                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 KEVIN LAMARR ANDRES,                               No. 15-56057
               Plaintiff-Appellant,
                                                      D.C. No.
                       v.                          3:13-cv-01733-
                                                     DMS-BGS
 MARSHALL, Correctional Officer at
 RJ Donovan; R. OLSON, CCII
 Appeals Coordinator; J. RAMIREZ,                     OPINION
 CCII Appeals Coordinator; BRIGGS,
 Chief of Appeals,
               Defendants-Appellees.



        Appeal from the United States District Court
           for the Southern District of California
         Dana M. Sabraw, District Judge, Presiding

                Submitted December 14, 2016 *

                       Filed April 21, 2017

         Before: J. Clifford Wallace, Edward Leavy,
          and Raymond C. Fisher, Circuit Judges.

                       Per Curiam Opinion

    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                     ANDRES V. MARSHALL

                          SUMMARY **


                      Prisoner Civil Rights

   The panel reversed the district court’s dismissal of a pro
se prisoner’s excessive force claim for failure to exhaust
administrative remedies under the Prison Litigation Reform
Act, vacated the judgment, and remanded for further
proceedings.

    After prison staff failed to respond to plaintiff’s
grievance alleging excessive force, plaintiff filed a petition
for writ of habeas corpus in state court regarding his attempt
to exhaust the claim. While the state court action was
pending, plaintiff filed the instant action alleging that
administrative remedies were unavailable because officials
failed to process his grievance. Subsequently, the state
habeas court held an evidentiary hearing and granted the
habeas petition, finding that plaintiff had timely filed a
grievance and ordering that the grievance be accepted and
processed. The district court subsequently dismissed the
excessive force claim, finding that exhaustion was not
complete at the time plaintiff filed the instant action.

     The panel held that under the circumstances, plaintiff
exhausted his available administrative remedies prior to
filing suit, thereby satisfying Ross v. Blake, 136 S. Ct. 1850,
1859 (2016), and McKinney v. Carey, 311 F.3d 1198 (9th
Cir. 2002). The panel held that when prison officials fail to
respond to a prisoner’s grievance within a reasonable time,

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   ANDRES V. MARSHALL                         3

the prisoner is deemed to have exhausted available
administrative remedies within the meaning of the Prison
Litigation Reform Act.


                         COUNSEL

Kevin Lamarr Andres, Imperial, California, pro se Plaintiff-
Appellant.

Sylvie P. Snyder and Neah Huynh, Deputy Attorneys
General; Jonathan L. Wolff, Senior Assistant Attorney
General; Office of the Attorney General, San Diego,
California; for Defendants-Appellees.


                          OPINION

PER CURIAM:

    California state prisoner Kevin Lamarr Andres appeals
pro se from the district court’s summary judgment in his
42 U.S.C. § 1983 action alleging excessive force. 1 We have
jurisdiction under 28 U.S.C. § 1291. We review de novo
legal rulings on exhaustion. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014). We vacate and remand.

    This action arises from Andres’ allegations that
defendant Marshall used excessive force against him on
January 23, 2013, while Andres was incarcerated at the
Donovan Correctional Facility (“DCF”). Two days after the
incident, Andres filed a 602 grievance regarding the alleged

   1
     We address Andres’ remaining claims in a concurrently filed
memorandum disposition.
4                   ANDRES V. MARSHALL

excessive force, but never received a response from DCF
staff.

    On April 4, 2013, Andres filed a petition for writ of
habeas corpus in state court regarding his attempt to exhaust
his excessive force claim. On July 24, 2013, Andres filed
his original complaint in the instant action, alleging, in part,
an excessive force claim and arguing that his administrative
remedies were effectively unavailable because DCF failed to
process his 602 grievance. On August 22, 2014, the state
habeas court held an evidentiary hearing and granted
Andres’ petition, finding that Andres had timely filed a
grievance and ordering DCF to accept and process Andres’
602 appeal.

    Following the grant of Andres’ habeas petition, the
parties requested that the district court take judicial notice of
the state habeas proceedings. In December 2014, the
magistrate judge recommended that the district court dismiss
the excessive force claim for failure to exhaust because
exhaustion was not complete at the time Andres filed this
action. In March 2015, the district court adopted the
magistrate judge’s recommendation and dismissed the claim
under McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).
The district court never formally ruled on the judicial notice
request, but the record makes clear that the court considered
the state court documents. We therefore treat those
documents as part of the record on appeal. In June 2015, the
district court entered judgment.

    The Prison Litigation Reform Act (“PLRA”) states that
“[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). In McKinney, we addressed the question of
                   ANDRES V. MARSHALL                        5

whether a district court must dismiss an action involving
prison conditions when the plaintiff had not exhausted his
administrative remedies prior to filing suit but was in the
process of doing so when a motion to dismiss was filed. See
id. at 1199. We concluded that exhausting available
remedies during the course of litigation did not comply with
§ 1997e(a)’s requirements and held that a plaintiff must
exhaust his administrative remedies prior to filing suit. See
id.

    We have also recognized that the PLRA does not require
exhaustion when circumstances render administrative
remedies “effectively unavailable.” Nunez v. Duncan,
591 F.3d 1217, 1226 (9th Cir. 2010). In Ross v. Blake, the
Supreme Court agreed, holding that § 1997e(a) requires an
inmate to exhaust only those grievance procedures “that are
capable of use to obtain some relief for the action
complained of.” 136 S. Ct. 1850, 1859 (2016) (citation and
internal quotation marks omitted). By way of a non-
exhaustive list, the Court recognized three circumstances in
which an administrative remedy was not capable of use to
obtain relief despite being officially available to the inmate:
(1) when the administrative procedure “operates as a simple
dead end” because officers are “unable or consistently
unwilling to provide any relief to aggrieved inmates”;
(2) when the administrative scheme is “so opaque that it
becomes, practically speaking, incapable of use” because
“no ordinary prisoner can discern or navigate it”; and
(3) when prison administrators “thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1859–60.

   Andres argues that his administrative remedies for his
excessive force claim were rendered effectively unavailable
by defendants’ actions. We agree. The state habeas court
6                  ANDRES V. MARSHALL

held an evidentiary hearing and found that defendants
improperly failed to process Andres’ timely filed grievance.
Under the circumstances present here, Andres exhausted his
available administrative remedies prior to filing suit, thereby
satisfying Ross and McKinney. When prison officials fail to
respond to a prisoner’s grievance within a reasonable time,
the prisoner is deemed to have exhausted available
administrative remedies within the meaning of the PLRA.
We reverse the district court’s dismissal of Andres’
excessive force claim for failure to exhaust, vacate the
judgment and remand for further proceedings.

    Appellees shall bear the costs on appeal.

    VACATED and REMANDED.
