Martinez Aytch v. G. Carpenter, Rn, Dons;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTINEZ AYTCH,
Plaintiff-Appellant,
v.
G. CARPENTER, RN, DONS; et al.,
Defendants-Appellees.
No. 16-16157
D.C. No. 3:15-cv-00623-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Nevada state prisoner Martinez Aytch appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s dismissal under 28 U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889, 892
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-16157
(9th Cir. 2011). We vacate and remand.
The district court screened and dismissed Aytch’s action for failure to
exhaust administrative remedies, finding that Aytch filed the complaint before he
received a response to his first level grievance. However, Aytch alleged that the
prison failed to respond to his informal grievances and that administrative remedies
were effectively unavailable to him. See Sapp v. Kimbrell, 623 F.3d 813, 826 (9th
Cir. 2010) (PLRA does not require exhaustion when remedies are “effectively
unavailable”); Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005) (“Delay in
responding to a grievance, particularly a time-sensitive one, may demonstrate that
no administrative process is in fact available.”). Because the district court did not
address whether administrative remedies were effectively unavailable to Aytch, we
vacate and remand for further proceedings.
VACATED and REMANDED.

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