Henderson v. Schoville

56 F. App'x 406

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2003
• Docket: No. 01-57248; D.C. No. CV-00-12616-MMM
• Status: Published

Opinion

MEMORANDUM

**

Thomas Henderson, a California state prisoner, appeals pro se the district court’s judgment dismissing for failure to exhaust his administrative remedies in 42 U.S.C. § 1983 action, alleging defendants violated his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we vacate and remand.

The district court dismissed Henderson’s action pursuant to 42 U.S.C. § 1997e(a) because the exhibits attached to the complaint did not establish that Henderson exhausted his administrative remedies. We have since held that exhaustion under 42 U.S.C. § 1997e(a) is an affirmative defense rather than a pleading requirement. See Wyatt v. Terhune, 315 F.3d 1108,1119 (9th Cir.2003). Accordingly, we vacate the district court’s judgment and remand the matter for further proceedings.

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.