FILED
NOT FOR PUBLICATION JUL 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LeGRANTE V. ELLIS, No. 10-16145
Plaintiff - Appellant, D.C. No. 1:07-cv-01351-LJO-
WMW
v.
JAMES E. TILTON; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
California state prisoner LeGrante V. Ellis appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants
were deliberately indifferent to his serious medical condition. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and for an
abuse of discretion the denial of leave to amend, Chodos v. West Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002). We affirm.
The district court properly dismissed Ellis’s action because Ellis failed to
allege facts in his first amended complaint showing that defendants acted with
deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
2004) (“Deliberate indifference is a high legal standard. A showing of medical
malpractice or negligence is insufficient to establish a constitutional deprivation
under the Eighth Amendment.”).
The district court did not abuse its discretion by dismissing without leave to
amend after providing Ellis with one opportunity to amend and concluding that
further amendment would be futile. See Cato v. United States, 70 F.3d 1103,
1106-07 (9th Cir. 1995) (dismissal without leave to amend is not an abuse of
discretion where amendment would be futile).
AFFIRMED.
2 10-16145