JOSE CALDERON V. MAGDY DANIALS, No. 20-15771 (9th Cir. 2021)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FEB 23 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOSE GUADALUPE CALDERON, Plaintiff-Appellant, v. U.S. COURT OF APPEALS No. 20-15771 D.C. No. 1:19-cv-01734-DAD-SAB MEMORANDUM* MAGDY DANIALS, Doctor; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding Submitted February 17, 2021** Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. California state prisoner Jose Guadalupe Calderon appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. * 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). 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm. The district court properly dismissed Calderon’s action because Calderon failed to allege facts sufficient to show that defendants were deliberately indifferent in treating his gout, and failing to consider other diagnoses. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (holding that deliberate indifference is a high legal standard and a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health; medical malpractice, negligence, or a difference of opinion concerning the course of treatment does not amount to deliberate indifference). We reject as meritless Calderon’s contention that the district court did not liberally construe his pleadings. We do not consider documents not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990). Calderon’s motion for appointment of counsel (Docket Entry No. 5) is denied. The Clerk will file the opening brief received at Docket Entry No. 9. AFFIRMED. 2 20-15771
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