Gregory Rideau, Jr. v. Larry Small

FILED
NOT FOR PUBLICATION OCT 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY SYLVESTER RIDEAU, JR., No. 09-56216
Plaintiff - Appellant, D.C. No. 3:09-cv-00535-W-PCL
v.
MEMORANDUM *
LARRY SMALL, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Gregory Sylvester Rideau, Jr., a California state prisoner, appeals pro se
from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Barren
*
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).
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and for failure to
exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly dismissed the claim that defendants denied
Rideau a therapeutic medical diet beneficial for his heart condition because an
inmate’s disagreement with his physicians or prison officials regarding the course
of treatment does not constitute deliberate indifference to serious medical needs.
See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
The district court properly dismissed the claim that defendants denied
Rideau single cell status and other treatment for his sleep disorder because, as he
appears to concede on appeal, Rideau did not exhaust his administrative remedies
as to this claim before filing suit. See McKinney v. Carey, 311 F.3d 1198, 1199
(9th Cir. 2002) (per curiam) (requiring dismissal without prejudice where prisoner
does not exhaust his administrative remedies prior to filing suit).
Rideau’s remaining contentions, including those concerning a claim under
the Americans with Disabilities Act that he tried to allege, are unpersuasive.
AFFIRMED.
2 09-56216