                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 20 2011

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




                            FOR THE NINTH CIRCUIT



DONALD HIXON,                                    No. 09-16979

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01150-PMP-RJJ

  v.
                                                 MEMORANDUM *
NEVADA DEPARTMENT OF
CORRECTIONS; PAUL HERMAN
CHAFFEE,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                            San Francisco, California

Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.

       Nevada state prisoner Donald Hixon appeals the district court’s denial of his

motion to reconsider its grant of summary judgment in favor of the Nevada

Department of Corrections (“NDOC”) and Paul Herman Chaffee in his 42 U.S.C. §

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1983 action asserting that prison officials used excessive force against him. This

court has jurisdiction under 28 U.S.C. § 1291 because a final judgment was entered

for defendants and against plaintiff on July 8, 2009.

      We review the denial of a motion for reconsideration for abuse of discretion.

Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004). Reconsideration is

proper if the district court (1) is presented with newly discovered evidence;

(2) committed clear error or the determination was manifestly unjust; or (3) an

intervening change in the law occurred. Id. We review de novo the dismissal of

claims for failure to exhaust remedies under the Prison Litigation Reform Act

(“PLRA”). Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003).

      We hold that the district court abused its discretion in denying Hixon’s

motion for reconsideration and reverse that ruling. Defendants disclosed evidence

related to the shooting investigation to Hixon in March 2009 after all summary

judgment motions and responses had been filed with the court. Because receipt of

the new evidence may impact whether defendants waived the administrative

remedy exhaustion requirement, it was error to deny the motion for

reconsideration. See Nunes, 375 F.3d at 807-08 (stating standard). Moreover,

Hixon was told that the shooting investigation would be handled only by the

Attorney General’s Office, that he was to speak only to the Attorney General’s


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Office regarding the incident, and that the investigation was outside the prison’s

province. Because Hixon was told the prison would not be handling the incident

and that all communications were to go only to the Attorney General’s Office, it is

likely that administrative remedies were effectively unavailable and exhaustion

was not required under the circumstances. See Sapp v. Kimbrell, 623 F.3d 813,

822-23 (9th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010).

Similarly, it is likely that there was not a failure to exhaust under Nevada Revised

Statute § 41.0322 since filing a grievance with the prison appeared futile. See

Malecon Tobacco, LLC v. State ex rel. Dep’t of Taxation, 59 P.3d 474, 476 (Nev.

2002).

         Therefore, we reverse and remand to the district court for reconsideration of

the cross-motions for summary judgment in light of Hixon’s new evidence.

         REVERSED and REMANDED.




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