                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 12 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARK ANTHONY JONES,                              No. 12-17484

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00069-LJO-
                                                 GBC
  v.

CALIFORNIA DEPARTMENT OF                         MEMORANDUM*
CORRECTIONS; KENNETH CLARK,
Warden; COUCH, CDC ISU Officer,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted April 10, 2014
                            San Francisco, California

Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.

       Appellant Mark Jones, a California state prisoner, appeals 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.
§ 1997e. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal for failure to exhaust, Sapp v. Kimbrell, 623 F.3d 813,

821 (9th Cir. 2010), and for an abuse of discretion its decision whether to hold an

evidentiary hearing. Stewart v. Cate, No. 10-55985, 2014 WL 1707033, at *3 (9th

Cir. May 1, 2014). We reverse and remand.

      Without holding an evidentiary hearing, the district court dismissed the

action for failure to exhaust administrative remedies because Jones did not take

proper steps to alert prison officials to his retaliation claim. Although the court

acknowledged Jones’s formal first-level grievance, it held that the grievance did

not alert prison officials to the claims that Jones alleged in his § 1983 action

because it did not include information about Office Couch’s threat.

      We agree that the formal-first-level complaint does not allege retaliation.

Nevertheless, Jones’s January 10, 2012 declaration states that he exhausted his

retaliation claim by including it in a grievance 602. Whether Jones actually filed a

grievance 602, and whether the grievance alleged retaliation are material factual

questions that were not readily ascertainable from the parties’ declarations. Albino

v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (“[F]actual questions

relevant to exhaustion should be decided by the judge, in the same manner a judge

rather than a jury decides disputed factual questions relevant to jurisdiction and


                                           2
venue.”). Because district courts should hear oral testimony where, as here,

“factual questions [are] not readily ascertainable from the declarations of witnesses

or questions of credibility predominate,” the district court abused its discretion by

failing to conduct an evidentiary hearing. United Commercial Ins. Serv., Inc. v.

Paymaster Corp., 962 F.2d 853, 858 (9th Cir. 1992).

      Accordingly, we REVERSE the judgment of the district court and

REMAND for an evidentiary hearing on exhaustion and such further proceedings

as may be necessary on the merits of Jones’s claims.




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