                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KENNETH A. WEBB,                                No.    16-55652

                Plaintiff-Appellant,            D.C. No. 2:15-cv-08807-SVW-SS

 v.
                                                MEMORANDUM*
SECRETARY U.S. ARMY,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                             Submitted May 8, 2017**

Before:      REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

      Kenneth A. Webb appeals pro se from the district court’s order dismissing

his action against the Secretary of the United States Army. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.

12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
vacate in part, and remand.

      The district court properly dismissed Webb’s action because Webb failed to

allege facts sufficient to show that he had exhausted his administrative remedies or

was excused from exhaustion. See Muhammad v. Sec’y of Army, 770 F.2d 1494,

1495 (9th Cir. 1985) (military personnel are required to exhaust available

intraservice remedies before seeking judicial review); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (complaint must offer more than “naked assertions

devoid of further factual enhancement” (citation, internal quotation marks, and

alterations omitted)). Because a dismissal for failure to exhaust administrative

remedies should be without prejudice, see O’Guinn v. Lovelock Corr. Ctr., 502

F.3d 1056, 1063 (9th Cir. 2007), we vacate the judgment in part and remand for the

district court to dismiss Webb’s action without prejudice.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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