Kevin G. ROBY, Plaintiff-Appellant, v. T. STEWART, Sergeant; et al., Defendants-Appellees, 368 F. App'x 830

MEMORANDUM Kevin G. Roby, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to 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 for clear error its factual determinations, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we vacate and remand.

Defendants have not met their burden of proving that Roby’s action should be dismissed for failure to exhaust administrative remedies. They failed adequately to address Roby’s sworn affidavit that a prison official told him that he need not pursue administrative appeals about being double-celled and attacked by his cellmate in 2005. See Marella v. Terhune, 568 F.3d 1024, 1026 (9th Cir.2009) (per curiam) (holding that the district court erred in dismissing prisoner’s complaint for failure to exhaust administrative remedies where the prisoner was informed that the appeals process was unavailable to him); Brown v.

Valoff, 422 F.3d 926, 935 (9th Cir.2005) (“[A] prisoner need not press on to exhaust further levels of review once he has either received all ‘available’ remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available.”); Wyatt, 315 F.3d at 1119 (“[Defendants have the burden of raising and proving the absence of exhaustion.”). VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.