Lunsford v. Jumao-As

139 F.3d 1233

John Wayne LUNSFORD, Petitioner-Appellant, v. C.D. JUMAO-AS, Dr.; Sterling Pollack, Dr.; Jon Hinz; Regional Health Services Administration; J.T. O'Brien, Associate Warden; Pat W. Koehane, Respondents-Appellees.

No. 96-56503.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 2, 1998. * Order Decided Feb. 13, 1998. Order Published March 23, 1998.

Catherine Valerio Barrad and James M. Harris, Sidley & Austin, Los Angeles, California, for the plaintiff-appellant.

Robert I. Lester, Assistant United States Attorney, Los Angeles, California, for the appellees.

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.

Before: FLETCHER, MAGILL, ** and T.G. NELSON, Circuit Judges.

ORDER 1

The request for publication is GRANTED.

2

The dispositive order filed February 13, 1998, is redesignated as a published order.

ORDER 3

We agree with both parties that because John Wayne Lunsford seeks only damages in his Bivens action, he was 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. See 42 U.S.C. § 1997e(a); Honig v. Doe, 484 U.S. 305, 327 , 108 S.Ct. 592, 606 , 98 L.Ed.2d 686 (1988). Therefore, we VACATE the district court's order dismissing Lunsford's complaint and denying his application to proceed in forma pauperis, and REMAND this case to the district court for further proceedings consistent with this order.

4

VACATED AND REMANDED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4 ** Honorable Frank J. Magill, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation