Dominguez

MEMORANDUM **

California state prisoner Larry Dominguez appeals pro se the district court’s dismissal of his action without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291 . We review the district court’s determination that a prisoner failed to exhaust de novo and its findings of fact for clear error. Ngo v. Woodford, 403 F.3d 620, 622 (9th Cir.2005). We vacate the order of dismissal and remand.

The district court decided this case before our decision in Ngo v. Woodford, 403 F.3d 620 . In this case, as in Ngo , Dominguez’s appeal was rejected by the prison as untimely, and he challenged the untimeliness finding; this was sufficient to exhaust available administrative remedies. See id. at 625 (noting that after the Appeals Coordinator rejected a California state prisoner’s challenge regarding the timeliness of his grievance, the prisoner-plaintiff “could go no further in the prison’s administrative system; no remedies remained available to him”).

In addition, the Ngo court rejected defendants’ contention that a civil action should be barred based on procedural default where a…