                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 08 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DUANE RONALD BELANUS,                            No. 13-35706

               Plaintiff - Appellant,            D.C. No. 6:12-cv-00065-DLC

  v.
                                                 MEMORANDUM*
LEO DUTTON; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Montana state prisoner Duane Ronald Belanus appeals pro se from the

district court’s judgment dismissing for failure to exhaust administrative remedies

his 42 U.S.C. § 1983 action alleging that defendants failed to protect him during

his pretrial detainment. We have jurisdiction under 28 U.S.C. § 1291. We review

          *
             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).
de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28

U.S.C. § 1915A). We reverse and remand.

      Although Belanus’s failure to exhaust is clear from the face of the amended

complaint, the district court erred in concluding at this early stage of the

proceedings, before defendants have appeared, that administrative remedies were

available to Belanus. See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014)

(en banc) (holding that it is defendant’s burden to prove that there was an available

administrative remedy that the inmate failed to exhaust); see also Sapp v. Kimbrell,

623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not required where administrative

remedies are “effectively unavailable”). Accordingly, because dismissal for failure

to exhaust was premature, we reverse the judgment and remand for further

proceedings.

      REVERSED and REMANDED.




                                           2                                   13-35706
