Opinion
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NOT FOR PUBLICATION.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)
Page 153.
Joseph David Vincze, Ione, CA, pro se.
Gregory T. Fayard, Esq., Jack Duran, Jr., Esq., Office of the California Attorney General, Department of Justice, Sacramento, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-02-01719-LKK/KJM.
Before: LEAVY, THOMAS, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Joseph David Vincze, a California state prisoner, appeals pro se the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging that prison librarian, Leon Robinson, retaliated against him for filing grievances and denied him access to courts by failing to make photocopies of legal documents. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal based on res judicata, W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.1997), and we reverse and remand.
In Vincze's prior action, Vincze v. Robinson, 48 Fed.Appx. 670 (9th Cir.2002) (unpublished memorandum disposition), this Court affirmed the district court's dismissal of his claims of retaliation and interference with access to courts, without prejudice, for failure to exhaust administrative remedies. Dismissal for failure to exhaust administrative remedies is without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003). A dismissal without prejudice is not an adjudication on the merits and does not have res judicata effect. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also In re Marino, 181 F.3d 1142, 1144 (9th Cir.1999). Accordingly, the district court erred in applying res judicata to his current action. See id.
We deny Vincze's motion for intervention and sanctions without prejudice to raising his claims in a properly filed complaint.
REVERSED and REMANDED.