Glynn Ward v. Oromde

FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GLYNN WARD, No. 11-17991
Plaintiff - Appellant, D.C. No. 2:09-cv-02542-CMK
v.
MEMORANDUM *
OROMDE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding **
Submitted May 14, 2013 ***
Before: LEAVY, THOMAS, and MURGIA, Circuit Judges.
California state prisoner Glynn Ward appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging excessive force and
*
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).
deliberate indifference to his serious medical needs and safety. We have
jurisdiction under 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 Ward’s claims against defendant Swift
because Ward 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 Ward’s excessive force claims because
Ward failed to raise a genuine dispute of material fact as to whether defendants
acted maliciously or sadistically to cause harm when Ward was handcuffed during
transport for Ward’s medical appointment. See Hudson v. McMillian, 503 U.S. 1,
6-7 (1992) (core judicial inquiry in determining excessive physical force in
violation of Eighth Amendment is whether force was applied in good-faith effort to
maintain discipline, or maliciously and sadistically to cause harm).
Summary judgment was proper on Ward’s deliberate indifference claims
because, even assuming that Ward had a serious medical condition, Ward failed to
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raise a genuine dispute of material fact as to whether defendants disregarded an
excessive risk to his health or safety regarding his transport and retention in an air-
conditioned van on a hot day. See Toguchi, 391 F.3d at 1058 (prison officials act
with deliberate indifference only if they know of and disregard an excessive risk to
inmate health or safety); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-
82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual
dispute for purposes of summary judgment.”).
Ward’s request for additional time and assistance with his legal materials is
denied.
AFFIRMED.
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