Timothy Watts v. H. Nguyen ( 2016 )

NOT FOR PUBLICATION FILED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
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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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