                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 25 2012

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




                             FOR THE NINTH CIRCUIT



JAMES W. COVERT,                                 No. 10-16134

               Plaintiff - Appellant,            D.C. No. 4:06-cv-06626-SBA

  v.
                                                 MEMORANDUM *
D. GRAHAM, CDCR Lieutenant;
R. HARRISON, CDCR Sergeant,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                            Submitted January 17, 2012 **

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       James W. Covert, 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.

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

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

be dismissed for failure to exhaust administrative remedies. Covert stated in his

sworn declaration in opposition to the motion to dismiss that he attempted to file

appeals at the second level of review for his May 6, 2005 grievance, and that these

appeals were never properly processed. Defendants relied on a declaration by

appeals coordinator Padilla that does not explain the prison’s record keeping

methods or otherwise address how attempted inmate appeals are tracked or

handled. See id. at 1116-17, 1119-20 (an incomplete record is inadequate to

establish nonexhaustion). Accordingly, we vacate the judgment and remand for

further proceedings.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




                                          2                                     10-16134
