                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 08 2012

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

DAVID VELASQUEZ,                                 No. 08-56634

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01130-LAB-
                                                 CAB
  v.

A. BARRIOS, Medical Treatment                    MEMORANDUM*
Assistant; C. GRAY, Supervising Medical
Nurse; C. ROBERTSON, CDO/Health
Care Manager; M. LEVIN, Medical
Doctor; F. PASCUA, Medical Appeals
Examiner; R. TORREZ, Medical Appeal
Analyst; JUAN GONZALEZ, Surgeon; S.
THOMAS, Doctor/FNP; C. HALL, Appeal
Examiner; N. GRANNIS, Chief Inmate
Appeal Coordinator; L. E. SCRIBNER,
Warden,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                        Argued and Submitted June 4, 2012
                              Pasadena, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, District Judge.**

      Prisoner David Velasquez appeals from the district court’s final judgment

dismissing his 42 U.S.C. § 1983 claims with prejudice and without leave to amend.

For the following reasons, we affirm.

                                           I

      The district court did not err in dismissing Velasquez’s Eighth Amendment

allegations because he cannot demonstrate that appellees acted with deliberate

indifference in delaying his hernia surgery. The Eighth Amendment requires the

government to provide a certain level of medical care to its prisoners. Estelle v.

Gamble, 429 U.S. 97, 104-05 (1976). Not every breach of this duty, however,

amounts to a constitutional violation. Hutchinson v. United States, 838 F.2d 390,

394 (9th Cir. 1988). Instead, the relevant inquiry when an inmate contends that

prison officials neglected his medical needs is whether these officials demonstrated

“deliberate indifference.” Estelle, 429 U.S. at 104. To state a claim under the

deliberate indifference standard, an inmate must allege more than mere negligence,

but rather plead facts sufficient to support the conclusion that prison officials were

aware of a substantial risk to the prisoner’s health, yet purposefully disregarded it.



       **
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.

                                           2
See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Furthermore, when,

as here, a claim is based on a delay in treatment, such a delay only rises to a

constitutional violation if it caused the prisoner “substantial harm.” Wood v.

Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

      Velasquez maintains appellees were aware of his condition, yet

unreasonably delayed his hernia operation for over a year. None of his allegations,

however, demonstrates the existence of deliberate indifference. In fact, the

undisputed facts reflect that appellees attended to Velasquez’s needs by providing

him with pain medication after his hernia diagnosis, meeting with him on a number

of occasions to discuss his pain treatment, responding to his numerous

administrative appeals, placing him on the high priority list for surgery, and

scheduling the procedure as soon as a surgeon was available. Accordingly,

Velasquez’s § 1983 Eighth Amendment claim was properly dismissed.

                                          II

      The district court did not err in dismissing plaintiff’s § 1983 claim alleging

that appellees violated his Fourteenth Amendment due process rights in refusing to

fulfill his pleas for immediate treatment. Appellees’ delay or inaction in

responding to Velasquez’s appeals cannot alone serve as the basis for a due process

claim because a prison’s grievance procedures do not confer any Fourteenth


                                          3
Amendment rights upon inmates. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison

grievance procedure.”). Consequently, an official’s action or inaction with respect

to a prisoner’s appeal cannot give rise to § 1983 liability. Velasquez’s frustration

with the prison’s handling of his medical requests, therefore, is an insufficient

basis for a due process claim and it was properly dismissed.

                                          III

      The district court did not abuse its discretion in denying plaintiff leave to

amend. Dismissal of a pro se complaint with prejudice is proper only if it is

“absolutely clear that the deficiencies of the complaint could not be cured by

amendment.” Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per

curiam) (internal quotation marks omitted). Here, the district court appropriately

dismissed Velasquez’s complaint without leave to amend because any amendment

would have been futile. There is no evidence that appellees’ conduct rose to the

level of a constitutional violation on which Velasquez could base a § 1983 claim.



AFFIRMED.




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