                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 12 2011

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




                             FOR THE NINTH CIRCUIT



JOSEPH ANTONETTI,                                No. 10-15762

               Plaintiff - Appellant,            D.C. No. 2:07-cv-00162-KJD-LRL

  v.
                                                 MEMORANDUM *
MONIN; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Joseph Antonetti, a Nevada state prisoner, appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging numerous constitutional

violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (exhaustion); Barnett v.

          *
             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).
Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (Fed. R. Civ. P. 12(b)(6)

dismissal and summary judgment). We may affirm on any basis supported by the

record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in

part, reverse in part, and remand.

      Dismissal of Antonetti’s claims alleging deliberate indifference to his

serious medical needs, inadequate law library access, and the general use of batons,

was proper because Antonetti failed to exhaust administrative remedies. See

Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is

mandatory and requires adherence to administrative procedural rules); McKinney v.

Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring exhaustion of

administrative remedies prior to filing suit). We construe the dismissal of these

claims to be without prejudice. See Wyatt, 315 F.3d at 1120.

      However, dismissal for nonexhaustion of Antonetti’s claims alleging

excessive force and inadequate yard and exercise time between approximately

January 8, 2005 and November 15, 2005 was improper where Antonetti’s

grievances and appeals were accepted and processed by the prison at each level of

review. See id. at 1119 (§ 1997e(a) of the Prison Litigation Reform Act does not

impose a pleading requirement but a defense, and defendants have the burden of

raising and proving the absence of exhaustion); see also Griffin v. Arpaio, 557 F.3d


                                          2                                     10-15762
1117, 1120 (9th Cir. 2009) (the primary purpose of a grievance is to alert the

prison to a problem and facilitate its resolution, and a grievance suffices if it alerts

the prison to the nature of the wrong for which redress is sought).

      Regarding the exhausted meal-deprivation claims, defendants were not

entitled to qualified immunity at this stage of the proceedings because outstanding

questions remain as to how many meals he was denied, and it is possible that he

has asserted the violation of a clearly-established law. See Saucier v. Katz, 533

U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan,

555 U.S. 223 (2009); Foster v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (“There

is no question that an inmate’s Eighth Amendment right to adequate food is clearly

established.”); see also Kentucky v. Graham, 473 U.S. 159, 167 (1985) (individuals

sued in their official capacity are not entitled to any immunity other than sovereign

immunity).

      Finally, although the district court correctly concluded that the Eleventh

Amendment bars actions against state officials sued in their official capacities

when damages are sought, the Eleventh Amendment does not bar suits seeking

prospective relief against state officials. Dismissal was therefore improper as to

the claims for injunctive relief against defendants in their official capacities.




                                            3                                       10-15762
      Accordingly, we reverse the district court’s judgment and remand for further

proceedings consistent with this disposition.

      Antonetti’s remaining contentions are unpersuasive.

      Antonetti’s request for judicial notice is denied. See Fed. R. Evid. 201(b).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                          4                                   10-15762
