Campbell v. Bailey

Full title: TONY CAMPBELL, Plaintiff - Appellant, v. J. BAILEY; et al., Defendants …

Court: United States Court of Appeals, Ninth Circuit

Date published: Sep 19, 2006

No. 05-17242 (9th Cir. Sep. 19, 2006)

Opinion

TONY CAMPBELL, Plaintiff - Appellant, v. J. BAILEY; et al., Defendants - Appellees. No. 05-17242 United States Court of Appeals, Ninth Circuit September 19, 2006

NOT FOR PUBLICATION

Submitted September 11, 2006 ^**

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Appeal from the United States District Court for the Eastern District of California D.C. No. CV-04-01292-MCE, Morrison C. England, Jr., District Judge, Presiding

Before: PREGERSON, T.G. NELSON, and GRABER, Circuit Judges.

MEMORANDUM ^*

* 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.

California state prisoner Tony Campbell appeals pro se from the district court§s judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C. § 1983 action alleging defendants subjected him to excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court§s determination that a prisoner failed to exhaust available administrative remedies, and review for clear error its findings of fact. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). We affirm.

The district court properly dismissed the action without prejudice to refiling because Campbell failed to exhaust administrative remedies prior to filing his original complaint. See McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam) (holding that 42 U.S.C. § 1997e(a) requires dismissal without prejudice where a prisoner has not exhausted administrative remedies prior to filing suit).

Campbell§s June 29, 2006 §Motion for Summary Judgment§ is denied.

AFFIRMED.