Franklin v. Williams

62 F. App'x 168

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2003
• Docket: No. 02-16973; D.C. No. CV-99-00002-DFL
• Status: Published

Opinion

MEMORANDUM

**

Johnny L. Franklin, a California state prisoner, appeals pro se from the district court’s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action alleging prison officials showed deliberate indifference in failing to adequately treat his cyst. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s determination that a prisoner failed to exhaust administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we affirm.

The district court properly dismissed Franklin’s action because Franklin failed to exhaust administrative remedies prior to filing his initial complaint. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (holding a prisoner cannot meet exhaustion requirements of 42 U.S.C. § 1997e(a) by exhausting available remedies during the course of litigation). We construe the district court’s order as dismissing the action without prejudice. See Wyatt, 315 F.3d at 1120.

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.