                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 22 2010

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




                             FOR THE NINTH CIRCUIT



JOHN WASHINGTON,                                 No. 09-17216

               Plaintiff - Appellant,            D.C. No. 2:08-cv-00386-MCE-
                                                 CMK
  v.

SALEM MOHAMED, Chaplain of the                   MEMORANDUM *
CDC and Rehabilitation; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England, Jr., District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       John Washington, 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 the

district court’s dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108,

1117 (9th Cir. 2003), for clear error its factual determinations, id., and for an abuse

of discretion its decision whether to hold an evidentiary hearing, McLachlan v.

Bell, 261 F.3d 908, 910 (9th Cir. 2001). We vacate and remand.

      The district court denied Washington’s requests for an evidentiary hearing

and dismissed the action for failure to exhaust administrative remedies because,

considering the parties’ competing declarations, Washington could not show that it

was “more likely than not” that defendant Hilliard instructed him not to file an

administrative grievance. But defendant Hilliard had the burden of proving the

absence of exhaustion. Wyatt, 315 F.3d at 1120. Accordingly, we vacate and

remand for the district court to develop the record. See id. (vacating and

remanding for development of the record where the documents produced by

defendants were inadequate to establish failure to exhaust); see also Marella v.

Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (district court erred in

dismissing prisoner’s complaint for failure to exhaust where the prisoner was

informed that the appeals process was unavailable to him).

      Defendants shall bear the parties’ costs on appeal.

      VACATED and REMANDED.


                                           2                                    09-17216
