Brooke

MEMORANDUM **

Plaintiff Todd Lee Johnson is a California state prisoner who has brought this federal civil rights action against prison officials. He exhausted administrative remedies during the pendency of this litigation, but not before filing the complaint. In that circumstance he has failed to satisfy the exhaustion requirement of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e. McKinney v. Carey, 311 F.3d 1198 (9th Cir.2002) (per curiam).

Accordingly, we vacate the judgment on the merits and remand the case to the district court with instructions to dismiss Plaintiffs amended complaint without prejudice. 1 Because the law was unclear when Plaintiff filed this action and because Plaintiffs position was not without merit, we further instruct the district court not to count this action as a “strike” under the PLRA. See 28 U.S.C. § 1915 (g) (barring prisoners proceeding in forma pauperis from bringing an action if the prisoner has filed three prior actions deemed frivolous or dismissed for failure to state a claim).

The judgment is VACATED, and this case is REMANDED with instructions (1) to dismiss the action without prejudice and (2) not to count this action as a…