Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. No. CV-97-01141-SMM
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding.
Before FARRIS, CANBY, and W. FLETCHER, Circuit Judges.
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.
Rick Alton Foley, an Arizona state prisoner, appeals pro se from the district court's judgment dismissing his action without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's application of § 1997e(a), see Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir.1999), cert. denied, 120 S.Ct. 787 (2000), and affirm.
In his complaint, Foley alleged that prison officials had violated his First and Fourteenth Amendment rights. Foley sought monetary relief as well as the return or replacement of his property. We construe Foley's complaint as seeking prospective relief in addition to damages and conclude that he was required to exhaust administrative remedies. See Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir.1991) (holding that exhaustion of administrative remedies is required where a prisoner is seeking damages and other relief in a Bivens action); Rumbles, 182 F.3d at 1069 (stating that Bivens and § 1983 actions are identical except for the identity of the actors sued).
Foley submitted a notice to the district court that he had not exhausted his administrative remedies on all claims. Foley did not explain which, if any, claims had been exhausted or why he had not exhausted his administrative remedies. Given the information available to the district court, we cannot conclude that the district court erred by dismissing Foley's action without prejudice. See id.
On appeal, however, Foley submits documents establishing that prison officials have identified him as an abuser of the inmate grievance system and have ordered him not to file appeals from unprocessed grievances. Insofar as Foley has been warned not to submit "inappropriate" grievances to prison officials and has been forbidden to appeal grievances, we conclude that district courts should take these facts into account in the future when determining whether exhaustion of administrative remedies should be required. See id.
AFFIRMED.