NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY PAUL HEDIN,

Plaintiff

- Appellant,

v. HAUN D. CASTILLO, Regional Director, Western Region, in his individual capacity ; et al.,
Defendants

- Appellees. No. 16

- 36056
D.C. No. 3:14

- cv - 01504

- CL

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Argued and Submitted May 14, 2018

Portland, Oregon Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges. Terry Paul Hedin , an inmate of Federal Correctional Institute, Sheridan (“FCI Sheridan”), appeals the district court’s order granting summary judgment in favor of Haun D. Castillo, Marion Feather, Richard Kowalczck, and Daniel
W illiams (collectively, “Defendants”) on Hedin’s claims under Bivens v. Six

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 22 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Unknown Named Agents , 403 U.S. 388 (1971), the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. , and the Federal Tort Claims Act (“FTCA”), 28 U.S.C § 2674 et s eq. Because the parties are familiar with the facts, we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse in part , vacate in part , and remand.
I. PLRA Exhaustion The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any . . . correctional facility until such
administrative r emedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The district court adopted the magistrate judge’s Findings & Recommendation (“F&R” ), which concluded that Hedin had failed to exhaust his administrative
remedies because it was undisputed that the Bureau of Prisons (“BOP”) General
Counsel never decided Hedin’s three BP

– 11 appeals on the merits

. See 28 C.F.R. § 542.15 (a)

. The PLRA’s “edict” of exhaustion “contains one significant qualifier”

— namely, “the remedies must indeed be ‘available’ to the prisoner.” Ross v. Blake , 136 S. Ct. 1850, 1856 (2016). Thus, “ a n inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Boot h v. Churner , 532 U.S. 731,3

738 (2001)). Otherwise, the “inmate’s obligation to exhaust” is absolute. Id. at
1856. In this case, there is a genuine issue of material fact whether Hedin properly
mailed his three BP

– 11 appeals from FCI Sheridan to the Gene ral Counsel in Washington, D.C. This fact is material because if Hedin properly mail ed his BP

– 11 appeals, it gives rise to an inference that BOP staff

— either at FCI Sheridan or
at the Central Office in Washington, D.C.

— improperly failed to process them

. 1

“ When prison officials improp erly fail to process a prisoner’ s grievance , the prisoner is deemed to have exhausted av ailable administrative remedies

. ” Andres
v. Marshall , 867 F.3d 1076, 1079 (9th Cir. 2017) (per curiam). 2 “ I n such circumstances, prison officials have ‘ thwart[ed] inmates from taking advantage of [the] grie vance process,’ making that process unavailable. ” Id. ( quoting Ross , 136
S. Ct. at 1859 ) (alterations in original)

. Accordingly, we reverse the district court’s

1 The F&R did not consider this disputed fact to be material because “all of [Hedin]’s other remedies were properly processed and reported.” But the fact that Hedin’s BP

– 9 requests, which are processed by FCI Sheridan staff, and Hedin’s BP

– 10 reques ts, which are processed by the BOP Regional Office, were all “properly processed and reported” has no bearing on whether Hedin’s BP

– 11 appeals were “properly processed and reported” by the Central Office. 2 Given the time and resources spent addressing exhaustion and the fact that Hedin presented copies of three completed BP

– 11 appeals, the BOP could consider deeming Hedin’ s BP

– 11 appeals filed in this particular case

.4

grant of summary judgme nt on the issue of exhaustion and remand for further proceedings.
II. Failure to State a Claim In light of our holding, we need not reach the merits of Hedin’s claims

. In the event there was exhaustion or exhaustion is assumed, it was improper to
dismiss the claims with prejudice and without leave to amend. 3 See McKinney v. Carey , 311 F.3d 1198, 1200

– 01 (9th Cir. 2002) (“ Requiring dismissal without prejudice when there is no presuit exhaustion provides a strong incentive that will
further [the] Congressional objectives [of the PLRA].”) ; Schucker v. Rockwood, 846 F.2d 1202, 1203

– 04 (9th Cir. 1988) (per curiam) (“Dismissal of a pro se complaint without leave to a mend is proper only if it is ‘ absolutely clear that the deficiencies of the complaint co uld not be cured by amendment.’” (quoting Noll v.
Carlson , 809 F.2d 1446, 1448 (9th Cir.1987) (internal quotation marks omitted) ))

. Accordingly, we vacate and remand the portion of the district court’s order dismissing Hedin’s suit for failure to state a claim.
REVE RSED in part , VACATED in part , and REMANDED.

3 Unless, as indicated below, amendment would be futile.