                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIEL JOSEPH BLOOR,                            No. 17-15072

                Plaintiff-Appellant,            D.C. No. 3:15-cv-00610-RCJ-VPC

 v.
                                                MEMORANDUM*
E. K. McDANIEL; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Daniel Joseph Bloor, a Nevada state prisoner, appeals pro se from the

district court’s judgment dismissing for failure to exhaust his administrative

remedies his 42 U.S.C. § 1983 action alleging a due process violation. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Andres v. Marshall, 867



      *
             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).
F.3d 1076, 1077 (9th Cir. 2017). We reverse and remand.

      The district court screened and dismissed Bloor’s complaint on the basis that

Bloor had not pursued his grievances beyond the first level as required under the

Prison Litigation Reform Act. However, Bloor alleged in his complaint that

defendants refused to respond to his grievance, and he argued in his motion for

reconsideration that his attempt to file a second-level grievance was rejected for

lack of documentation, which he could not provide because he attached it to his

prior, unanswered grievance. Thus, the district court erred in concluding at this

early stage of the proceedings, before defendants have appeared, that

administrative remedies were available to Bloor. See Albino v. Baca, 747 F.3d

1162, 1169 (9th Cir. 2014) (en banc) (“[O]nly in rare cases will a district court be

able to conclude from the face of the complaint that a prisoner has not exhausted

his administrative remedies and that he is without a valid excuse.” (citation and

internal quotation marks omitted)); see also Jones v. Bock, 549 U.S. 199, 211-17

(2007) (failure to exhaust is an affirmative defense which defendants must raise

and prove); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not

required where administrative remedies are “effectively unavailable”). We reverse

the judgment, and remand for further proceedings.

      REVERSED and REMANDED.




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