ELBERT VAUGHT, IV V. G. UGWUEZE, No. 13-15055 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 10 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ELBERT LEE VAUGHT, IV, Plaintiff - Appellant, No. 13-15055 D.C. No. 1:11-cv-00623-GBC v. MEMORANDUM * G. UGWUEZE, M.D.; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Gerald B. Cohn, Magistrate Judge, Presiding ** Submitted September 24, 2013 *** Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges. Elbert Lee Vaught, IV, a California state prisoner, appeals pro se 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. ** Vaught 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 health and safety. 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). 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 Vaught s action because Vaught failed to allege facts in his second amended complaint showing that defendants knew of and disregarded an excessive risk to Vaught s health or safety. 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 or safety; 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). AFFIRMED. 2 13-15055

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