GORDON McCAIN v. COLLETTE PETERS, Director O.D.O.C.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GORDON McCAIN,
Plaintiff-Appellant,
v.
COLLETTE PETERS, Director O.D.O.C.;
et al.,
Defendants-Appellees.
No. 15-35231
D.C. No. 2:13-cv-01632-AA
MEMORANDUM*
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).
FILED
FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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Appellees shall bear the costs on appeal.
VACATED and REMANDED.

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