Melinda Valenzuela v. Victor Gan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELINDA GABRIELLA VALENZUELA, No. 15-16841
Plaintiff-Appellant, D.C. No. 2:13-cv-00444-NVW
v.
MEMORANDUM*
VICTOR GAN, Doctor at Infirmary LBJ; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Melinda Gabriella Valenzuela appeals pro se from the district court’s
summary judgment for failure to exhaust administrative remedies in her 42 U.S.C.
§ 1983 action alleging constitutionally inadequate medical care while she was a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Valenzuela
failed to raise a genuine dispute of material fact as to whether Valenzuela
exhausted her administrative remedies before filing her lawsuit. See McKinney v.
Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (exhaustion must be completed
before a § 1983 action is filed; exhaustion during the pendency of the litigation is
insufficient because exhaustion is a precondition to suit); see also Douglas v.
Noelle, 567 F.3d 1103, 110, 1106 (9th Cir. 2009) (§ 1983 complaint deemed filed
at time prisoner delivers it to prison authorities for forwarding to court clerk).
Contrary to Valenzuela’s contention, exhaustion of administrative remedies before
filing an amended complaint alleging the same claims does not constitute proper
exhaustion. See Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014)
(explaining exception to exhaustion during pendency of action where new claims
are alleged in amended complaint). Because we affirm the district court’s
summary judgment based on failure to exhaust administrative remedies, we treat
the judgment as a dismissal without prejudice. See Lira v. Herrera, 427 F.3d
1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without
2 15-16841
prejudice when there is no presuit exhaustion, even if there is exhaustion while suit
is pending.” (citation and internal quotation marks omitted)).
Because we affirm based on failure to exhaust, we do not reach the merits of
Valenzuela’s claim.
Valenzuela’s motion to supplement the record, filed on August 30, 2016, is
denied as unnecessary.
AFFIRMED.
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