Kevin G. Roby v. T. STEWART, Sergeant;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN G. ROBY,
Plaintiff - Appellant,
v.
T. STEWART, Sergeant; et al.,
Defendants - Appellees.
No. 09-15603
D.C. No. 5:08-cv-01113-JF
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Kevin G. Roby, 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
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

PDM/Research 09-15603 2
administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo the district court’s dismissal for failure to exhaust, and for clear error its
factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and
we vacate and remand.
Defendants have not met their burden of proving that Roby’s action should
be dismissed for failure to exhaust administrative remedies. They failed
adequately to address Roby’s sworn affidavit that a prison official told him that he
need not pursue administrative appeals about being double-celled and attacked by
his cellmate in 2005. See Marella v. Terhune, 562 F.3d 983, 985 (9th Cir. 2009)
(per curiam) (holding that the district court erred in dismissing prisoner’s
complaint for failure to exhaust administrative remedies where the prisoner was
informed that the appeals process was unavailable to him); 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.”); Wyatt, 315 F.3d at 1119 (“[D]efendants have the burden
of raising and proving the absence of exhaustion.”).
VACATED and REMANDED.

-- 2 of 2 --