James W. COVERT, Plaintiff-Appellant, v. D. GRAHAM, CDCR Lieutenant; R. Harrison, CDCR Sergeant, Defendants-Appellees, 467 F. App'x 587

MEMORANDUM James W. Covert, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1988 action for failure to exhaust administrative remedies under the Prison Litigation Reform 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. Defendants have not met their burden of proving that Covert’s action should be dismissed for failure to exhaust administrative remedies.

Covert stated in his sworn declaration in opposition to the motion to dismiss that he attempted to file appeals at the second level of review for his May 6, 2005 grievance, and that these appeals were never properly processed. Defendants relied on a declaration by appeals coordinator Padilla that does not explain the prison’s record keeping methods or otherwise address how attempted inmate appeals are tracked or handled. See id. at 1116-17, 1119-20 (an incomplete record is inadequate to establish nonexhaustion). Accordingly, we vacate the judgment and remand for further proceedings.

The parties shall bear their own costs on appeal. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.