                                                                           FILED
                                NOT FOR PUBLICATION                         MAY 21 2013

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




                                FOR THE NINTH CIRCUIT



GLYNN WARD,                                         No. 11-17991

                  Plaintiff - Appellant,            D.C. No. 2:09-cv-02542-CMK

  v.
                                                    MEMORANDUM *
OROMDE; et al.,

                  Defendants - Appellees.



                       Appeal from the United States District Court
                           for the Eastern District of California
                       Craig Kellison, Magistrate Judge, Presiding **

                                 Submitted May 14, 2013 ***

Before:           LEAVY, THOMAS, and MURGIA, Circuit Judges.

       California state prisoner Glynn Ward appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging excessive force and


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
            ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deliberate indifference to his serious medical needs and safety. We have

jurisdiction under 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 Ward’s claims against defendant Swift

because Ward 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 Ward’s excessive force claims because

Ward failed to raise a genuine dispute of material fact as to whether defendants

acted maliciously or sadistically to cause harm when Ward was handcuffed during

transport for Ward’s medical appointment. See Hudson v. McMillian, 503 U.S. 1,

6-7 (1992) (core judicial inquiry in determining excessive physical force in

violation of Eighth Amendment is whether force was applied in good-faith effort to

maintain discipline, or maliciously and sadistically to cause harm).

      Summary judgment was proper on Ward’s deliberate indifference claims

because, even assuming that Ward had a serious medical condition, Ward failed to


                                          2                                    11-17991
raise a genuine dispute of material fact as to whether defendants disregarded an

excessive risk to his health or safety regarding his transport and retention in an air-

conditioned van on a hot day. See Toguchi, 391 F.3d at 1058 (prison officials act

with deliberate indifference only if they know of and disregard an excessive risk to

inmate health or safety); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-

82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual

dispute for purposes of summary judgment.”).

      Ward’s request for additional time and assistance with his legal materials is

denied.

      AFFIRMED.




                                           3                                     11-17991
