Sheets

MEMORANDUM **

Daniel Dean Sheets, formerly an inmate at various California prisons, 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 vacate and remand for reconsideration in light of intervening case law.

Sheets alleges that law enforcement officers instructed him not to file grievances on certain claims and that he feared retaliation if he were to file grievances. He contends that, under these circumstances, administrative remedies were not “available.” See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”) (emphasis added).

The district court decided this case before our decision in Brown v. Valoff, 422 F.3d 926, 936 (9th Cir.2005), which discusses the defendant’s burden to prove that further administrative remedy is “available.” See also Ngo v. Woodford, 403 F.3d 620, 625 (9th Cir.2005)…