Opinion · Court of Appeals for the Ninth Circuit

Lunsford v. Jumao-As

Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir. 1998)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1998-10-05
Topic
general

How later courts describe this case

  • holding that Bivens plaintiff was not required to exhaust administrative remedies where Administrative Remedy Program provided only for injunctive relief
  • emphasizing that plaintiff only sought monetary relief
  • “The Court finds that ‘available remedies’ as used in § 1997e(a) limit exhaustion to situations where there is an administrative remedy for the injury suffered by the litigant”

Citator

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Cited by
41 opinions
LUNSFORD v. C.D. JUMAO-AS,155 F.3d 1178(9th Cir. 1998)
JOHN WAYNE LUNSFORD, Petitioner-Appellant, v. C.D. JUMAO-AS, Dr.;
Sterling Pollack, Dr.; Jon Hinz; Regional Health Services Administrator;
J.T. O'Brien, Associate Warden; Pat W. Koehane, Respondents-Appellees.
No. 96-56503
United States Court of Appeals, Ninth Circuit.
Submitted February 2, 1998fn*
Order Filed February 13, 1998.
Order Withdrawn October 5, 1998.
Decided October 5, 1998.
Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CV-96-06143-HLH.
Catherine Valerio Barrad and James M. Harris, Sidley Austin, Los Angeles, California, for appellant.

Robert I. Lester, Assistant United States Attorney, Los Angeles, California, for appellees.
Before: FLETCHER, MAGILL,fn**and T. G. NELSON, Circuit Judges.
[1]
ORDER WITHDRAWING ORDER AND DENYING PETITION FOR REHEARING
[2] The published Order filed February 13, 1998, [139 F.3d 1233], is withdrawn and a substitute order is filed simultaneously with this order.

[3] Appellees' Petition for Rehearing is DENIED except as reflected in the substitute order.Page 1179
ORDER
[4] John Wayne Lunsford, a federal prisoner, seeks only damages in hisBivensaction for claims arising from past conduct by prison officials because he received the corrective surgery he required before this action was filed. He does not request that the Bureau of Prisons be required to take further corrective action. We agree with both parties that Lunsford was therefore not required to exhaust his administrative remedies before filing this lawsuit in the district court in light of the fact that the Administrative Remedy Program only provides for injunctive relief.See42 U.S.C. § 1997e(a);Honig v. Doe,484 U.S. 305,327,108 S.Ct. 592,98 L.Ed.2d 686(1988);28 C.F.R. § 542.12(b). Therefore, we VACATE the district court's order dismissing Lunsford's complaint and denying his application to proceedin formapauperis, and REMAND this case to the district court for further proceedings consistent with this order.1

[5] VACATED AND REMANDEDPage 893
  1. The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P.34(a) and Ninth Circuit Rule 34-4. ↩
  2. Honorable Frank J. Magill, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation. ↩
  3. We express no opinion concerning a federal prisoner's duty to exhaust administrative remedies where the lawsuit is based on allegedly unconstitutional ongoing conduct. Lunsford's lawsuit involves only past conduct by prison officials. ↩