                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 17 2012

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




                             FOR THE NINTH CIRCUIT



BOBBY SHANE CHARLTON,                            No. 11-35147

               Plaintiff - Appellant,            D.C. No. 6:09-cv-01246-TC

  v.
                                                 MEMORANDUM *
OREGON DEPARTMENT OF
CORRECTION; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Former Oregon state prisoner Bobby Shane Charlton appeals pro se from the

district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action

for failure to exhaust administrative remedies under the Prison Litigation Reform


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We

vacate and remand.

      The district court dismissed for failure to exhaust administrative remedies

after interpreting a statement in Charlton’s motion for extension of time as a

concession to nonexhaustion. However, Charlton later clarified that his statement

had been misinterpreted and that he did not in fact concede nonexhaustion.

Charlton also did not have the opportunity to oppose defendants’ motion to dismiss

before the district court dismissed for nonexhaustion. Accordingly, we vacate the

judgment, and remand for further proceedings consistent with our disposition,

including for the district court to allow Charlton an opportunity to oppose

defendants’ motion to dismiss. See id. at 1119-20 & n.14 (defendants have burden

of raising and proving nonexhaustion, and plaintiff must be provided fair notice of

opportunity to develop a record before a dismissal for nonexhaustion).

      We decline to consider defendants’ alternate arguments, raised for the first

time on appeal, that Charlton’s operative complaint fails to state a claim. See

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

      We deny Charlton’s request to remand this case to a different magistrate

judge because the record does not indicate that the case presents the rare


                                          2                                       11-35147
circumstances necessary to warrant reassignment. See Hernandez v. City of El

Monte, 138 F.3d 393, 402-03 (9th Cir. 1998) (discussing factors for determining

whether reassignment is appropriate).

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




                                         3                                 11-35147
