FILED
NOT FOR PUBLICATION AUG 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ANTHONY JONES, No. 12-17484
Plaintiff - Appellant, D.C. No. 1:08-cv-00069-LJO-
GBC
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
CORRECTIONS; KENNETH CLARK,
Warden; COUCH, CDC ISU Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 10, 2014
San Francisco, California
Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.
Appellant Mark Jones, a California state prisoner, appeals from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust
administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1997e. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal for failure to exhaust, Sapp v. Kimbrell, 623 F.3d 813,
821 (9th Cir. 2010), and for an abuse of discretion its decision whether to hold an
evidentiary hearing. Stewart v. Cate, No. 10-55985, 2014 WL 1707033, at *3 (9th
Cir. May 1, 2014). We reverse and remand.
Without holding an evidentiary hearing, the district court dismissed the
action for failure to exhaust administrative remedies because Jones did not take
proper steps to alert prison officials to his retaliation claim. Although the court
acknowledged Jones’s formal first-level grievance, it held that the grievance did
not alert prison officials to the claims that Jones alleged in his § 1983 action
because it did not include information about Office Couch’s threat.
We agree that the formal-first-level complaint does not allege retaliation.
Nevertheless, Jones’s January 10, 2012 declaration states that he exhausted his
retaliation claim by including it in a grievance 602. Whether Jones actually filed a
grievance 602, and whether the grievance alleged retaliation are material factual
questions that were not readily ascertainable from the parties’ declarations. Albino
v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (“[F]actual questions
relevant to exhaustion should be decided by the judge, in the same manner a judge
rather than a jury decides disputed factual questions relevant to jurisdiction and
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venue.”). Because district courts should hear oral testimony where, as here,
“factual questions [are] not readily ascertainable from the declarations of witnesses
or questions of credibility predominate,” the district court abused its discretion by
failing to conduct an evidentiary hearing. United Commercial Ins. Serv., Inc. v.
Paymaster Corp., 962 F.2d 853, 858 (9th Cir. 1992).
Accordingly, we REVERSE the judgment of the district court and
REMAND for an evidentiary hearing on exhaustion and such further proceedings
as may be necessary on the merits of Jones’s claims.
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