Lee v. Garcia

Full title: Kenneth Duane LEE, Plaintiff-Appellant, v. Rosie GARCIA, Warden; et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 23, 2001

14 F. App'x 927 (9th Cir. 2001)

Opinion

14 Fed.Appx. 927 (9th Cir. 2001) Kenneth Duane LEE, Plaintiff-Appellant, v. Rosie GARCIA, Warden; et al., Defendants-Appellees. No. 00-55853. D.C. No. CV-99-02508-JTM. United States Court of Appeals, Ninth Circuit. July 23, 2001

Submitted July 9, 2001. ^*

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

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State prisoner brought § 1983 action against prison officials. The United States District Court for the Southern District of California, Jeffrey T. Miller, J., dismissed the action based on failure to exhaust administrative remedies. Prisoner appealed. The Court of Appeals held that prisoner, who had pursued only one level of the three levels of formal administrative review available for most grievances by California prisoners, failed to exhaust his administrative remedies.

Affirmed.

Page 928.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding.

Before KOZINSKI, T.G. NELSON, and TALLMAN, 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 may be provided by 9th Cir. R. 36-3.

Kenneth Duane Lee, a California state prisoner, appeals pro se the district court's judgment dismissing without prejudice 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, see Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.1994) (per curiam), and we affirm.

Regardless of the form of relief sought, prisoners are required to exhaust available administrative remedies prior to bringing suit in federal court. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001). For California state prisoners, the available administrative remedies include a level of informal review and three levels of formal review for most claims. See Cal.Code Regs. tit. 15, § 3084.5. Because the record establishes that Lee only pursued his grievance through the first level of review, the district court did not err by dismissing the action without prejudice to allow Lee the opportunity to exhaust administrative remedies. See Booth, 121 S.Ct. at 1825.

AFFIRMED.