Jimmie Smith v. J. Fitter, et al, No. 09-56548 (9th Cir. 2011)

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FILED JAN 07 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JIMMIE A. SMITH, No. 09-56548 Plaintiff - Appellant, D.C. No. 2:07-cv-05712-CJCAGR v. J. FITTER, M.D. and H. CASSIM, M.D., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted December 14, 2010 ** Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges. California state prisoner Jimmie A. Smith appeals pro se from the district court s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Smith did not raise a genuine issue of material fact as to whether the defendants knew of and disregarded any excessive risks to him. See id. at 1057 58 (a prison official acts with deliberate indifference only if he knows of and disregards an excessive risk to an inmate s health and safety, and a difference of opinion about the best course of medical treatment does not amount to deliberate indifference); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) ( mere malpractice, or even gross negligence, does not suffice ). AFFIRMED. 2 09-56548

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