                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 03 2013

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




                              FOR THE NINTH CIRCUIT



KIMIKO RANSOME,                                   No. 12-15516

                Plaintiff - Appellant,            D.C. No. 1:10-cv-02317-GSA

  v.
                                                  MEMORANDUM *
L. LONGERO, Correctional Officer; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Gary S. Austin, Magistrate Judge, Presiding **

                            Submitted December 19, 2012 ***

Before:         GOODWIN, WALLACE, and FISHER, Circuit Judges.

       California state prisoner Kimiko Ransome appeals pro se from the district

court’s judgment dismissing sua sponte her 42 U.S.C. § 1983 action for failure to


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

          **
            Ransome consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
exhaust administrative remedies under the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s dismissal for failure to exhaust

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

We vacate and remand.

      Dismissal before defendant’s appearance in the case was improper because

Ransome alleged in her complaint that she had completed the prison grievance

process and exhausted her available administrative remedies prior to filing suit.

See Jones v. Bock, 549 U.S. 199, 214-16 (2007) (exhaustion is an affirmative

defense and sua sponte dismissal for failure to exhaust administrative remedies

under the PLRA is only appropriate if, taking the prisoner’s factual allegations as

true, the complaint establishes her failure to exhaust).

      VACATED and REMANDED.




                                           2                                   12-15516
