NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON L. STRIBLING, No. 16-16562
Plaintiff-Appellant, D.C. No. 2:16-cv-00400-CKD
v.
MEMORANDUM*
R. MOTT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding**
Submitted May 8, 2017***
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
California state prisoner Aaron L. Stribling appeals pro se from the district
court’s judgment dismissing for failure to prosecute his 42 U.S.C. § 1983 action
alleging excessive force and deliberate indifference to his serious medical needs.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Stribling consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). We
vacate and remand.
Because the record shows that Stribling stood on his complaint, the district
court abused its discretion in converting its 28 U.S.C. § 1915A screening dismissal
with leave to amend into a sanction under Federal Rule of Civil Procedure 41(b)
for failing to comply with a court order. See Edwards, 356 F.3d at 1064-65
(dismissal under Rule 41(b) is not appropriate where the plaintiff makes an
affirmative choice not to amend the complaint).
Moreover, the district court improperly determined that Stribling failed to
exhaust his administrative remedies because Stribling alleged he had grieved his
claims but could not complete the process because he had not received a timely
response to his second level appeal. See Jones v. Bock, 549 U.S. 199, 204, 216
(2007) (exhaustion is an affirmative defense that ordinarily should be raised and
proved by the defendant); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en
banc) (the state bears the burden of proving that a prisoner did not exhaust
available administrative remedies); see also Sapp v. Kimbrell, 623 F.3d 813, 822-
23 (9th Cir. 2010) (exhaustion is not required where administrative remedies are
2 16-16562
“effectively unavailable” because an appeal is improperly screened). Because an
exhaustion defense is not obvious from the face of Stribling’s complaint, we vacate
the judgment and remand for further proceedings.
Stribling’s motion (Docket Entry No. 6) is denied as moot.
VACATED and REMANDED.
3 16-16562