FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX DEON ROSS, No. 12-15775
Plaintiff - Appellant, D.C. No. 2:09-cv-00984-KJM-
CMK
v.
A. DAVID; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
California state prisoner Alex Deon Ross appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs and safety. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust, Wyatt v.
Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and summary judgment, Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm on any basis
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Ross’s claims against defendant Dewar
because Ross failed to exhaust administrative remedies as to these claims. See
Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” is
mandatory and requires adherence to administrative procedural rules).
Summary judgment was proper on Ross’s claims against defendants Drs.
Swingle and Roche because Ross failed to raise a genuine dispute of material fact
as to whether Swingle and Roche consciously disregarded a serious risk to his
health and safety. See Toguchi, 391 F.3d at 1057, 1060 (a prison official is
deliberately indifferent only if he or she knows of and disregards an excessive risk
to an inmate’s health and safety, and a showing of negligence is insufficient to
establish an Eighth Amendment violation).
The district court did not abuse its discretion by dismissing Ross’s claims
against defendant David because Ross failed to effect proper service of the
summons and complaint despite having over two years to do so. See Fed. R. Civ.
2 12-15775
P. 4(e), (m) (describing proper methods for service of process on an individual and
requiring service within 120 days after the complaint is filed); Oyama v. Sheehan
(In re Sheehan), 253 F.3d 507, 511-13 (9th Cir. 2001) (explaining good cause
standard and the district court’s broad discretion to extend the time for service or
dismiss without prejudice). We deem the claims to be dismissed without prejudice.
Ross’s request for an emergency injunction preventing a transfer, filed on
January 7, 2013, is denied.
AFFIRMED.
3 12-15775