
    James W. MORRISON, Plaintiff-Appellant, v. Rick DAY, Director, Montana Department of Corrections; et al., Defendants-Appellees.
    No. 02-35807. D.C. No. CV-97-00045-DWM.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 17, 2004.
    
    Decided Feb. 23, 2004.
    
      James W. Morrison, pro se, Busby, MT, for Plaintiff-Appellant.
    Diana Leibinger-Koch, Helena, MT, for Defendant-Appellee.
    Before FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Former Montana state prisoner James W. Morrison appeals pro se the district court’s order dismissing without prejudice, for failure to exhaust administrative remedies, his 42 U.S.C. § 1983 action alleging that his transfers to different facilities were in retaliation for a previous lawsuit. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a prisoner’s complaint pursuant to 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we vacate and remand.

The district court erred in dismissing Morrison’s complaint because failure to exhaust administrative remedies is an affirmative defense that must be proved by the defendants. See Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir.2003).

VACATED 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.
     