TRACYE WASHINGTON V. K. HARRINGTON, No. 12-16996 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 11 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TRACYE BERNARD WASHINGTON, Plaintiff - Appellant, No. 12-16996 D.C. No. 1:11-cv-00848-MJS v. MEMORANDUM* K. HARRINGTON; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Michael J. Seng, Magistrate Judge, Presiding** Submitted November 19, 2013*** Before: CANBY, TROTT, and THOMAS, Circuit Judges. California state prisoner Tracye Bernard Washington appeals from the district court s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** Washington 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). indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court s dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm. The district court properly dismissed Washington s action because Washington failed to allege facts in his operative amended complaint showing that defendants knew of and disregarded an excessive risk to Washington s health. See Toguchi v. Chung, 391 F.3d 1051, 1057-58, 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; neither a prisoner s difference of opinion concerning the course of treatment nor mere negligence in diagnosing or treating a medical condition amounts to deliberate indifference); see also Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (setting forth requirements for supervisory liability). Washington s contention that the district court failed to construe his pro se complaint liberally is unsupported by the record. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se pleadings are to be liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief). 2 12-16996 Washington s request for judicial notice, filed on May 15, 2013, is denied. AFFIRMED. 3 12-16996