                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       NOV 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 TIMOTHY L. WATTS,                                No. 15-16998

                   Plaintiff-Appellant,           D.C. No. 1:13-cv-00917-AWI-
                                                  SKO
   v.

 H. NGUYEN; et al.,                               MEMORANDUM*

                   Defendants-Appellees.

                     Appeal from the United States District Court
                        for the Eastern District of California
                     Anthony W. Ishii, District Judge, Presiding

                           Submitted November 16, 2016**

Before:       LEAVY, BERZON, and MURGUIA, Circuit Judges.

        California state prisoner Timothy L. Watts appeals pro se from the district

court’s summary judgment for failure to exhaust administrative remedies in his 42

U.S.C. § 1983 action alleging constitutional claims relating to his medical care.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm in part, vacate in part,

and remand.

      The district court properly granted summary judgment on Watts’s deliberate

indifference claim based on defendants’ refusal to provide pain medication because

Watts failed to raise a genuine dispute of material fact as to whether he properly

exhausted his administrative remedies, or whether administrative remedies were

effectively unavailable to him. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(requiring proper exhaustion, which means “using all steps that the agency holds

out, and doing so properly (so that the agency addresses the issues on the merits)”

(emphasis, citation, and internal quotation marks omitted)); Sapp v. Kimbrell, 623

F.3d 813, 822-24, 826-27 (9th Cir. 2010) (describing limited circumstances under

which administrative remedies might be effectively unavailable or otherwise

excused). Moreover, the district court properly concluded that Watts failed to

exhaust his administrative remedies as to his retaliation claim because he did not

file a grievance regarding these allegations. See Woodford, 548 U.S. at 93-95.

      As to Watts’s deliberate indifference claim regarding medical appliances,

the district court concluded that because Watts added new issues after he submitted

the appeal, and did not name the defendants to this action in his grievance, Watts

                                          2                                   15-16998
failed to exhaust this claim. However, the parties presented evidence that the

Second Level grievance responders considered the merits of his grievance despite

Watts’s failure to comply with procedural requirements. After the district court

issued its decision, this court held in Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016)

that “a prisoner exhausts such administrative remedies as are available . . . under

the [Prison Litigation Reform Act] despite failing to comply with a procedural rule

if prison officials ignore the procedural problem and render a decision on the

merits of the grievance at each available step of the administrative process.” Id. at

658 (citation and internal quotation marks omitted). Therefore, in light of this

intervening authority, we vacate this claim, and remand for the district court to

determine in the first instance whether Watts properly exhausted administrative

remedies on his deliberate indifference claim regarding medical appliances.

      The parties are to bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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