Kenneth Webb v. Secretary U.S. Army

690 F. App'x 1014

Opinion

MEMORANDUM **

Kenneth A. Webb appeals pro se from the district court’s order dismissing his action against the Secretary of the United States Army. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and remand.

The district court properly dismissed Webb’s action because Webb failed to allege facts sufficient to show that he had exhausted his administrative remedies or was excused from exhaustion. See Muham mad v. Sec’y of Army, 770 F.2d 1494, 1495 (9th Cir. 1985) (military personnel are required to exhaust available intraservice remedies before seeking judicial review); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (complaint must offer more than “naked assertions devoid of further factual enhancement” (citation, internal quotation marks, and alterations omitted)). Because a dismissal for failure to exhaust administrative remedies should be without prejudice, see O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 (9th Cir. 2007), we vacate the judgment in part and remand for the district court to dismiss Webb’s action without prejudice.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

** This disposition is not appropriate for publi- . cation and is not precedent except as provided by Ninth Circuit Rule 36-3.