Michael Hicks v. M.S. Evans

MEMORANDUM

California state prisoner Michael James Hicks appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust his administrative remedies. We reverse and remand for further proceedings.

DISCUSSION

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to exhaust available administrative remedies before bringing a federal action concerning prison conditions. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.2009). Hicks indicated in his complaint that he did not appeal his grievance beyond the second level of prison review. Ordinarily, a district court could rely on such a concession to dismiss a prisoner’s action. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003) (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal, so long as no exception to exhaustion applies.”).

In this instance, however, the record shows that Hicks’ grievance was granted at the second level and therefore he was not required to seek additional administrative review. See Brown v. Valoff 422 F.3d 926, 935 (9th Cir.2005) (“[A] prisoner need not press on to exhaust further levels of…