Dominguez v. Rosas , 344 F. App'x 438 ( 2009 )

MEMORANDUM ^**

Larry Dominguez, a California state prisoner, 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 pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003).

The district court dismissed the action because Dominguez failed to appeal the rejection of his grievance as untimely at each available level of the administrative process. Dist. Ct. Op. at 7. After the district court reached that decision, significant new cases have been decided, including the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) and our opinion in Marella v. Terhune, 568 F.3d 1024, 1027-28 (9th Cir.2009). Accordingly, the district court did not have the opportunity to make factual findings relevant to the now-governing legal standards. We therefore vacate the district court’s decision and remand to allow that court the opportunity to reconsider Dominguez’s claim in light of intervening developments in the law.

Dominguez’s motion for appointment of counsel is denied.

The previous memorandum disposition is withdrawn.

VACATED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.