
    Timothy L. WATTS, Plaintiff-Appellant, v. H. NGUYEN; et al., Defendants-Appellees.
    No. 15-16998
    United States Court of Appeals, Ninth Circuit.
    Submitted November 16, 2016 
    
    Filed November 23, 2016
    Timothy L. Watts, Pro Se.
    Neah Huynh, Deputy Attorney General, AGCA-Office of the California Attorney General, San Francisco, CA, for Defendants-Appellees.
    Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
   MEMORANDUM

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. 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, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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, 126 S.Ct. 2378.

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 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 áre 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. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     