Brown v. Day

42 F. App'x 977

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2002
• Docket: No. 01-36064
• Status: Published

Opinion

MEMORANDUM

**

Keith A. Brown, a Montana state prisoner, appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 280 F.3d 1238, 1244-45 (9th Cir.2002), and we vacate and remand.

In light of our recent decision in Wyatt, we vacate and remand for further proceedings because it is not clear on the face of the pleadings that Brown failed to exhaust administrative remedies. See id. at 1246 (holding that failure to exhaust is an affír-mative defense where the face of the complaint and exhibits thereto do not establish a failure to exhaust).

Because we vacate under Wyatt, we do not address appellant’s other contentions.

Al pending motions are denied as moot.

VACATED and REMANDED.

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