                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 GORDON McCAIN,                                  No.    15-35231

                  Plaintiff-Appellant,           D.C. No. 2:13-cv-01632-AA

   v.
                                                 MEMORANDUM*
 COLLETTE PETERS, Director O.D.O.C.;
 et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, District Judge, Presiding

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Gordon McCain, an Oregon state prisoner, 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 medical deliberate indifference and equal protection



        *
             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).
claims arising from the prison’s refusal to provide him testosterone injections. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca,

747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We vacate and remand.

      The district court correctly observed that McCain had not pursued his

grievances beyond the first level. However, the district court did not expressly

consider McCain’s evidence that he was not provided with instructions on how to

file an appeal, that he did not have access to the necessary forms, or that he had

been informed by a prison official that he could not appeal his grievances. See

Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (explaining that the Prison

Litigation Reform Act (“PLRA”) does not require exhaustion when circumstances

render administrative remedies “effectively unavailable”); Marella v. Terhune, 568

F.3d 1024, 1027 (9th Cir. 2009) (administrative remedies may be effectively

unavailable where the prisoner lacks the necessary forms or is reliably informed

that he cannot file a grievance). Moreover, McCain’s failure to include a particular

legal theory or failure to identify each named defendant in his grievances is not a

valid basis for concluding that he did not exhaust administrative remedies. See

Reyes v. Smith, 810 F.3d 654, 658-59 (9th Cir. 2016) (under the PLRA, a grievance

need not include legal terminology, legal theories, or provide personal notice to a

particular official that he may be sued). Accordingly, we vacate and remand for

further proceedings.


                                          2                                    15-35231
Appellees shall bear the costs on appeal.

VACATED and REMANDED.




                                   3        15-35231
