Olney v. Hartwig

323 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2009
• Docket: No. 07-35233
• Status: Published

Opinion

MEMORANDUM

**

Jeffrey W. Olney, an Oregon state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we reverse and remand.

There is no indication that Olney’s grievance was rejected for the procedural bases urged by the defendants, thus they have not met their burden of demonstrating nonexhaustion. See id. at 1119 (“[D]e-fendants have the burden of raising and proving the absence of exhaustion.”). Accordingly, we reverse the district court’s judgment and remand for further proceedings.

REVERSED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.