NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 08 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID VELASQUEZ, No. 08-56634
Plaintiff - Appellant, D.C. No. 3:07-cv-01130-LAB-
CAB
v.
A. BARRIOS, Medical Treatment MEMORANDUM*
Assistant; C. GRAY, Supervising Medical
Nurse; C. ROBERTSON, CDO/Health
Care Manager; M. LEVIN, Medical
Doctor; F. PASCUA, Medical Appeals
Examiner; R. TORREZ, Medical Appeal
Analyst; JUAN GONZALEZ, Surgeon; S.
THOMAS, Doctor/FNP; C. HALL, Appeal
Examiner; N. GRANNIS, Chief Inmate
Appeal Coordinator; L. E. SCRIBNER,
Warden,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted June 4, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, District Judge.**
Prisoner David Velasquez appeals from the district court’s final judgment
dismissing his 42 U.S.C. § 1983 claims with prejudice and without leave to amend.
For the following reasons, we affirm.
I
The district court did not err in dismissing Velasquez’s Eighth Amendment
allegations because he cannot demonstrate that appellees acted with deliberate
indifference in delaying his hernia surgery. The Eighth Amendment requires the
government to provide a certain level of medical care to its prisoners. Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). Not every breach of this duty, however,
amounts to a constitutional violation. Hutchinson v. United States, 838 F.2d 390,
394 (9th Cir. 1988). Instead, the relevant inquiry when an inmate contends that
prison officials neglected his medical needs is whether these officials demonstrated
“deliberate indifference.” Estelle, 429 U.S. at 104. To state a claim under the
deliberate indifference standard, an inmate must allege more than mere negligence,
but rather plead facts sufficient to support the conclusion that prison officials were
aware of a substantial risk to the prisoner’s health, yet purposefully disregarded it.
**
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
2
See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Furthermore, when,
as here, a claim is based on a delay in treatment, such a delay only rises to a
constitutional violation if it caused the prisoner “substantial harm.” Wood v.
Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
Velasquez maintains appellees were aware of his condition, yet
unreasonably delayed his hernia operation for over a year. None of his allegations,
however, demonstrates the existence of deliberate indifference. In fact, the
undisputed facts reflect that appellees attended to Velasquez’s needs by providing
him with pain medication after his hernia diagnosis, meeting with him on a number
of occasions to discuss his pain treatment, responding to his numerous
administrative appeals, placing him on the high priority list for surgery, and
scheduling the procedure as soon as a surgeon was available. Accordingly,
Velasquez’s § 1983 Eighth Amendment claim was properly dismissed.
II
The district court did not err in dismissing plaintiff’s § 1983 claim alleging
that appellees violated his Fourteenth Amendment due process rights in refusing to
fulfill his pleas for immediate treatment. Appellees’ delay or inaction in
responding to Velasquez’s appeals cannot alone serve as the basis for a due process
claim because a prison’s grievance procedures do not confer any Fourteenth
3
Amendment rights upon inmates. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison
grievance procedure.”). Consequently, an official’s action or inaction with respect
to a prisoner’s appeal cannot give rise to § 1983 liability. Velasquez’s frustration
with the prison’s handling of his medical requests, therefore, is an insufficient
basis for a due process claim and it was properly dismissed.
III
The district court did not abuse its discretion in denying plaintiff leave to
amend. Dismissal of a pro se complaint with prejudice is proper only if it is
“absolutely clear that the deficiencies of the complaint could not be cured by
amendment.” Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per
curiam) (internal quotation marks omitted). Here, the district court appropriately
dismissed Velasquez’s complaint without leave to amend because any amendment
would have been futile. There is no evidence that appellees’ conduct rose to the
level of a constitutional violation on which Velasquez could base a § 1983 claim.
AFFIRMED.
4