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analyzing A.R.S. section 12-820.05(B) on appeal without considering the current jurisdictional issue
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The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)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, Roger G. Strand, District Judge, Presiding.
Before FARRIS, HAWKINS, and GRABER, 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.
Arizona state prisoner Robert Alan Grote appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failing to exhaust his administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir.1997), and we affirm.
Grote contends that the district court erred by dismissing his § 1983 action for damages and injunctive relief because exhaustion of administrative remedies was unnecessary due to defendants' alleged failure to provide him with immediate medical attention for irregular heart beats. This contention lacks merit.
Because Grote filed his action prior to the enactment of the Prison Litigation Reform Act ("PLRA"), the mandatory exhaustion requirement under 42 U.S.C. § 1997e(a) of the PLRA does not apply to Grote's case. See Bishop v. Lewis, 155 F.3d 1094, 1096 (9th Cir.1998).
A litigant need not exhaust administrative remedies if: (1) exhaustion would unduly prejudice the litigant's ability to seek judicial review of a particular claim; (2) the administrative procedure is inadequate to resolve a given claim; or (3) the administrative agency is biased or has otherwise predetermined the issue. See McCarthy v. Madigan, 503 U.S. 140, 146-49 (1992); see also Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir.1991) (articulating similar factors).
We conclude that the district court properly dismissed Grote's action without prejudice for failing to exhaust his administrative remedies because Grote has not shown that exhaustion implicates one of the enumerated exceptions set forth in McCarthy. See McCarthy, 503 U.S. at 146-49. Although the Court in McCarthy concluded that federal prisoners need not exhaust their administrative remedies before pursuing Bivens claims for damages,see id. at 149, the Ninth Circuit has held that where a federal prisoner seeks both damages and injunctive relief, any available administrative remedies must first be exhausted before proceeding with a Bivens action, see Terrell, 935 F.2d at 1019. Similarly, because Grote sought both monetary and injunctive relief in his § 1983 action, he must first exhaust his available administrative remedies before he can go forward with his § 1983 action. Cf. Rumbles v. Hill, No. 98-16794, slip op. 7167, 7176-77 (9th Cir. June 30, 1999) (extending rule in Bivens actions to § 1983 actions to exempt exhaustion of administrative remedies under § 1997e(a) of the PLRA when a prisoner seeks only money damages from a prison that does not provide such a remedy).
Bivens v. Six Unknown Fed. Narcotics Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
AFFIRMED.