Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding.
Before GOODWIN, TROTT, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Charles Rathbun, a California state prisoner, appeals pro se the district court's judgment dismissing his 42 U.S.C. § 1983 action pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 305 F.3d 1033, 1042 (9th Cir.2002). We vacate and remand.
Our intervening decision in Wyatt dictates that we vacate and remand because it is not clear on the face of the amended complaint and exhibits thereto that Rathbun failed to exhaust. See id. at 1044 (holding that failure to exhaust is an affirmative defense that must be raised and proved by the defendant).
VACATED and REMANDED.