                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 08 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BARRY NORTHCROSS PATTERSON,                      No. 10-17175

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01851-NVW

  v.
                                                 MEMORANDUM*
DORA SCHRIRO,

              Defendant,

  and

JACK DAVIS; JOE WOZNY;
RIVIOTTA,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                       Argued and Submitted April 15, 2013
                            San Francisco, California

Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Patterson failed to exhaust his religious discrimination claim against

Officer B. Riviotta. Patterson did not claim in the internal grievance process that

Riviotta discriminated against him. To the extent he asserted a discrimination

claim in his disciplinary appeal, Patterson did not pursue that claim through all

available levels of the administrative process. 42 U.S.C. § 1997e(a). Nor would

the totality of Patterson’s grievances exhaust a religious discrimination claim as

they were insufficient to “alert[] the prison to the nature of the wrong for which

redress [was] sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).

      2.     Patterson failed to assert his retaliation claim at the summary

judgment stage; it is therefore waived. See United States v. Carlson, 900 F.2d

1346, 1349 (9th Cir. 1990).

      3.     Patterson failed to exhaust his medical indifference claim. He did not

pursue the claim through each step of the administrative grievance process. 42

U.S.C. § 1997e(a).

      4.     Patterson did not provide “fair notice” that he was asserting a First

Amendment free exercise claim under RLUIPA. See Alvarez v. Hill, 518 F.3d

1152, 1157 (9th Cir. 2008). Further, summary judgment was proper on Patterson’s

free exercise claim against Officers Davis and Wozny because Patterson failed to

demonstrate that the officers’ conduct amounted to anything more than a


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“relatively short-term and sporadic” burden on his religious practice. Canell v.

Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (internal quotation marks omitted).

To the extent Patterson makes a free exercise claim against Riviotta, he does so for

the first time on appeal; we will therefore not address it. See Carlson, 900 F.2d at

1349.

        5.   As to Patterson’s Eighth Amendment claims, he failed to allege that

defendants acted “purposeful[ly],” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

2006), or with a “culpable state of mind,” LeMaire v. Maass, 12 F.3d 1444, 1451

(9th Cir. 1993), so this claim also fails.

        AFFIRMED.




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