Raine v. Femme

Ninth Circuit

Raine v. Femme

161 F. App'x 720

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 12, 2006

DocketNo. 03-57045; D.C. No. CV-01-06342-GAF

StatusPublished

This text of 161 F. App'x 720 (Raine v. Femme) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raine v. Femme, 161 F. App'x 720 (9th Cir. 2006).

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Opinion

MEMORANDUM

**

Federal prisoner Ronald Del Raine appeals pro se the district court’s order dismissing without prejudice his civil rights action alleging, inter alia, that employees of the United States Bureau of Prisons unlawfully placed him in segregation, denied him a transfer for retaliatory reasons, and ransacked his files. We have jurisdiction pursuant to 28 U.S.C. § 1291. After de novo review, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), we vacate and remand.

The district court dismissed Del Raine’s action because he had not exhausted his administrative remedies with respect to all of his claims. We have since held that the Prison Litigation Reform Act does not require “total exhaustion.” See Lira v. Herrera, 427 F.3d 1164, 1170-75 (9th Cir.2005). We therefore vacate and remand for further proceedings consistent with our decision in Lira. See id. at 1175-76 (describing dual rule that depends on degree of relatedness between exhausted and unexhausted claims). The district court did not abuse its discretion in denying Del Raine leave to amend or supplement his [721]*721complaint by adding new defendants whose relationship to the events underlying the original complaint was not specified. See Fed.R.Civ.P. 15(a), (c), (d).

Contrary to the magistrate judge’s recommendation, sovereign immunity does not provide an alternative basis for dismissal, because it is clear from the record that Del Raine sought to sue defendants in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 26-27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (distinguishing capacity in which an official is sued from capacity in which the official inflicts the alleged injury).

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Federal prisoner Ronald Del Raine appeals pro se the district court’s order dismissing without prejudice his civil rights action alleging, inter alia, that employees of the United States Bureau of Prisons unlawfully placed him in segregation, denied him a transfer for retaliatory reasons, and ransacked his files. We have jurisdiction pursuant to 28 U.S.C. § 1291. After de novo review, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), we vacate and remand.

The district court dismissed Del Raine’s action because he had not exhausted his administrative remedies with respect to all of his claims. We have since held that the Prison Litigation Reform Act does not require “total exhaustion.” See Lira v. Herrera, 427 F.3d 1164, 1170-75 (9th Cir.2005). We therefore vacate and remand for further proceedings consistent with our decision in Lira. See id. at 1175-76 (describing dual rule that depends on degree of relatedness between exhausted and unexhausted claims). The district court did not abuse its discretion in denying Del Raine leave to amend or supplement his [721]*721complaint by adding new defendants whose relationship to the events underlying the original complaint was not specified. See Fed.R.Civ.P. 15(a), (c), (d).

Contrary to the magistrate judge’s recommendation, sovereign immunity does not provide an alternative basis for dismissal, because it is clear from the record that Del Raine sought to sue defendants in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 26-27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (distinguishing capacity in which an official is sued from capacity in which the official inflicts the alleged injury).

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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161 F. App'x 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raine-v-femme-ca9-2006.

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