Lunsford v. Jumao-As

155 F.3d 1178, 98 Cal. Daily Op. Serv. 7595, 1998 U.S. App. LEXIS 24606, 1998 WL 683306

Opinion

ORDER WITHDRAWING ORDER AND DENYING PETITION FOR REHEARING

The published Order filed February 13, 1998 [139 F.3d 1233], is withdrawn and a substitute order is filed simultaneously with this order.

Appellees’ Petition for Rehearing is DENIED except as reflected in the substitute order.

ORDER

John Wayne Lunsford, a federal prisoner, seeks only damages in his Bivens action for claims arising from past conduct by prison officials because he received the corrective surgery he required before this action was filed. He does not request that the Bureau of Prisons be required to take further corrective action. We agree with both parties that Lunsford was therefore not required to exhaust his administrative remedies before filing this lawsuit in the district court in light of the fact that the Administrative Remedy Program only provides for injunctive relief. See 42 U.S.C. § 1997e(a); Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); 28 C.F.R. § 542.12(b). Therefore, we VACATE the district court’s order dismissing Lunsford’s complaint and denying his application to proceed in fo?ma pauperis, and REMAND this case to the district court for further proceedings consistent with this order.¹

VACATED AND REMANDED.

1 . We express no opinion concerning a federal prisoner's duty to exhaust administrative remedies where the lawsuit is based on allegedly unconstitutional ongoing conduct. Lunsford's lawsuit involves only past conduct by prison officials.