                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           JUN 07 2016

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

ROBERT E. PARKES,                                No. 15-15485

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00902-LRH-
                                                 WGC
 v.

GREG COX, Director of NDOC; et al.,              MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                              Submitted May 24, 2016**

Before:        REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

      Nevada state prisoner Robert E. Parkes appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

violations arising from a slip and fall incident while he was working in the prison

kitchen and his termination from his prison kitchen job. We have jurisdiction

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo. Doe v. Abbott Labs., 571 F.3d 930,

933 (9th Cir. 2009). We affirm in part, reverse in part, vacate in part, and remand.

       The district court properly granted summary judgment on Parkes’ deliberate

indifference claim against defendants Cox and Benedetti because Parkes failed to

raise a genuine dispute of material fact as to whether these defendants were aware

of a threat to Parkes’ safety. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004) (prison officials act with deliberate indifference only if they know of and

disregard a “substantial risk of serious harm” to prisoner); see also Starr v. Baca,

652 F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for establishing supervisory

liability).

       The district court properly granted summary judgment on Parkes’ equal

protection claim because Parkes failed to raise a genuine dispute of material fact as

to whether defendants acted with a discriminatory intent or motive. See Navarro v.

Block, 72 F.3d 712, 716 (9th Cir. 1995) (“[T]he Equal Protection Clause requires

proof of discriminatory intent or motive.” (emphasis omitted)).

       Summary judgment on Parkes’ deliberate indifference claim against

defendants Burton and Kahler was improper because, viewing the evidence in the

light most favorable to Parkes, Parkes raised a genuine dispute of material fact as

to whether these defendants were aware of a risk to Parkes’ safety and disregarded


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that risk. See Toguchi, 391 F.3d at 1057. Specifically, while the district court

concluded that Parkes presented no evidence that these defendants were aware of

the risk, Parkes stated, inter alia, in his verified complaint that he personally told

defendants Burton and Kahler about the safety risk posed by the slipperiness of the

kitchen floor. Accordingly, we reverse this claim and remand for further

proceedings.

      Parkes alleged that he did not file grievances exhausting his retaliatory firing

claim because he was afraid of further retaliatory acts. In McBride v. Lopez, 807

F.3d 982, 984, 986-87 (9th Cir. 2015), which was issued after the district court’s

decision, this court held “that fear of retaliation may be sufficient to render the

inmate grievance procedure unavailable” and adopted a two-part test requiring a

prisoner to provide a subjective and objective basis for the fear. Therefore, in light

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

to determine in the first instance whether administrative remedies were effectively

unavailable on Parkes’ retaliatory firing claim.

      In sum, we affirm summary judgment on Parkes’ equal protection claim,

affirm summary judgment on Parkes’ deliberate indifference claim against

defendants Cox and Benedetti, reverse summary judgment on Parkes’ deliberate

indifference claim against defendants Burton and Kahler, and vacate summary


                                            3                                     15-15485
judgment on Parkes’ retaliatory firing claim.

      Parkes’ opposed motion to strike, filed on November 23, 2015, is denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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