Miguel Enrique Diaz v. McCUE;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Plaintiff consented to proceed before a magistrate judge. See 28**
U.S.C. § 636(c).
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NOT FOR PUBLICATION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
MIGUEL ENRIQUE DIAZ,
Plaintiff - Appellant,
v.
McCUE; et al.,
Defendants - Appellees.
No. 12-15367
D.C. No. 2:11-cv-02274-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding**
Submitted February 11, 2013***
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Miguel Enrique Diaz, a California state prisoner, appeals pro se from the
district court’s judgment dismissing sua sponte his 42 U.S.C. § 1983 action for
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-15367 2
failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a district court’s dismissal under 28 U.S.C. § 1915A,
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we vacate and remand.
Sua sponte dismissal of Diaz’s action for failure to exhaust administrative
remedies was improper because Diaz’s filings at this early stage of the proceedings
do not clearly show that Diaz failed to exhaust any available administrative
remedies. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003)
(nonexhaustion is an affirmative defense, and prisoner’s concession to
nonexhaustion is a valid ground for dismissal only if no exception to exhaustion
applies and record is clear that plaintiff has conceded); see also Nunez v. Duncan,
591 F.3d 1217, 1224-26 (9th Cir. 2010) (exhaustion may be excused where a
prisoner’s reasonable attempts to exhaust remedies are thwarted by the prison
staff’s mistakes); 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 either received all
‘available’ remedies at an intermediate level of review or been reliably informed
by an administrator that no remedies are available.”). Accordingly, we vacate and
remand with instructions to allow Diaz to amend his complaint to address the
substantive issues identified in the district court’s order of January 18, 2012.
VACATED and REMANDED.

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