Lopez v. Peterson
Lopez v. Peterson
Opinion of the Court
MEMORANDUM
Andrew Rick Lopez, a California state prisoner, appeals pro se from the district
In its June 24, 2005, 2005 WL 1553999, order, the district court properly dismissed with prejudice Lopez’s claims against defendants Ballard, Hooper, Jennings, Munoz, and Platt based on an alleged nine-month delay in providing medically prescribed shoes because Lopez failed to allege sufficient facts to indicate that those defendants were deliberately indifferent to his medical needs. See Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (“Under the Eighth Amendment’s standard of deliberate indifference, a person is liable for denying a prisoner needed medical care only if the person knows of and disregards an excessive risk to inmate health and safety.”). Moreover, Lopez failed to state a due process claim based on those defendants’ involvement in the administrative appeals process because prisoners do not have a liberty interest in a particular grievance procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
The district court properly dismissed without prejudice Lopez’s claim against defendants Hooper, Jennings, and Castro based on an alleged failure to treat his deviated septum because Lopez did not properly exhaust administrative remedies as to this claim. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that “proper exhaustion” requires adherence to administrative procedural rules).
The district court properly dismissed Lopez’s claims against defendants Babbich, Baughman, Diggs, Haas, Reyes, Selky, and Wright based on their alleged forty-five day delay in providing Lopez with his medically prescribed shoes because Lopez failed to exhaust his administrative remedies prior to filing this action. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) (holding that exhaustion under 42 U.S.C. § 1997e(a) must occur prior to commencement of the action). However, the district court should have dismissed this claim without prejudice. See Wyatt, 315 F.3d at 1120.
In its June 11, 2003 order, although the district court correctly determined that Lopez’s amended complaint failed to comply with Federal Rule of Civil Procedure 8(a), the district court abused its discretion by significantly limiting the complaint pursuant to Rule 16, which allows district courts to eliminate frivolous claims. Lopez’s amended complaint contained allegations that appear to state colorable claims in addition to the two claims identified by the district court. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“a complaint
Lopez’s remaining contentions are unpersuasive.
Accordingly, we vacate the portion of the June 24, 2005 order dismissing with prejudice Lopez’s claims against defendants Babbich, Baughman, Diggs, Haas, Reyes, Selky, and Wright based on an alleged forty-five day delay in providing Lopez with his medically prescribed shoes, and instruct the district court to enter the dismissal without prejudice. We also vacate the June 11, 2003 order, and instruct the district court to provide Lopez leave to amend. The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provid
Case-law data current through December 31, 2025. Source: CourtListener bulk data.