
    Jesse CARTER, Jr., PlaintiffAppellant, v. CO BICE, sued in official capacity, aka Viallabos-Bice, Defendant—Appellee.
    No. 02-16598.
    D.C. No. CV-00-00251-JAT.
    United States Court of Appeals, Ninth Circuit.
    Submitted April 7, 2003.
    
    Decided April 15, 2003.
    Before RYMER, KLEINFELD, and FISHER, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument and denies Carter’s request for oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Jesse Carter, Jr., formerly an Arizona state prisoner, appeals pro se the district court’s summary judgment in his action alleging that Correction Officer Bice was deliberately indifferent to his safety during transport to a court hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam). We affirm.

The district court properly dismissed the action because Carter failed to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (holding that proper pretrial motion for considering exhaustion is one which allows presentation of factual evidence). However, the entry of judgment should be without prejudice. See id. at 1120. It is so ordered.

The district court correctly concluded that Carter did not present exceptional circumstances warranting appointment of counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).

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.
     