                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 03 2010

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




                             FOR THE NINTH CIRCUIT



KEVIN G. ROBY,                                    No. 09-15603

               Plaintiff - Appellant,             D.C. No. 5:08-cv-01113-JF

   v.
                                                  MEMORANDUM *
T. STEWART, Sergeant; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Northern District of California
                       Jeremy Fogel, District Judge, Presiding

                             Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Kevin G. Roby, 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


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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

PDM/Research
administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo the district court’s dismissal for failure to exhaust, and for clear error its

factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and

we vacate and remand.

       Defendants have not met their burden of proving that Roby’s action should

be dismissed for failure to exhaust administrative remedies. They failed

adequately to address Roby’s sworn affidavit that a prison official told him that he

need not pursue administrative appeals about being double-celled and attacked by

his cellmate in 2005. See Marella v. Terhune, 562 F.3d 983, 985 (9th Cir. 2009)

(per curiam) (holding that the district court erred in dismissing prisoner’s

complaint for failure to exhaust administrative remedies where the prisoner was

informed that the appeals process was unavailable to him); Brown v. Valoff, 422

F.3d 926, 935 (9th Cir. 2005) (“[A] prisoner need not press on to exhaust further

levels of review once he has either received all ‘available’ remedies at an

intermediate level of review or been reliably informed by an administrator that no

remedies are available.”); Wyatt, 315 F.3d at 1119 (“[D]efendants have the burden

of raising and proving the absence of exhaustion.”).

       VACATED and REMANDED.


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