NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAIME LEDESMA ZEPEDA, No. 12-15732
Plaintiff - Appellant, D.C. No. 1:06-cv-01391-LJO-GSA
v.
MEMORANDUM*
W. J. SULLIVAN, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 15, 2013**
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Jaime Ledesma Zepeda, a California state prisoner, appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging denial of access to
the courts and unconstitutional conditions of confinement. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C.
*
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).
§ 1915A(a), Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and a
determination that a prisoner failed to exhaust administrative remedies under the
Prison Litigation Reform Act, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003). We may affirm on any ground supported by the record. Lambert v.
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). We affirm.
The district court properly dismissed Zepeda’s outdoor exercise and winter
clothing claims because these claims were based on conduct that occurred prior to
the filing of the initial complaint and Zepeda failed to exhaust his administrative
remedies before presenting them to the district court. See McKinney v. Carey, 311
F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring dismissal without
prejudice where a prisoner “did not exhaust his administrative remedies prior to
filing suit”). We reject Zepeda’s contentions that he was not required to exhaust
because his complaints were “beyond the scope” of the grievance process or had
already been grieved by other inmates.
The district court properly dismissed Zepeda’s claims related to the
provision of soap and lotion because he failed to allege facts in his third amended
complaint showing a denial of the minimal civilized measure of life’s necessities.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (discussing the objectively
“sufficiently serious” requirement for an Eighth Amendment violation).
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Dismissal of Zepeda’s access-to-courts claim was proper because Zepeda
failed to state facts sufficient to show active interference or that the prison’s
policies and practices regarding law library access caused him an actual injury.
See Lewis v. Casey, 518 U.S. 343, 348-54 (1996) (setting forth actual injury
requirement and explaining that the right of access to the courts is the “right to
bring a grievance that the inmate wishe[s] to present” not a right “to litigate
effectively once in court”).
The district court reasonably construed Zepeda’s request for leave to file a
fifth amended complaint as a request for reconsideration under Federal Rule of
Civil Procedure 60(b) where Zepeda was seeking to reinstate claims that the
district court had previously dismissed with prejudice. Moreover, the district court
did not abuse its discretion in denying the motion. See Latshaw v. Trainer
Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 2006) (setting forth standard
of review).
We reject Zepeda’s contention that the district court erred by failing to order
service on a Doe defendant.
Zepeda’s motion to file an oversized reply brief is granted. Zepeda’s
opposed motions, filed on June 3, 2013, are denied.
AFFIRMED.
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