NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 5 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD GARCIA, No. 18-15858

Plaintiff-Appellant, D.C. No. 1:17-cv-00865-LJO-JLT

v.

MEMORANDUM*

JOHN DOE,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Richard Garcia, a New Mexico state prisoner formerly detained in

California, appeals pro se from the district court’s judgment dismissing his 42

U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

* 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). 2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We

reverse and remand.

Garcia alleged in the complaint that he submitted his grievance 28 days after

the event at issue, and that the prison improperly rejected his grievance as

untimely. Because it is not clear from the face of the complaint that Garcia failed

to exhaust available administrative remedies, sua sponte dismissal of Garcia’s

action for failure to exhaust administrative remedies was improper at this early

stage of the proceedings. See Cal. Code Regs. tit. 15, § 3084.8(b) (prisoner “must

submit the appeal within 30 calendar days of . . . [t]he occurrence of the event or

the decision being appealed”); Jones v. Bock, 549 U.S. 199, 214-15 (2007) (sua

sponte dismissal for failure to exhaust administrative remedies is only appropriate

if, taking the prisoner’s factual allegations as true, the complaint establishes the

prisoner’s failure to exhaust); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010)

(holding that “improper screening of an inmate’s administrative grievances renders

administrative remedies ‘effectively unavailable’ such that exhaustion is not

required”). We reverse and remand for further proceedings.

Garcia’s request for the court to order production of prison surveillance

2 18-15858 video, set forth in the opening brief, is denied without prejudice to renewing the

request before the district court on remand.

REVERSED and REMANDED.

3 18-15858