Daniel Joseph Bloor v. E. K. McDANIEL;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL JOSEPH BLOOR,
Plaintiff-Appellant,
v.
E. K. McDANIEL; et al.,
Defendants-Appellees.
No. 17-15072
D.C. No. 3:15-cv-00610-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Daniel Joseph Bloor, a Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing for failure to exhaust his administrative
remedies his 42 U.S.C. § 1983 action alleging a due process violation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Andres v. Marshall, 867
* 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).
FILED
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-15072
F.3d 1076, 1077 (9th Cir. 2017). We reverse and remand.
The district court screened and dismissed Bloor’s complaint on the basis that
Bloor had not pursued his grievances beyond the first level as required under the
Prison Litigation Reform Act. However, Bloor alleged in his complaint that
defendants refused to respond to his grievance, and he argued in his motion for
reconsideration that his attempt to file a second-level grievance was rejected for
lack of documentation, which he could not provide because he attached it to his
prior, unanswered grievance. Thus, the district court erred in concluding at this
early stage of the proceedings, before defendants have appeared, that
administrative remedies were available to Bloor. See Albino v. Baca, 747 F.3d
1162, 1169 (9th Cir. 2014) (en banc) (“[O]nly in rare cases will a district court be
able to conclude from the face of the complaint that a prisoner has not exhausted
his administrative remedies and that he is without a valid excuse.” (citation and
internal quotation marks omitted)); see also Jones v. Bock, 549 U.S. 199, 211-17
(2007) (failure to exhaust is an affirmative defense which defendants must raise
and prove); Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (exhaustion is not
required where administrative remedies are “effectively unavailable”). We reverse
the judgment, and remand for further proceedings.
REVERSED and REMANDED.

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