Loeb v. Evans

81 F. App'x 234

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2003
• Docket: No. 03-16031; D.C. No. CV-02-00316-LKK/JFM
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Desmon Loeb appeals from the judgment dismissing his action under 42 U.S.C. § 1983 against prison officials. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissal for failure to exhaust, see Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.), cert. denied, — U.S. —, 124 S.Ct. 50, 157 L.Ed.2d 23, 71 U.S.L.W. 3668 (2003), and dismissal for failure to state a claim, see Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000).

It is undisputed that Loeb’s administrative grievances regarding excessive force were filed after he filed his original complaint. Likewise, Loeb’s administrative appeal from related disciplinary proceedings was not resolved until seven months after his complaint was filed. Therefore, Loeb failed to exhaust his administrative remedies, and the district court’s dismissal of those claims without prejudice was proper. See 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 F.3d at 1120.

The district court should also have dismissed Loeb’s claims against associate warden Colon for failure to exhaust, rather than reaching the merits. Accordingly, we construe the dismissal of those claims to be without prejudice. Id.

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.