Dominguez v. Rosas
Docket: No. 04-55757
Court: Court of Appeals for the Ninth Circuit; September 20, 2005; Federal Appellate Court
Larry Dominguez, a California state prisoner, appeals the district court’s dismissal of his action without prejudice due to failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). The appeal falls under the jurisdiction of 28 U.S.C. § 1291. The review of the dismissal is conducted de novo regarding the exhaustion determination and for clear error on findings of fact. The district court's dismissal occurred prior to the ruling in Ngo v. Woodford, where it was established that a prisoner's appeal rejected as untimely still constitutes exhaustion of administrative remedies if the prisoner contests the timeliness. Dominguez's appeal similarly faced rejection on timeliness grounds, which the court found sufficient for exhaustion purposes. Additionally, the court reinforced that the Prison Litigation Reform Act (PLRA) does not prevent judicial consideration of an appeal that was denied based on state procedural issues. Dominguez’s motion for appointment of counsel was deemed unnecessary. The court vacated the dismissal order and remanded the case for further proceedings. The decision is not intended for publication and is restricted from citation in the circuit courts per 9th Cir. R. 36-3.