Emelito Exmundo v. R. Kane , 553 F. App'x 742 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMELITO EXMUNDO, No. 12-16494
Plaintiff - Appellant, D.C. No. 1:08-cv-00822-DLB
v.
MEMORANDUM*
R. KANE, LVN; A. ROSS, LVN,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding**
Submitted January 21, 2014***
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
California state prisoner Emelito Exmundo appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging that defendants retaliated
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
against him for filing grievances and were deliberately indifferent to his serious
medical needs in connection with the temporary denial of his medication. We
review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary
judgment); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to
exhaust administrative remedies); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We
affirm.
The district court properly granted summary judgment on Exmundo’s
retaliation claims against Ross and Kane because Exmundo failed to raise a
genuine dispute of material fact as to whether these defendants took any adverse
action because Exmundo filed grievances. See Brodheim v. Cry, 584 F.3d 1262,
1271 (9th Cir. 2009) (to establish a retaliation claim, the plaintiff must show that
his protected conduct was a “substantial” or “motivating” factor behind the
defendant’s conduct); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)
(explaining that “sheer speculation” of awareness of protected conduct is
insufficient to support a finding of retaliatory motive).
The district court properly granted summary judgment on Exmundo’s
deliberate indifference claims because Exmundo failed to raise a triable dispute as
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to whether defendants knew of or disregarded an excessive risk of serious harm in
connection with the temporary denial of Exmundo’s pain medication. See
Toguchi, 391 F.3d at 1057 (a prison official acts with deliberate indifference only
if he knows of and disregards an excessive risk to inmate health).
The district court properly dismissed Exmundo’s claim against defendant
Ross regarding a January 2008 denial of medication because Exmundo failed to
exhaust his administrative remedies against Ross prior to filing suit or demonstrate
that administrative remedies were effectively unavailable to him. See Woodford v.
Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper exhaustion” is mandatory
and requires adherence to administrative procedural rules); Rhodes v. Robinson,
621 F.3d 1002, 1005 (9th Cir. 2010) (“[A] prisoner must exhaust his administrative
remedies for the claims contained within his complaint before that complaint is
tendered to the district court.”).
The district court properly dismissed Exmundo’s claims against defendant
Vilaysane because his allegations were unclear as to the timing and nature of
Vilaysane’s actions. See Fed. R. Civ. P. 8(a) (a complaint must contain a “short
and plain statement” of the grounds for the court’s jurisdiction and the claims for
relief); McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (a complaint
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must make clear “who is being sued, for what relief, and on what theory, with
enough detail to guide discovery”).
Exmundo’s contention that the district court should have remanded a claim
for negligence to state court is unpersuasive.
AFFIRMED.
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