NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD GARCIA, No. 18-15858
Plaintiff-Appellant, D.C. No. 1:17-cv-00865-LJO-JLT
v.
MEMORANDUM*
JOHN DOE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Richard Garcia, a New Mexico state prisoner formerly detained in
California, appeals pro se from the district court’s judgment dismissing his 42
U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We
reverse and remand.
Garcia alleged in the complaint that he submitted his grievance 28 days after
the event at issue, and that the prison improperly rejected his grievance as
untimely. Because it is not clear from the face of the complaint that Garcia failed
to exhaust available administrative remedies, sua sponte dismissal of Garcia’s
action for failure to exhaust administrative remedies was improper at this early
stage of the proceedings. See Cal. Code Regs. tit. 15, § 3084.8(b) (prisoner “must
submit the appeal within 30 calendar days of . . . [t]he occurrence of the event or
the decision being appealed”); Jones v. Bock, 549 U.S. 199, 214-15 (2007) (sua
sponte dismissal for failure to exhaust administrative remedies is only appropriate
if, taking the prisoner’s factual allegations as true, the complaint establishes the
prisoner’s failure to exhaust); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010)
(holding that “improper screening of an inmate’s administrative grievances renders
administrative remedies ‘effectively unavailable’ such that exhaustion is not
required”). We reverse and remand for further proceedings.
Garcia’s request for the court to order production of prison surveillance
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video, set forth in the opening brief, is denied without prejudice to renewing the
request before the district court on remand.
REVERSED and REMANDED.
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