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Third Circuit Has Appellate Jurisdiction Over Unexhausted Claims

The plain language of the exhaustion requirement ("No action shall be brought") shows that Congress did not intend that it be applied to cases already pending on the date of the PLRA's enactment However, the plaintiff was required to exhaust under pre-PLRA law because he was a federal prisoner bringing a "mixed" claim (ie, for damages and injunctive relief) The subsequent mooting of the injunctive claim does not affect the validity of the district court's dismissal at the time it was done

Ordinarily dismissal without prejudice is not appealable. However, a litigant who does not attempt to avail himself of the administrative process but instead files an appeal arguing that exhaustion would be futile effectively stands on his original complaint and the court therefore has appellate jurisdiction. See: Ghana v. Holland, 226 F.3d 175 (3d Cir. 2000).

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Related legal case

Ghana v. Holland