                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 13 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERT ALAN ANTON,                               No. 10-16618

               Plaintiff - Appellant,            D.C. No. 1:05-cv-00412-OWW-
                                                 WMW
  v.

MENDEZ; et al.,                                  MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Robert Alan Anton, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations

of his constitutional rights in connection with the use of force during an inmate

fight. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

          *
             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).
district court’s dismissal for failure to exhaust, and for clear error its factual

determinations. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). We

affirm.

       The district court properly dismissed Anton’s excessive force claim for

failure to exhaust administrative remedies because Mendez offered evidence

showing that Anton did not properly file any grievances alleging excessive force

before initiating this action, and Anton did not effectively rebut this evidence. See

Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (“[D]efendants have the

burden of . . . proving the absence of exhaustion[,]” and “[i]n deciding a motion to

dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the

pleadings and decide disputed facts.”); McKinney v. Carey, 311 F.3d 1198, 1199

(9th Cir. 2002) (per curiam) (requiring exhaustion prior to filing suit).

       The district court did not abuse its discretion in denying Anton’s motions for

reconsideration because Anton set forth no basis for reconsideration. See Sch.

Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.

1993) (setting forth standard of review and grounds for reconsideration).

       Anton’s remaining contentions are unpersuasive.

       Anton’s request for discovery or, in the alternative, to supplement the record

is denied. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.


                                             2                                       10-16618
1988) (“Papers not filed with the district court or admitted into evidence by that

court are not part of the clerk’s record and cannot be part of the record on

appeal.”).

      AFFIRMED.




                                           3                                   10-16618
