                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 03 2010

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




                             FOR THE NINTH CIRCUIT



MATTHEW LOUIS JOHNSON,                            No. 09-55490

               Plaintiff - Appellant,             D.C. No. 3:08-cv-00080-DMS-
                                                  POR
   v.

DARR, Correctional Officer,                       MEMORANDUM *

               Defendant - Appellee.



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

                             Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Matthew Louis Johnson, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure 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).

PDM/Research
exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42

U.S.C. § 1997e(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review

de novo the district court’s dismissal for failure to exhaust, and review for clear

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

2003). We affirm in part, vacate in part, and remand.

       The district court properly dismissed the action because Johnson did not

complete the prison grievance process prior to filing suit. See Woodford v. Ngo,

548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” under § 1997e(a) is

mandatory and requires adherence to administrative procedural rules). However,

we vacate the judgment and remand for the limited purpose of entering dismissal

without prejudice. See Wyatt, 315 F.3d at 1120 (providing that dismissals for

failure to exhaust administrative remedies are without prejudice).

       Johnson’s remaining contentions are unpersuasive.

       Contrary to appellee’s contention, the district court did not abuse its

discretion by concluding Johnson’s action was not frivolous. See Denton v.

Hernandez, 504 U.S. 25, 33 (1992) (reviewing for abuse of discretion

frivolousness determinations under 28 U.S.C. § 1915(e)(2)).

       Each party shall bear its own costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.


PDM/Research                               2                                     09-55490
