Saunders v. Terhune

74 F. App'x 819

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2003
• Docket: No. 02-15564; D.C. No. CV-00-06577-OWW(DLB)
• Status: Published

Opinion

MEMORANDUM

**

Jason Saunders, a California state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. 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 Saunders’ action because he admitted that he failed to exhaust prison administrative remedies prior to filing his complaint. See 42 U.S.C. § 1997e(a); Wyatt, 315 F.3d at 1120 (stating that a “prisoner’s concession to nonexhaustion is a valid ground for dismissal”); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (holding that a prisoner cannot meet exhaustion requirements 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.

Saunders’ remaining contentions lack merit and his request for judicial notice is denied.

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.