Ralph Hawthorne, Jr. v. Kathy Mendoza-Power , 447 F. App'x 839 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RALPH KELLY HAWTHORNE, Jr., No. 10-15571
Plaintiff - Appellant, D.C. No. 1:07-cv-01101-OWW-
DLB
v.
KATHY MENDOZA-POWER; MEMORANDUM *
K. HENRY,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Ralph Kelly Hawthorne, Jr., a California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to
exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 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), and we vacate and remand.
The district court found that Hawthorne failed to file any administrative
grievances after the date of the events alleged in his complaint. However,
Hawthorne had already fully exhausted administrative remedies for a grievance
complaining of access to the prison law library and related problems. We recently
decided in Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), that “it [is not] the
prisoner’s responsibility to ensure that prison officials actually provide the relief
that they have promised.” Id. at 685 (citing Abney v. McGinnis, 380 F.3d 663, 669
(2d Cir. 2004) (“A prisoner who has not received promised relief is not required to
file a new grievance where doing so may result in a never-ending cycle of
exhaustion.”)). Accordingly, we vacate the district court’s judgment and remand
for consideration of whether Hawthorne’s grievance served to exhaust
administrative remedies for any of his federal claims.
We do not consider factual allegations and arguments raised for the first
time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
We deny Hawthorne’s motion for a court order filed on June 10, 2010.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 10-15571