×
You have 2 more free articles available this month. Subscribe today.
9th Circuit Reverses Non-exhaustion Dismissal Due to Unavailable Forms
The Ninth Circuit Court of Appeals reversed a district court’s dismissal under 28 U.S.C. § 1915A(b) of a Nevada prisoner’s § 1983 action for failure to exhaust administrative remedies.
Citing Wyatt v. Terhune, 315 F3d 1108 (9th Cir. 2003), the Court observed that it would conduct a de novo review of “a district court’s determination that a prisoner failed to exhaust administrative remedies …, and review factual determinations for clear error.”
The appellate court noted that only “available” administrative remedies must be exhausted under 42 U.S.C. § 1997e(a). Noting that the prisoner’s “complaint alleges that he could not proceed to the first formal appeal level because prison officials deliberately made the required grievance forms unavailable to him,” the Ninth Circuit could not say that the prisoner had failed to exhaust his available administrative remedies. The case was remanded for a decision on the merits. See: Luster v. Schomig, U.S. Court of Appeals for the Ninth Circuit, Case No. 04-16204 (unpublished); 2005 WL 2341313.
Citing Wyatt v. Terhune, 315 F3d 1108 (9th Cir. 2003), the Court observed that it would conduct a de novo review of “a district court’s determination that a prisoner failed to exhaust administrative remedies …, and review factual determinations for clear error.”
The appellate court noted that only “available” administrative remedies must be exhausted under 42 U.S.C. § 1997e(a). Noting that the prisoner’s “complaint alleges that he could not proceed to the first formal appeal level because prison officials deliberately made the required grievance forms unavailable to him,” the Ninth Circuit could not say that the prisoner had failed to exhaust his available administrative remedies. The case was remanded for a decision on the merits. See: Luster v. Schomig, U.S. Court of Appeals for the Ninth Circuit, Case No. 04-16204 (unpublished); 2005 WL 2341313.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Luster v. Schomig
| Year | 2005 |
|---|---|
| Cite | U.S. Court of Appeals, 3rd Cir, Case No. 04-16204 |
| Level | Court of Appeals |
| Injunction Status | N/A |