Susan Polk v. James Cavin

MEMORANDUM

Susan Mae Polk, a California state prisoner, appeals pro se from the district court’s judgment in her 42 U.S.C. § 1983 action alleging that defendants used excessive force and violated her right to access the courts. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (failure to exhaust administrative remedies); Ervin v. Los Angeles County, 848 F.2d 1018, 1019 (9th Cir.1988) (statute of limitations and equitable tolling). We vacate in part, reverse in part, and remand.

The district court dismissed Polk’s claims against the state defendants because Polk did not exhaust administrative remedies at the final level of review until after she had filed her federal action. However, Polk’s grievance was granted at the first level of review. In light of our recent decision, Harvey v. Jordan, 605 F.3d 681 (9th Cir.2010), Polk “ha[d] no obligation to appeal from a grant of relief ... in order to exhaust [her] administrative remedies.... Nor is it [her] responsi bility to ensure that prison officials actually provide the relief they have promised.” Id. at 685 . Accordingly, we vacate and remand for further…