                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 23 2016

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



                             FOR THE NINTH CIRCUIT


KEVIN DEON BRAZIER,                              No. 14-17476

               Plaintiff - Appellant,            D.C. No. 1:13-cv-00787-LJO-MJS

 v.
                                                 MEMORANDUM*
JEFFREY A. BEARD; et al.,

               Defendants - Appellees.


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

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      California state prisoner Kevin Deon Brazier appeals pro se from the district

court’s judgment dismissing for failure to exhaust administrative remedies his 42

U.S.C. § 1983 action arising from defendants’ failure to grant him a kosher meal

diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams

          *
             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).
v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust administrative

remedies); Kneivel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Fed. R. Civ. P.

12(b)(6) motion to dismiss). We vacate and remand.

      The district court concluded that Brazier failed to exhaust his administrative

remedies as mandated by the Prison Litigation Reform Act. However, it is not

clear from the face of the complaint and the exhibits attached to the complaint

whether Brazier failed to exhaust available administrative remedies because his

Second Level Appeal is not included in the record. 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, 211-217

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

and prove). Because defendants did not meet their burden of demonstrating that

Brazier failed to exhaust available administrative remedies, we vacate the judgment

and remand for further proceedings.

      Brazier’s motion requesting alternative dispute resolution, filed on

December 16, 2015, and motion for settlement conference, filed on February 16,

2016, are denied.


                                          2                                    14-17476
The parties shall bear their own costs on appeal.

VACATED and REMANDED.




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