FILED
NOT FOR PUBLICATION JUL 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH GILBERT, No. 11-15576
Plaintiff - Appellant, D.C. No. 1:09-cv-02050-AWI-
DLB
v.
JAMES A. YATES, Warden; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
California state prisoner Joseph Gilbert appeals from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging defendants were
deliberately indifferent to his serious medical needs. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to
state a claim under 28 U.S.C. §§ 1915A or 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 Gilbert’s action because Gilbert failed
to allege facts in his first amended complaint suggesting that defendants acted with
deliberate indifference. See Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.
2012) (difference of medical opinion is insufficient to establish deliberate
indifference); 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.”); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir.
1991) (en banc) (supervisory liability exists even without overt personal
participation only when the supervisory official “implement[s] a policy so deficient
that the policy itself is a repudiation of constitutional rights and is the moving force
of the constitutional violation” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing Gilbert’s first
amended complaint without leave to amend. See Chodos v. West Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002) (explaining that after the district court has already
2 11-15576
granted plaintiff leave to amend, its discretion in allowing further amendment is
particularly broad).
Gilbert’s request for judicial notice, filed on June 23, 2011, is granted.
AFFIRMED.
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