Michael James Hicks v. M. S. EVANS, Warden, Salinas Valley State Prison

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case 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NOT FOR PUBLICATION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
MICHAEL JAMES HICKS,
Plaintiff - Appellant,
v.
M. S. EVANS, Warden, Salinas Valley
State Prison,
Defendant - Appellee.
No. 08-17085
D.C. No. 3:08-cv-01146-SI
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Submitted October 20, 2009**
Before: SKOPIL, LEAVY, and T.G. NELSON, Circuit Judges.
California state prisoner Michael James Hicks appeals pro se from the
district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action
for failure to exhaust his administrative remedies. We reverse and remand for
further proceedings.
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Hicks’ pending motions are denied as moot.1
2
DISCUSSION
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner
to exhaust available administrative remedies before bringing a federal action
concerning prison conditions. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.
2009). Hicks indicated in his complaint that he did not appeal his grievance
beyond the second level of prison review. Ordinarily, a district court could rely on
such a concession to dismiss a prisoner’s action. See Wyatt v. Terhune, 315 F.3d
1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid
ground for dismissal, so long as no exception to exhaustion applies.”).
In this instance, however, the record shows that Hicks’ grievance was
granted at the second level and therefore he was not required to seek additional
administrative review. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)
(“[A] prisoner need not press on to exhaust further levels of review once he has . . .
received all ‘available’ remedies at an intermediate level of review.”). The district
court therefore erred by sua sponte dismissing the action.
REVERSED AND REMANDED.1

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