Cunningham

MEMORANDUM **

Oregon state prisoner Brad Cunningham appeals pro se the district court’s judgment dismissing of his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate in part, reverse in part, and remand.

The district court held that Cunningham failed to exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”), despite the fact that his grievances were rejected as untimely, and Cunningham contends that he was told by the prison’s grievance coordinator that he “would not obtain any relief for medical grievances through this procedure.” The district court decided this case before our decision in Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir.2005), which discusses the defendant’s burden to prove that further administrative remedies are “available.” See also Ngo v. Woodford, 403 F.3d 620, 625 (9th Cir.2005) (recognizing that a prisoner satisfied the exhaustion requirement by showing his grievance had been rejected as untimely because he “could go no further in the prison’s administrative system; no remedies remained available to him”). Accordingly, we remand…