                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TERRY PAUL HEDIN,                               No.    16-36056

                Plaintiff-Appellant,            D.C. No. 3:14-cv-01504-CL

 v.
                                                MEMORANDUM*
HAUN D. CASTILLO, Regional Director,
Western Region, in his individual capacity;
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                       Argued and Submitted May 14, 2018
                                Portland, Oregon

Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.

      Terry Paul Hedin, an inmate of Federal Correctional Institute, Sheridan

(“FCI Sheridan”), appeals the district court’s order granting summary judgment in

favor of Haun D. Castillo, Marion Feather, Richard Kowalczck, and Daniel

Williams (collectively, “Defendants”) on Hedin’s claims under Bivens v. Six



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Unknown Named Agents, 403 U.S. 388 (1971), the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and the Federal Tort Claims Act

(“FTCA”), 28 U.S.C § 2674 et seq. Because the parties are familiar with the facts,

we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse in part, vacate in part, and remand.

      I.       PLRA Exhaustion

      The Prison Litigation Reform Act provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any . . . correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

The district court adopted the magistrate judge’s Findings & Recommendation

(“F&R”), which concluded that Hedin had failed to exhaust his administrative

remedies because it was undisputed that the Bureau of Prisons (“BOP”) General

Counsel never decided Hedin’s three BP–11 appeals on the merits. See 28 C.F.R.

§ 542.15(a).

      The PLRA’s “edict” of exhaustion “contains one significant qualifier”—

namely, “the remedies must indeed be ‘available’ to the prisoner.” Ross v. Blake,

136 S. Ct. 1850, 1856 (2016). Thus, “an inmate is required to exhaust those, but

only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for

the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731,


                                           2
738 (2001)). Otherwise, the “inmate’s obligation to exhaust” is absolute. Id. at

1856.

        In this case, there is a genuine issue of material fact whether Hedin properly

mailed his three BP–11 appeals from FCI Sheridan to the General Counsel in

Washington, D.C. This fact is material because if Hedin properly mailed his BP–

11 appeals, it gives rise to an inference that BOP staff—either at FCI Sheridan or

at the Central Office in Washington, D.C.—improperly failed to process them.1

“When prison officials improperly fail to process a prisoner’s grievance, the

prisoner is deemed to have exhausted available administrative remedies.” Andres

v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017) (per curiam).2 “In such

circumstances, prison officials have ‘thwart[ed] inmates from taking advantage of

[the] grievance process,’ making that process unavailable.” Id. (quoting Ross, 136

S. Ct. at 1859) (alterations in original). Accordingly, we reverse the district court’s




1
  The F&R did not consider this disputed fact to be material because “all of
[Hedin]’s other remedies were properly processed and reported.” But the fact that
Hedin’s BP–9 requests, which are processed by FCI Sheridan staff, and Hedin’s
BP–10 requests, which are processed by the BOP Regional Office, were all
“properly processed and reported” has no bearing on whether Hedin’s BP–11
appeals were “properly processed and reported” by the Central Office.
2
  Given the time and resources spent addressing exhaustion and the fact that Hedin
presented copies of three completed BP–11 appeals, the BOP could consider
deeming Hedin’s BP–11 appeals filed in this particular case.


                                           3
grant of summary judgment on the issue of exhaustion and remand for further

proceedings.

        II.    Failure to State a Claim

        In light of our holding, we need not reach the merits of Hedin’s claims. In

the event there was exhaustion or exhaustion is assumed, it was improper to

dismiss the claims with prejudice and without leave to amend.3 See McKinney v.

Carey, 311 F.3d 1198, 1200–01 (9th Cir. 2002) (“Requiring dismissal without

prejudice when there is no presuit exhaustion provides a strong incentive that will

further [the] Congressional objectives [of the PLRA].”); Schucker v. Rockwood,

846 F.2d 1202, 1203–04 (9th Cir. 1988) (per curiam) (“Dismissal of a pro se

complaint without leave to amend is proper only if it is ‘absolutely clear that the

deficiencies of the complaint could not be cured by amendment.’” (quoting Noll v.

Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (internal quotation marks omitted))).

Accordingly, we vacate and remand the portion of the district court’s order

dismissing Hedin’s suit for failure to state a claim.

        REVERSED in part, VACATED in part, and REMANDED.




3
    Unless, as indicated below, amendment would be futile.

                                           4
