Blevins v. Garibay

48 F. App'x 274

Opinion

MEMORANDUM

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Marcus Dwayne Blevins, a California state prisoner, appeals pro se the district court’s judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging violation of his constitutional right to access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). We vacate and remand.

The district court properly dismissed the action for failure to exhaust administrative remedies. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Failure to exhaust administrative remedies, however, is a matter in abatement and should be raised in a Fed.R.Civ.P. 12(b) motion rather than in a summary judgment motion. Wyatt v. Terhune, 305 F.3d 1033 (9th Cir.2002). Accordingly, we vacate the judgment and remand to the district court to enter a dismissal without prejudice. See Stauffer Chemical Co. v. Food & Drug Admin., 670 F.2d 106, 108 (9th Cir.1982) (remanding to district court where summary judgment should have been treated as a motion to dismiss).

The parties shall bear their own costs on appeal.

VACATED AND REMANDED for entry of judgment dismissing without prejudice.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.