
    Edward RUBALCABA, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; et al., Defendants-Appellees.
    No. 02-15237.
    D.C. No. CV-01-05561-OWW/LJO.
    United States Court of Appeals, Ninth Circuit.
    Submitted Dec. 2, 2002.
    
    Decided Dec. 10, 2002.
    Before GOODWIN, TROTT, and GRABER, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Edward Rubalcaba, a California state prisoner, appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging due process and equal protection violations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and we affirm in part, and reverse in part, and remand.

The district court improperly dismissed Rubalcaba’s action for failure to exhaust administrative remedies because it is not clear from the face of Rubalcaba’s complaint that he did not exhaust. See Wyatt v. Terhune, 305 F.3d 1033, 1044-46 (9th Cir.2002) (holding that defendants have the burden of raising and proving the absence of exhaustion).

Accordingly, we reverse the district court’s judgment of dismissal and remand for further proceedings. See id. at 1046.

The district court did not abuse its discretion by denying appointment of counsel because Rubalcaba failed to demonstrate exceptional circumstances. See Richards v. Harper, 864 F.2d 85, 87-88 (9th Cir. 1988).

AFFIRMED in part, REVERSED in part, and REMANDED. 
      
       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.
     