Sammy Lee Terrell v. R.D. Brewer, Warden Jon Morales Christopher C. Phillips

Sammy Terrell, a federal prisoner proceeding pro se and in forma pauperis, appeals from a November 30, 1989 summary judgment order dismissing his action with prejudice. Terrell alleges that the district court erred by (1) denying Terrell’s request for appointment of counsel; (2) denying his Rule 56(f) motion to stay summary judgment pending further discovery; (3) granting summary judgment in favor of defendant Morales; and (4) dismissing Terrell’s complaint with prejudice as to defendant Phillips for failure to exhaust administrative remedies.

The fourth issue on appeal raises a question of first impression in this circuit. Although the district court was correct to dismiss Terrell’s complaint as to Phillips, that dismissal should have been without prejudice. We AFFIRM in part, and REVERSE and REMAND in part.

FACTUAL AND PROCEDURAL BACKGROUND

Terrell is a prisoner who was formerly-housed at Terminal Island Federal Correctional Institution in San Pedro, California. He alleges that on December 8, 1987, Correctional Officer Christopher C. Phillips purposely closed a food-slot door on his hand, allegedly causing profuse bleeding. Phillips claims that he closed the slot to protect…