                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 17 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MELVIN RAY BRUMMETT, Jr.,                        No. 12-15235

               Plaintiff - Appellant,            D.C. No. 1:06-cv-01255-LJO-DLB

  v.
                                                 MEMORANDUM *
ROBERT SILLEN; et al.,

               Defendants,

  and

S. KAUR; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.




          *
             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).
      California state prisoner Melvin Ray Brummett, Jr., 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. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.

2003) (dismissal for failure to exhaust); Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998) (order) (dismissal for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii)). We affirm.

      The district court properly dismissed Brummett’s claims against defendants

McGuinness and Doe 2 because Brummett failed adequately to allege that those

defendants intentionally delayed his access to pain medication or consciously

disregarded the risk posed by such a delay. See Toguchi v. Chung, 391 F.3d 1051,

1057, 1060 (9th Cir. 2004) (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 medical malpractice or negligence is insufficient to establish an

Eighth Amendment violation); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

(“Liability under [§] 1983 arises only upon a showing of personal participation by

the defendant. A supervisor is only liable for constitutional violations of . . .

subordinates if the supervisor participated in or directed the violations, or knew of

the violations and failed to act to prevent them.” (citations omitted)).


                                            2                                       12-15235
      The district court properly dismissed without prejudice Brummett’s claim

against defendant Kaur because Brummett failed to exhaust administrative

remedies with respect to that claim before filing his third amended complaint. See

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring

dismissal without prejudice where a prisoner “did not exhaust his administrative

remedies prior to filing suit but is in the process of doing so when a motion to

dismiss is filed”); cf. Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th Cir. 2010)

(holding that exhaustion requirement is satisfied so long as prisoner exhausted his

administrative remedies with respect to new claims asserted in an amended

complaint before filing that complaint).

      AFFIRMED.




                                           3                                   12-15235
