                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 19 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ALEX DEON ROSS,                                  No. 12-15775

               Plaintiff - Appellant,            D.C. No. 2:09-cv-00984-KJM-
                                                 CMK
  v.

A. DAVID; et al.,                                MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                            Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       California state prisoner Alex Deon Ross appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs and safety. We have jurisdiction under



          *
             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).
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 Ross’s claims against defendant Dewar

because Ross 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 Ross’s claims against defendants Drs.

Swingle and Roche because Ross failed to raise a genuine dispute of material fact

as to whether Swingle and Roche consciously disregarded a serious risk to his

health and safety. See Toguchi, 391 F.3d at 1057, 1060 (a prison official is

deliberately indifferent only if he or she knows of and disregards an excessive risk

to an inmate’s health and safety, and a showing of negligence is insufficient to

establish an Eighth Amendment violation).

      The district court did not abuse its discretion by dismissing Ross’s claims

against defendant David because Ross failed to effect proper service of the

summons and complaint despite having over two years to do so. See Fed. R. Civ.


                                          2                                    12-15775
P. 4(e), (m) (describing proper methods for service of process on an individual and

requiring service within 120 days after the complaint is filed); Oyama v. Sheehan

(In re Sheehan), 253 F.3d 507, 511-13 (9th Cir. 2001) (explaining good cause

standard and the district court’s broad discretion to extend the time for service or

dismiss without prejudice). We deem the claims to be dismissed without prejudice.

      Ross’s request for an emergency injunction preventing a transfer, filed on

January 7, 2013, is denied.

      AFFIRMED.




                                           3                                    12-15775
