                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 17 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RALPH KELLY HAWTHORNE, Jr.,                      No. 10-15571

               Plaintiff - Appellant,            D.C. No. 1:07-cv-01101-OWW-
                                                 DLB
  v.

KATHY MENDOZA-POWER;                             MEMORANDUM *
K. HENRY,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

       Ralph Kelly Hawthorne, Jr., a California state prisoner, appeals pro se 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.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we vacate and remand.

      The district court found that Hawthorne failed to file any administrative

grievances after the date of the events alleged in his complaint. However,

Hawthorne had already fully exhausted administrative remedies for a grievance

complaining of access to the prison law library and related problems. We recently

decided in Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), that “it [is not] the

prisoner’s responsibility to ensure that prison officials actually provide the relief

that they have promised.” Id. at 685 (citing Abney v. McGinnis, 380 F.3d 663, 669

(2d Cir. 2004) (“A prisoner who has not received promised relief is not required to

file a new grievance where doing so may result in a never-ending cycle of

exhaustion.”)). Accordingly, we vacate the district court’s judgment and remand

for consideration of whether Hawthorne’s grievance served to exhaust

administrative remedies for any of his federal claims.

      We do not consider factual allegations and arguments raised for the first

time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      We deny Hawthorne’s motion for a court order filed on June 10, 2010.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.


                                            2                                    10-15571
