FILED
NOT FOR PUBLICATION NOV 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS SMITH, No. 14-17474
Plaintiff - Appellant, D.C. No. 1:14-cv-00429-MJS
v.
MEMORANDUM*
LARRY DILEO, Doctor at Kern Valley
State Prison; 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 18, 2015***
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
California state prisoner Carlos Smith appeals pro se from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Smith 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).
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. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal
under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.
The district court properly dismissed Smith’s action because Smith failed to
allege facts sufficient to show that defendants were deliberately indifferent to his
Hepatitis C infection and severe pain. See Hebbe v. Pliler, 627 F.3d 338, 341-42
(9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must
still present factual allegations sufficient to state a plausible claim for relief); see
also Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a prison official is
deliberately indifferent only if he or she knows of and disregards an excessive risk
to inmate health; neither a difference of opinion concerning the course of treatment
nor negligence in diagnosing or treating a medical condition amounts to deliberate
indifference).
The district court did not abuse its discretion by denying Smith leave to
amend his second amended complaint after providing him with two opportunities
to amend and concluding that further amendment would be futile. See Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of
2 14-17474
review and explaining that “[a] district court acts within its discretion to deny leave
to amend when amendment would be futile”); see also Gonzalez v. Planned
Parenthood of L.A., 759 F.3d 1112, 1116 (9th Cir. 2014) (“[T]he district court’s
discretion in denying amendment is particularly broad when it has previously given
leave to amend.” (citation and internal quotation marks omitted)).
AFFIRMED.
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