Lewis v. Thor

56 F. App'x 364

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2003
• Docket: No. 02-16661; D.C. No. CV-02-02673-SI
• Status: Published

Opinion

MEMORANDUM

**

Mario Lewis, a California state prisoner, appeals pro se the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 complaint and action alleging that prison officials 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 Lewis’s action pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust his administrative remedies for at least two of his claims. We vacate and remand because we have since held that section 1997e(a) does not impose a pleading requirement on the inmate, but rather constitutes an affirmative defense that must be raised and proven by the defendants. See Wyatt v. Terhune, 315 F.3d 1108,1118-19 (9th Cir.2003).

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 provided by Ninth Circuit Rule 36-3.