                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 30 2009

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




                             FOR THE NINTH CIRCUIT

MICHAEL JAMES HICKS,                             No. 08-17085

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01146-SI

  v.
                                                 MEMORANDUM *
M. S. EVANS, Warden, Salinas Valley
State Prison,

               Defendant - Appellee.

                     Appeal from the United States District Court
                        for the Northern District of California
                    Susan Yvonne Illston, District Judge, Presiding

                             Submitted October 20, 2009 **


Before:        SKOPIL, LEAVY, and T.G. NELSON, Circuit Judges.

       California state prisoner Michael James Hicks appeals pro se from the

district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action

for failure to exhaust his administrative remedies. We reverse and remand for

further proceedings.

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

      The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner

to exhaust available administrative remedies before bringing a federal action

concerning prison conditions. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.

2009). Hicks indicated in his complaint that he did not appeal his grievance

beyond the second level of prison review. Ordinarily, a district court could rely on

such a concession to dismiss a prisoner’s action. See Wyatt v. Terhune, 315 F.3d

1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion is a valid

ground for dismissal, so long as no exception to exhaustion applies.”).

      In this instance, however, the record shows that Hicks’ grievance was

granted at the second level and therefore he was not required to seek additional

administrative review. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)

(“[A] prisoner need not press on to exhaust further levels of review once he has . . .

received all ‘available’ remedies at an intermediate level of review.”). The district

court therefore erred by sua sponte dismissing the action.

      REVERSED AND REMANDED.1




      1
             Hicks’ pending motions are denied as moot.

                                           2
