Marcos C. Guillen v. ROCHA, Correctional Officer

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS C. GUILLEN,
Plaintiff - Appellant,
v.
ROCHA, Correctional Officer,
Defendant - Appellee.
No. 08-17308
D.C. No. 5:06-cv-05176-RMW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted November 16, 2010**
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
California state prisoner Marcos C. Guillen appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action, without prejudice, for
failure to exhaust administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction under 28
FILED
NOV 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th
Cir. 2003) (dismissal for failure to exhaust administrative remedies); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)). We vacate and remand.
The district court determined at screening that Guillen did not properly
exhaust administrative remedies because he stated in his complaint that he did not
appeal his grievances to the highest level of administrative review. However,
Guillen contends that prison officials improperly screened his grievances,
preventing him from appealing to the highest level. We recently clarified that
improper screening of an inmate’s grievances renders administrative remedies
“effectively unavailable” such that exhaustion is not required under the PLRA.
Sapp v. Kimbrell, No. 05-15745, WL 3733581, at *10 (9th Cir. Sept. 27, 2010).
Moreover, defendants bear the burden of raising and proving failure to exhaust
administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
We therefore cannot say at this early juncture that Guillen failed to exhaust all
available administrative remedies. See id. at 1120 (“A prisoner’s concession to
nonexhaustion is a valid ground for dismissal, so long as no exception to
exhaustion applies.”).

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Guillen shall bear his own costs on appeal.
VACATED and REMANDED.

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