James W. Covert v. D. GRAHAM, CDCR Lieutenant; R. HARRISON, CDCR Sergeant

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES W. COVERT,
Plaintiff - Appellant,
v.
D. GRAHAM, CDCR Lieutenant;
R. HARRISON, CDCR Sergeant,
Defendants - Appellees.
No. 10-16134
D.C. No. 4:06-cv-06626-SBA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted January 17, 2012**
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
James W. Covert, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust
administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
FILED
JAN 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-16134 2
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We vacate and remand.
Defendants have not met their burden of proving that Covert’s action should
be dismissed for failure to exhaust administrative remedies. Covert stated in his
sworn declaration in opposition to the motion to dismiss that he attempted to file
appeals at the second level of review for his May 6, 2005 grievance, and that these
appeals were never properly processed. Defendants relied on a declaration by
appeals coordinator Padilla that does not explain the prison’s record keeping
methods or otherwise address how attempted inmate appeals are tracked or
handled. See id. at 1116-17, 1119-20 (an incomplete record is inadequate to
establish nonexhaustion). Accordingly, we vacate the judgment and remand for
further proceedings.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

-- 2 of 2 --