Barry Northcross Patterson v. Dora Schriro

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY NORTHCROSS PATTERSON,
Plaintiff - Appellant,
v.
DORA SCHRIRO,
Defendant,
and
JACK DAVIS; JOE WOZNY;
RIVIOTTA,
Defendants - Appellees.
No. 10-17175
D.C. No. 2:07-cv-01851-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted April 15, 2013
San Francisco, California
Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.
FILED
MAY 08 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Patterson failed to exhaust his religious discrimination claim against
Officer B. Riviotta. Patterson did not claim in the internal grievance process that
Riviotta discriminated against him. To the extent he asserted a discrimination
claim in his disciplinary appeal, Patterson did not pursue that claim through all
available levels of the administrative process. 42 U.S.C. § 1997e(a). Nor would
the totality of Patterson’s grievances exhaust a religious discrimination claim as
they were insufficient to “alert[] the prison to the nature of the wrong for which
redress [was] sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).
2. Patterson failed to assert his retaliation claim at the summary
judgment stage; it is therefore waived. See United States v. Carlson, 900 F.2d
1346, 1349 (9th Cir. 1990).
3. Patterson failed to exhaust his medical indifference claim. He did not
pursue the claim through each step of the administrative grievance process. 42
U.S.C. § 1997e(a).
4. Patterson did not provide “fair notice” that he was asserting a First
Amendment free exercise claim under RLUIPA. See Alvarez v. Hill, 518 F.3d
1152, 1157 (9th Cir. 2008). Further, summary judgment was proper on Patterson’s
free exercise claim against Officers Davis and Wozny because Patterson failed to
demonstrate that the officers’ conduct amounted to anything more than a

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“relatively short-term and sporadic” burden on his religious practice. Canell v.
Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (internal quotation marks omitted).
To the extent Patterson makes a free exercise claim against Riviotta, he does so for
the first time on appeal; we will therefore not address it. See Carlson, 900 F.2d at
1349.
5. As to Patterson’s Eighth Amendment claims, he failed to allege that
defendants acted “purposeful[ly],” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006), or with a “culpable state of mind,” LeMaire v. Maass, 12 F.3d 1444, 1451
(9th Cir. 1993), so this claim also fails.
AFFIRMED.

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