Jason Patten v. C. Clark

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NOT FOR PUBLICATION DEC 01 2015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
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“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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