                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 01 2015

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



                              FOR THE NINTH CIRCUIT


JASON McCORD PATTEN,                             No. 13-57067

                Plaintiff - Appellant,           D.C. No. 5:11-cv-01633-DSF-RZ

 v.
                                                 MEMORANDUM*
C. CLARK, R.N.; et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                            Submitted November 18, 2015**

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

          Former California state prisoner Jason McCord Patten appeals pro se from

the district court’s judgment dismissing for failure to exhaust administrative

remedies his 42 U.S.C. § 1983 action alleging First and Eighth Amendment claims

arising out of his dental care. We have jurisdiction under 28 U.S.C. § 1291. We

          *
             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).
review de novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We

affirm in part, vacate in part, and remand.

      The district court properly concluded that Patten failed to exhaust his

administrative remedies because Patten’s grievances filed at San Quentin and

Avenal State Prison did not sufficiently put prison officials on notice as to the

nature of the wrong underlying his deliberate indifference and retaliation claims

against Lee and Branton for misconduct occurring at Chukawalla Valley State

Prison (“CVSP”). See Griffin v. Arpaio, 557 F.3d 1117, 1120-21 (9th Cir. 2009)

(explaining that “a grievance suffices if it alerts the prison to the nature of the

wrong for which redress is sought” (citation and internal quotation marks

omitted)).

      However, Patten alleged that he did not file grievances while he was

incarcerated at CVSP because he was afraid of retaliation based on threats by

Branton. In McBride v. Lopez, — F.3d ----, 2015 WL 7434623, at *1, 3-4 (9th Cir.

Nov. 24, 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, and remand for the district court to determine in the first


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instance whether administrative remedies were effectively unavailable on Patten’s

claims against Lee and Branton.

      The district court did not abuse its discretion in dismissing Patten’s

deliberate indifference claim against Walker in the instant action as duplicative of

his claim against Walker in an earlier-filed action, Patten v. Stone, No.

5:11-cv-02057-LHK (N.D. Cal.), because the causes of action, relief sought, and

parties are the same in both actions. See Adams v. Cal. Dep’t of Health Servs., 487

F.3d 684, 688-89 (9th Cir. 2007) (setting forth standard of review and explaining

that in determining whether a later-filed action is duplicative, this court examines

“whether the causes of action and relief sought, as well as the parties or privies to

the action, are the same”), overruled on other grounds by Taylor v. Sturgell, 553

U.S. 880, 904 (2008).

       The district court dismissed the five unserved defendants without prejudice

because Patten failed to provide the U.S. Marshals Service with accurate and

sufficient information to serve them. However, the record indicates that Patten

provided the U.S. Marshals Service with the full names and addresses for the five

unserved defendants and later provided updated address information. See Puett v.

Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (a prisoner “proceeding in forma

pauperis is entitled to rely on the U.S. Marshal for service” and as long as he or she


                                           3                                    13-57067
“provide[s] the necessary information to help effectuate service,” a prisoner

“should not be penalized by having his or her action dismissed for failure to effect

service where the U.S. Marshal . . . has failed to perform [its] duties”). The record

does not indicate why the U.S. Marshal was unable to effectuate service.

Accordingly, we vacate and remand for further proceedings as to the five unserved

defendants.

      Patten’s request for sanctions against the unserved defendants, set forth in

his opening brief, is denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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