Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

MEMORANDUM^* 

The panel unanimously agrees that this case may be submitted without oral argument.

Barry Feldman, a federal prisoner, appeals pro se the denial of his petition for a writ of habeas corpus. Our review of the record satisfies us that the Parole Commission violated Feldman's statutory rights by basing its parole determination on a report that was not made reasonably accessible to Feldman in advance of his parole hearing. See 18 U.S.C. § 4208(b) (2); Anderson v. United States Parole Commission, 793 F.2d 1136, 1137 (9th Cir. 1986). However, before seeking habeas relief on a parole matter a federal prisoner must exhaust his available administrative remedies. Ruviwat v. Smith, 701, F.2d 844, 845 (9th Cir. 1983); see also Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Feldman must first request a new appeal from the Commissioner. The district court therefore properly dismissed the Habeas petition sua sponte.

Feldman also challenges the district court's power to grant dismissal sua sponte. A district court has the power to sua sponte dismiss a complaint for failure to state a claim, Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1340-41 (9th Cir. 1981), as well as on statute of limitations grounds, Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981). We see no reason why a district court may not also sua sponte dismiss for failure to exhaust administrative remedies. In so doing, however, we require that the court adhere to certain procedural steps including notice to the plaintiff and an opportunity to oppose the dismissal and defend his or her complaint in writing. Franklin, 662 F.2d at 1341. Although the district court initially did not adhere to these procedures, by granting the motion for reconsideration, the district court permitted the plaintiff to oppose dismissal and defend his complaint in writing. After considering the motion, the court again ordered dismissal, stating its reasons. We therefore hold that the district court's sua sponte dismissal was not error.

AFFIRMED.