Lynnard A. Smith v. Steven G. Davis;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNNARD A. SMITH,
Plaintiff - Appellant,
v.
STEVEN G. DAVIS; et al.,
Defendants - Appellees.
No. 09-15545
D.C. No. 3:07-cv-04089-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Lynnard A. Smith, 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 administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
FILED
JAN 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-15545 2
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We vacate and remand.
The district court concluded that Smith’s June 5, 2005 grievance could not
serve to exhaust administrative remedies with respect to his First Amendment
retaliation claim because Smith did not properly present his retaliation claim until
October 20, 2005, four months after his grievance was filed. However, it appears
that the handwritten pages signed June 5, 2005, appended to the grievance form
and complaining that Davis’s conduct was a “direct reprisal” against him, predated
the October 20, 2005 allegations. Thus, we are in doubt as to exhaustion.
Accordingly, we vacate and remand for further proceedings to allow the district
court to reexamine whether Smith properly exhausted his retaliation claim.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

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