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68 F. App'x 856

Emery v. Bayer

U.S. Courts of Appeals

Decided June 27, 2003

U.S. Courts of Appeals · decided 2003-06-27

Applies 28 U.S.C. § 1291 · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act)) · 42 U.S.C. § 1997 (Civil Rights of Institutionalized Persons Act)

Relies on V. C O Churner · Correction Officer Porters v. Ronald Nussle · Wyatt v. Terhune

Decided 2003-06-27

¶1MEMORANDUM…

¶2Dana R. Emery appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. Emery claims that prison officials violated his civil rights when they failed properly to respond to his requests for treatment for his dental problems while he was an inmate. We have jurisdiction under 28 U.S.C § 1291, and we affirm.

¶3Emery did not exhaust his administrative remedies. He filed requests for medical attention but did not file grievances when those requests were denied. Prisoners are required to exhaust administrative remedies before bringing any action under § 1983, even when the remedy, such as money damages, is not available in prison grievance procedures. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); 42 U.S.C. § 1997(e)(a). This “exhaustion requirement applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The defendants properly raised this defense in a motion under Federal Rule of Civil Procedure 12(b) rather than as a motion for summary judgment, see Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), petition for cert. filed, 71 U.S.L.W. 3668 (U.S. April 1, 2003) (No. 02-1486), and the district court properly granted the motion to dismiss.

¶4AFFIRMED.

¶5 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.

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