Jesus Galindo v. Lee Baca

MEMORANDUM

Jesus Galindo, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs in connection with the treatment he received for a testicular disorder. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir.1993) (per curiam). We reverse and remand.

The district court improperly dismissed Galindo’s action on the basis of issue preclusion. The record indicates that the district court in Galindo’s prior federal action did not, because it could not, address Gal-indo’s evidence showing that he mailed several complaints to defendants after he filed the action and received no response. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (prisoners must exhaust administrative remedies pri- or to filing suit, not during the pendency of the suit). Accordingly, the issue of whether Galindo exhausted administrative remedies was not fully litigated and decided against him in a previous action. See Hawkins, 984 F.2d at 325 (“Issue preclusion prevents relitigation of all issues of fact or law that were…