                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 15 2010

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




                             FOR THE NINTH CIRCUIT



MITCHELL WHITE,                                  No. 09-35221

               Plaintiff - Appellant,            D.C. No. 3:07-cv-01574-AC

  v.
                                                 MEMORANDUM *
GUY HALL; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Ancer L. Haggerty, District Judge, Presiding

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Mitchell White, an Oregon state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison



          *
             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).
officials violated his Eighth and Fourteenth Amendment rights. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to exhaust administrative remedies under the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a), and review for clear error its factual

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

affirm in part, reverse in part, and remand.

      The district court properly dismissed White’s claims concerning a program

failure report and requests for transfer because White failed to exhaust

administrative remedies prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 93-

95 (2006) (holding that “proper exhaustion” under section 1997e(a) is mandatory

and requires adherence to administrative procedural rules).

      However, the district court improperly determined that White failed to

exhaust administrative remedies for his medical care claim. Defendants issued a

Returned Grievance Form rejecting White’s grievance appeal and stating that

“[y]ou can not file a grievance/appeal on an issue that is currently pending a TORT

claim.” Because White was informed that the appeals process was unavailable to

him, he was not required to exhaust further levels of review. See Marella v.

Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (concluding that the

district court erred in dismissing prisoner’s complaint for failure to exhaust


                                           2                                     09-35221
administrative remedies where the prison’s grievance rejection form informed him

that the appeals process was unavailable to him). Accordingly, we reverse and

remand for further proceedings on this claim.

      White’s remaining contentions are unpersuasive.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                         3                                 09-35221
