If an inmate fails to exhaust his claim before asserting them in a lawsuit, can the court dismiss those claims without prejudice?
MultiRegion, United States of America
The following excerpt is from Rupe v. Beard, No. CV-08-2454-EFS (PC) (E.D. Cal. 2013):
If an inmate fails to exhaust his claims before asserting them in a lawsuit, the court must dismiss those claims without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). A party seeking dismissal based on an inmate's failure to exhaust may do so by way of an unenumerated Rule 12(b) motion to dismiss. Id. at 1119. The party seeking dismissal bears the burden of proving that the inmate failed to exhaust administrative remedies. Id.
2. Statute of Limitations
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