Kenneth Webb v. Secretary U.S. Army , 690 F. App'x 1014 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH A. WEBB, No. 16-55652
Plaintiff-Appellant, D.C. No. 2:15-cv-08807-SVW-SS
v.
MEMORANDUM*
SECRETARY U.S. ARMY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Kenneth A. Webb appeals pro se from the district court’s order dismissing
his action against the Secretary of the United States Army. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.
12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part,
*
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).
vacate in part, and remand.
The district court properly dismissed Webb’s action because Webb failed to
allege facts sufficient to show that he had exhausted his administrative remedies or
was excused from exhaustion. See Muhammad v. Sec’y of Army, 770 F.2d 1494,
1495 (9th Cir. 1985) (military personnel are required to exhaust available
intraservice remedies before seeking judicial review); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (complaint must offer more than “naked assertions
devoid of further factual enhancement” (citation, internal quotation marks, and
alterations omitted)). Because a dismissal for failure to exhaust administrative
remedies should be without prejudice, see O’Guinn v. Lovelock Corr. Ctr., 502
F.3d 1056, 1063 (9th Cir. 2007), we vacate the judgment in part and remand for the
district court to dismiss Webb’s action without prejudice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
2 16-55652