Kevin Deon Brazier v. Jeffrey A. Beard;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN DEON BRAZIER,
Plaintiff - Appellant,
v.
JEFFREY A. BEARD; et al.,
Defendants - Appellees.
No. 14-17476
D.C. No. 1:13-cv-00787-LJO-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
California state prisoner Kevin Deon Brazier appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
U.S.C. § 1983 action arising from defendants’ failure to grant him a kosher meal
diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams
FILED
MAR 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative
remedies); Kneivel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Fed. R. Civ. P.
12(b)(6) motion to dismiss). We vacate and remand.
The district court concluded that Brazier failed to exhaust his administrative
remedies as mandated by the Prison Litigation Reform Act. However, it is not
clear from the face of the complaint and the exhibits attached to the complaint
whether Brazier failed to exhaust available administrative remedies because his
Second Level Appeal is not included in the record. See Albino v. Baca, 747 F.3d
1162, 1169 (9th Cir. 2014) (en banc) (“[O]nly in rare cases will a district court be
able to conclude from the face of the complaint that a prisoner has not exhausted
his administrative remedies and that he is without a valid excuse.” (citation and
internal quotation marks omitted)); see also Jones v. Bock, 549 U.S. 199, 211-217
(2007) (failure to exhaust is an affirmative defense which defendants must raise
and prove). Because defendants did not meet their burden of demonstrating that
Brazier failed to exhaust available administrative remedies, we vacate the judgment
and remand for further proceedings.
Brazier’s motion requesting alternative dispute resolution, filed on
December 16, 2015, and motion for settlement conference, filed on February 16,
2016, are denied.
14-17476 2

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The parties shall bear their own costs on appeal.
VACATED and REMANDED.
14-17476 3

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