Brown v. Day

Full title: Keith A. BROWN, Plaintiff--Appellant, v. Rick DAY; et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 16, 2002

42 F. App'x 977 (9th Cir. 2002)

Opinion

42 Fed.Appx. 977 (9th Cir. 2002) Keith A. BROWN, Plaintiff--Appellant, v. Rick DAY; et al., Defendants--Appellees. No. 01-36064. United States Court of Appeals, Ninth Circuit. August 16, 2002

Submitted August 12, 2002 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief Judge, Presiding. D.C. No. CV-01-19-DWM.

Before: SCHROEDER, Chief Judge, TASHIMA and RAWLINSON, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Keith A. Brown, a Montana state prisoner, appeals pro se the district court's judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 280 F.3d 1238, 1244-45 (9th Cir.2002), and we vacate and remand.

In light of our recent decision in Wyatt, we vacate and remand for further proceedings because it is not clear on the face of the pleadings that Brown failed to exhaust administrative remedies. See id. at 1246 (holding that failure to exhaust is an affirmative defense where the face of the complaint and exhibits thereto do not establish a failure to exhaust).

Because we vacate under Wyatt, we do not address appellant's other contentions.

All pending motions are denied as moot.

VACATED and REMANDED.