                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          NOV 02 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

JACOB HOWARD,                                    No. 10-56241

               Plaintiff - Appellant,            D.C. No. 2:01-cv-05689-JFW-CW

  v.
                                                 MEMORANDUM *
BERNADETTE GAMBINO, LA Sheriff
Dept Chief Medical Officer LA County
Jail; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Jacob Howard appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference to




          *
             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).
his serious medical needs while a pretrial detainee at Los Angeles County Jail. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to exhaust under the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a) (“PLRA”). Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We

reverse and remand.

      Defendants have not met their burden of proving that Howard’s action

should be dismissed for failure to exhaust administrative remedies, where they

relied on a declaration by their attorney stating that she reviewed documents

contained in her office file, rather than conducting a complete search of the jail’s

tracking system for inmate grievances and their dispositions. See id. at 1116-17,

1119-20 (the PLRA does not impose a pleading requirement but a defense, and an

incomplete record is inadequate to establish nonexhaustion). Defendants also

failed adequately to address Howard’s arguments that he did not receive a response

to his excessive force grievance and that additional remedies were therefore

unavailable. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (concluding

that “a prisoner need not press on to exhaust further levels of review once he has []

received all ‘available’ remedies”). Accordingly, we reverse the judgment, and

remand for further proceedings.




                                           2                                    10-56241
      We do not consider arguments raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      REVERSED and REMANDED.




                                         3                                    10-56241
