Kelce v. Cervantes

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFERY KELCE, No. 04-15601
Plaintiff - Appellant, D.C. No. CV-01-02350-DFL/JFM
v.
MEMORANDUM *
S. CERVANTES, Appeals Coordinator; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted November 6, 2009
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District
Judge.
Jeffrey Kelce, a former California state prisoner, appeals the district court’s
judgment dismissing his action under 42 U.S.C. § 1983. Kelce alleged that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
defendants violated his constitutional rights by denying him access to the courts
and depriving him of his property. Kelce also challenged certain regulations
governing the California state prison grievance process as unconstitutional.
The parties on appeal agreed that Kelce had unexhausted remedies for his
claims under the California Tort Claims Act, Cal. Gov’t Code §§ 900 et seq. In
view of the posture of the case, we remand the case to the district court with
directions to hold this action in abeyance while Kelce pursues his remedies under
the California Tort Claims Act. After the resolution of those claims, the district
court shall conduct any further appropriate proceedings to determine any
remaining issues in this case.
We need not, and do not, reach any other issue urged by the parties on
appeal.
REMANDED.
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