Francisco Estrada v. Joe Booker, Jr.

MEMORANDUM

Francisco Javier Estrada, a federal prisoner, appeals pro se from the district court’s judgment in his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (“FTCA”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court’s dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and review for clear error its factual determinations concerning exhaustion, id. We affirm in part, vacate in part, and remand.

The district court properly determined that Estrada failed to state a claim under the FTCA because he alleged only-violations of his federal constitutional rights. See Pereira v. U.S. Postal Serv., 964 F.2d 873, 876-77 (9th Cir.1992) (explaining that constitutional torts are not cognizable under the FTCA).

The district court concluded that, with regard to his Bivens claims, Estrada failed to properly exhaust administrative remedies prior to filing his federal action. It…