                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 22 2010

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




                             FOR THE NINTH CIRCUIT



MARCOS C. GUILLEN,                               No. 08-17308

               Plaintiff - Appellant,            D.C. No. 5:06-cv-05176-RMW

  v.
                                                 MEMORANDUM *
ROCHA, Correctional Officer,

               Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                           Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       California state prisoner Marcos C. Guillen appeals pro se from the district

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

failure to exhaust administrative remedies as required by the Prison Litigation

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

          *
             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).
U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th

Cir. 2003) (dismissal for failure to exhaust administrative remedies); Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28

U.S.C. § 1915(e)). We vacate and remand.

      The district court determined at screening that Guillen did not properly

exhaust administrative remedies because he stated in his complaint that he did not

appeal his grievances to the highest level of administrative review. However,

Guillen contends that prison officials improperly screened his grievances,

preventing him from appealing to the highest level. We recently clarified that

improper screening of an inmate’s grievances renders administrative remedies

“effectively unavailable” such that exhaustion is not required under the PLRA.

Sapp v. Kimbrell, No. 05-15745, WL 3733581, at *10 (9th Cir. Sept. 27, 2010).

Moreover, defendants bear the burden of raising and proving failure to exhaust

administrative remedies. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).

We therefore cannot say at this early juncture that Guillen failed to exhaust all

available administrative remedies. See id. at 1120 (“A prisoner’s concession to

nonexhaustion is a valid ground for dismissal, so long as no exception to

exhaustion applies.”).




                                           2                                     08-17308
Guillen shall bear his own costs on appeal.

VACATED and REMANDED.




                                   3          08-17308
