Bobby Charlton v. Oregon Department of Correctio

MEMORANDUM

Former Oregon state prisoner Bobby Shane Charlton appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 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.

The district court dismissed for failure to exhaust administrative remedies after interpreting a statement in Charlton’s motion for extension of time as a concession to nonexhaustion. However, Charlton later clarified that his statement had been misinterpreted and that he did not in fact concede nonexhaustion. Charlton also did not have the opportunity to oppose defendants’ motion to dismiss before the district court dismissed for nonexhaustion. Accordingly, we vacate the judgment, and remand for further proceedings consistent with our disposition, including for the district court to allow Charlton an opportunity to oppose defendants’ motion to dismiss. See id. at 1119-20 & n. 14 (defendants have burden of raising and proving nonex-haustion, and plaintiff must be…