                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 12 2012

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




                             FOR THE NINTH CIRCUIT



LYNNARD A. SMITH,                                No. 09-15545

               Plaintiff - Appellant,            D.C. No. 3:07-cv-04089-JSW

  v.
                                                 MEMORANDUM *
STEVEN G. DAVIS; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Lynnard A. Smith, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to

exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.




          *
             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).
§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We vacate and remand.

      The district court concluded that Smith’s June 5, 2005 grievance could not

serve to exhaust administrative remedies with respect to his First Amendment

retaliation claim because Smith did not properly present his retaliation claim until

October 20, 2005, four months after his grievance was filed. However, it appears

that the handwritten pages signed June 5, 2005, appended to the grievance form

and complaining that Davis’s conduct was a “direct reprisal” against him, predated

the October 20, 2005 allegations. Thus, we are in doubt as to exhaustion.

Accordingly, we vacate and remand for further proceedings to allow the district

court to reexamine whether Smith properly exhausted his retaliation claim.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




                                          2                                    09-15545
