Harris

MEMORANDUM **

D. Harris appeals the district court’s June 12, 2003 order dismissing his second amended complaint filed under 42 U.S.C. § 1983 without prejudice. The district court held that Harris failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a) (the PLRA) before filing suit. We review the district court’s factual determination that Harris failed to exhaust his administrative remedies for clear error, and its legal conclusions de novo. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

Because the parties are familiar with the facts and procedural history, we recite them here only as needed. It is undisputed that neither Harris nor his counsel followed the established grievance procedures at the prison where the alleged wrongful conduct occurred. Further, the first letter sent by Harris’s counsel to Sheriff Baca is not a part of the record and therefore we cannot consider it as evidence.

The second letter sent by Harris’ counsel to Sheriff Baca was sent on April 28, 2003, the same day the district court dismissed Harris’s first amended complaint without prejudice for failure to exhaust his…