Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

MEMORANDUM^** 

Brian Suttle ("Suttle"), a prisoner at San Quentin, appeals pro se the district court's summary dismissal of his 42 U.S.C. § 1983 action against certain prison officials. The district court determined that Suttle's complaint alleged violations of the permanent injunction entered against San Quentin and three other prisons in Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984), aff'd in part, r'vd and remanded in part, 801 F.2d 1080 (9th Cir. 1986).¹  The district court then dismissed Suttle's complaint, stating that Suttle's allegations fell within the initial jurisdiction of the special master appointed to oversee conditions of confinement and segregation procedures at those prisons. On appeal, Suttle contends that the district court erred in dismissing his complaint because his case already has been referred to the special master for review. We affirm.

DISCUSSION

Suttle's complaint alleges that the prison officials deprived him of due process by confining him in administrative segregation arbitrarily on the basis of falsified information and information from a confidential informant. In Toussaint, the district court determined that San Quentin's procedures for placing prisoners in segregated confinement violated the constitution. The court entered a permanent injunction against the prison, in which the court ordered termination of the unconstitutional conduct and appointed a special master, known as the monitor, to assist in implementation of the injunction's requirements. 597 F. Supp. at 1420-22. Among other tasks, the monitor was given initial authority to review the placement and retention of inmates in administrative segregation to ensure that the prison officials' decisions complied with procedural requirements imposed in the injunction.²  Id. at 1420-21, 1425-26.

Suttle contends that his case has been reviewed by the monitor. He offers as proof of this contention a prison form prepared by the "Toussaint Coordinator" at San Quentin which does indicate that Suttle requested monitor review of his placement in segregation. Suttle failed, however, to introduce this evidence before the district court and, therefore, the document is not part of the record on this appeal. In addition, Suttle has not introduced before the district court or this court any document showing the disposition of his case by the monitor.

Because Suttle did not establish before the district court that his case has been reviewed by the monitor, we affirm the district court's dismissal of Suttle's complaint. We note, however, that the district court did not indicate in its order whether the dismissal of Suttle's complaint was with or without prejudice. The dismissal clearly should be without prejudice to Suttle's right to file another action under Sec. 1983 once he can establish that he has fulfilled the monitor review requirement of the injunction. Thus, to avoid having the dismissal construed as with prejudice under Fed. R. Civ. P. 41(b), we modify the district court's order to indicate that the dismissal is without prejudice. As modified, the district court's order is

AFFIRMED.