                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 03 2011

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




                             FOR THE NINTH CIRCUIT



DARRYL LLOYD WHITE,                               No. 10-15294

               Plaintiff - Appellant,             D.C. No. 2:08-cv-01302-JCM-RJJ

  v.
                                                  MEMORANDUM *
GLEN WHORTON; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Darryl Lloyd White, a Nevada state prisoner, 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, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291.

          *
             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).
We review de novo the district court’s application of substantive law, and for clear

error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.

2003), and we vacate and remand.

      The district court dismissed White’s action for failure to exhaust in reliance

on defendants’ submission of an unverified inmate appeal report. However, this

document, unaccompanied by a declaration describing its import or completeness,

is insufficient to meet the defendants’ burden to show nonexhaustion. See id. at

1120 (defendants’ “Appeal Record” document was insufficient to show

nonexhaustion where the accompanying affidavit did not state whether the inmate

had exhausted his appeals, and there was no evidence in the record establishing

that the report was a complete record of the inmate’s grievances, as defendants

represented). We therefore remand to the district court for further proceedings,

including an opportunity for both parties to offer additional evidence pertaining to

exhaustion.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




                                          2                                    10-15294
