A California state prisoner filed a lawsuit, alleging that he was being exposed to environmental tobacco smoke. He sought damages and injunctive relief. Defendants moved to dismiss the complaint on the grounds that Buc-Hanan had failed to exhaust his administrative remedies. In response, Buc-Hanan submitted documents which demonstrated that although he had not exhausted his remedies on the date the complaint was filed, he had exhausted all administrative remedies available within the prison during the pendency of his action. The magistrate judge recommended denying the motion to dismiss but the district court rejected the magistrate judge’s recommendation and dismissed the lawsuit without prejudice. The U.S. Court of Appeals for the Ninth Circuit vacated the district court’s dismissal since, in Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), it had concluded that the exhaustion requirement is not jurisdictional.
., 2000 U.S. App. LEXIS 1486 (U.S.C.A. 9th Cir. 2000).