Matthew Louis Johnson v. DARR, Correctional Officer

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).
PDM/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW LOUIS JOHNSON,
Plaintiff - Appellant,
v.
DARR, Correctional Officer,
Defendant - Appellee.
No. 09-55490
D.C. No. 3:08-cv-00080-DMS-
POR
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Matthew Louis Johnson, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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PDM/Research 09-55490 2
exhaust 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 review for clear
error its factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003). We affirm in part, vacate in part, and remand.
The district court properly dismissed the action because Johnson did not
complete the prison grievance process prior to filing suit. See Woodford v. Ngo,
548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” under § 1997e(a) is
mandatory and requires adherence to administrative procedural rules). However,
we vacate the judgment and remand for the limited purpose of entering dismissal
without prejudice. See Wyatt, 315 F.3d at 1120 (providing that dismissals for
failure to exhaust administrative remedies are without prejudice).
Johnson’s remaining contentions are unpersuasive.
Contrary to appellee’s contention, the district court did not abuse its
discretion by concluding Johnson’s action was not frivolous. See Denton v.
Hernandez, 504 U.S. 25, 33 (1992) (reviewing for abuse of discretion
frivolousness determinations under 28 U.S.C. § 1915(e)(2)).
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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