De La Motte v. Menifee

40 F. App'x 639

• Court: Court of Appeals for the Second Circuit
• Decided: July 23, 2002
• Docket: No. 01-0313
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and is AFFIRMED with modification.

Plaintiff Glenn De La Motte, incarcerated and pro se, appeals from an November 9, 2001, order of the District Court dismissing, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), De La Motte’s Bivens claims against prison officials on the ground that De La Motte failed to exhaust his administrative remedies. The District Court adopted the Report and Recommendation of Magistrate Judge George A. Yanthis dated October 3, 2001, to the extent it recommended dismissal of plaintiffs claims, but overruled that report to the extent it recommended dismissal without prejudice. The District Court held that because “[rjecourse to the administrative remedies [is] now time barred,” dismissal with prejudice was appropriate. See De La Motte v. Menifee, No. 00 Civ. 0555, slip op., at 2 (S.D.N.Y. Nov. 9, 2001).

We agree that dismissal for failure to exhaust administrative remedies was appropriate, for substantially the reasons stated by Magistrate Judge Yanthis in his October 3, 2001, Report and Recommendation. We hold, however, that the District Court erred in dismissing the claims with prejudice.

In Morales v. Mackalm, 278 F.3d 126 (2d Cir.2002), we explicitly held that a dismissal pursuant to the PLRA for failure to exhaust administrative remedies should be without prejudice. 278 F.3d at 128. Dismissal without prejudice is the appropriate course because “[fjailure to exhaust administrative remedies precludes only the current lawsuit.” Id.; see 42 U.S.C. § 1997e(a). Even where, as here, the plaintiffs time to file for administrative review has passed, dismissal without prejudice is required, as the Bureau of Prisons may find cause to extend the applicable time limit. See 28 C.F.R. § 542.14(b) (providing that “[wjhere the inmate demonstrates a valid reason for delay, an extension in filing time may be allowed”).

Accordingly, we modify the judgment of the District Court to reflect a dismissal of plaintiffs claims without prejudice, and, as so modified, affirm the judgment of the District Court.