Duane Ronald Belanus v. Leo Dutton;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE RONALD BELANUS,
Plaintiff - Appellant,
v.
LEO DUTTON; et al.,
Defendants - Appellees.
No. 13-35706
D.C. No. 6:12-cv-00065-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Montana state prisoner Duane Ronald Belanus appeals pro se from the
district court’s judgment dismissing for failure to exhaust administrative remedies
his 42 U.S.C. § 1983 action alleging that defendants failed to protect him during
his pretrial detainment. We have jurisdiction under 28 U.S.C. § 1291. We review
FILED
DEC 08 2014
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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de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28
U.S.C. § 1915A). We reverse and remand.
Although Belanus’s failure to exhaust is clear from the face of the amended
complaint, the district court erred in concluding at this early stage of the
proceedings, before defendants have appeared, that administrative remedies were
available to Belanus. See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014)
(en banc) (holding that it is defendant’s burden to prove that there was an available
administrative remedy that the inmate failed to exhaust); see also Sapp v. Kimbrell,
623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not required where administrative
remedies are “effectively unavailable”). Accordingly, because dismissal for failure
to exhaust was premature, we reverse the judgment and remand for further
proceedings.
REVERSED and REMANDED.
13-35706 2

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