plaintiff-Appellant, v. Linda L. MELCHING; et al., Defendants-Appellees, 223 F. App'x 608

MEMORANDUM California state prisoner Melvin James Blake appeals pro se from the district court’s order granting defendants’ Fed. R.Civ.P. 12(

b) motion to dismiss 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. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). We affirm. The district court properly dismissed Blake’s action because Blake did not exhaust administrative remedies prior to filing the action. See 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir.2002) (per curiam).

Contrary to Blake’s contention, the defendants did not waive the issue of exhaustion because they raised this affirmative defense in their answer. See Tahoe-Sierra Pres. 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.”). We are not persuaded by Blake’s remaining contentions. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.