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McKINNEY v. CAREY

Nos. 01-17436, 01-56627.

311 F.3d 1198 (2002)

Gregory McKINNEY, Plaintiff-Appellant, v. Tom L. CAREY, Warden; John Baughman, Defendants-Appellees. Gregory McKinney, Plaintiff-Appellant, v. Vern Smith, Warden; Shelia Buttram, Correctional Officer; Jack Thomas, Correctional Officer; Vernon Bach, Adam, Estrella, Correctional Officer, Ernesto Ponce, Correctional Officer, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed December 5, 2002.

Attorney(s) appearing for the Case

Gregory McKinney, Tehachape, CA, plaintiff-appellant, pro se, in No. 01-17436.

Gregory McKinney, Tehachape, CA, plaintiff-appellant, pro se, in No. 01-56627.

Bill Lockyer, Robert R. Anderson, Paul D. Gifford, Darrell L. Lepkowsky, Richard F. Wolfe, Office of the Attorney General of the State of California, San Diego, CA, for the defendants-appellees in No. 01-56627.

Before STAPLETON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

OPINION

PER CURIAM.

These appeals, which have been consolidated for purposes of this opinion, present the issue of whether a district court must dismiss an action involving prison conditions when the plaintiff did not exhaust his administrative remedies prior to filing suit but is in the process of doing so when a motion to dismiss is filed. In each of these cases, the district court held that it was required by 42 U.S.C. § 1997e(a) to dismiss the complaint...

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