Gonzalez v. Spector

42 F. App'x 997

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2002
• Docket: No. 01-17552
• Status: Published

Opinion

MEMORANDUM

**

Ramon V. Gonzalez, a Nevada state prisoner, appeals pro se the district court’s judgment dismissing without prejudice for failure to exhaust administrative remedies in his 42 U.S.C. § 1983 action alleging prison medical professionals were deliberately indifferent to his medical needs when they failed to immediately transfer him to a hospital for bowel obstruction surgery when he reported lower .abdominal pain. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal, Wyatt v. Terhune 280 F.3d 1238, 1244-45 (9th Cir.2002), and for abuse of discretion the denial of reconsideration, Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.1993). We affirm.

The district court properly dismissed Gonzalez’s action without prejudice because Gonzalez admitted in his complaint that he did not attempt to file an administrative grievance. See Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Gonzalez’s contentions that administrative procedures could not remedy his medical injuries, and that he could not have filed a timely grievance because he was incapacitated for 21 days following surgery are unavailing. Gonzalez has not shown that a late filing would have been rejected. The exhaustion requirement is mandatory. See id.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.