Bobby Shane Charlton v. Oregon Department of Correction;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY SHANE CHARLTON,
Plaintiff - Appellant,
v.
OREGON DEPARTMENT OF
CORRECTION; et al.,
Defendants - Appellees.
No. 11-35147
D.C. No. 6:09-cv-01246-TC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
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
FILED
OCT 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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 nonexhaustion, and plaintiff must be provided fair notice of
opportunity to develop a record before a dismissal for nonexhaustion).
We decline to consider defendants’ alternate arguments, raised for the first
time on appeal, that Charlton’s operative complaint fails to state a claim. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We deny Charlton’s request to remand this case to a different magistrate
judge because the record does not indicate that the case presents the rare

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circumstances necessary to warrant reassignment. See Hernandez v. City of El
Monte, 138 F.3d 393, 402-03 (9th Cir. 1998) (discussing factors for determining
whether reassignment is appropriate).
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

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