FILED
NOT FOR PUBLICATION MAY 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARRYL LLOYD WHITE, No. 10-15294
Plaintiff - Appellant, D.C. No. 2:08-cv-01302-JCM-RJJ
v.
MEMORANDUM *
GLEN WHORTON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Darryl Lloyd White, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice for
failure to exhaust administrative remedies as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo the district court’s application of substantive law, and for clear
error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003), and we vacate and remand.
The district court dismissed White’s action for failure to exhaust in reliance
on defendants’ submission of an unverified inmate appeal report. However, this
document, unaccompanied by a declaration describing its import or completeness,
is insufficient to meet the defendants’ burden to show nonexhaustion. See id. at
1120 (defendants’ “Appeal Record” document was insufficient to show
nonexhaustion where the accompanying affidavit did not state whether the inmate
had exhausted his appeals, and there was no evidence in the record establishing
that the report was a complete record of the inmate’s grievances, as defendants
represented). We therefore remand to the district court for further proceedings,
including an opportunity for both parties to offer additional evidence pertaining to
exhaustion.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 10-15294