FILED
NOT FOR PUBLICATION SEP 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL SCOTT KLEIN, No. 11-17397
Plaintiff - Appellant, D.C. No. 3:11-cv-00648-ECR-
VPC
v.
DR. SCOTT; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Paul Scott Klein, a Nevada state prisoner, 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 needs with respect to his back
*
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).
injury and pain. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th
Cir. 2000). We review for an abuse of discretion a decision to dismiss a complaint
without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc). We affirm in part, vacate in part, and remand.
The district court properly dismissed Klein’s deliberate indifference claims
against defendants Palmer, Bannister, Kirkpatrick, Fisher, Rabbi, and the John and
Jane Doe corrections officers because Klein failed to allege facts sufficient to show
that defendants knew of and disregarded an excessive risk of harm to his health.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be
found liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.”); see also Toguchi v. Chung, 391 F.3d 1051, 1057-
58, 1060 (9th Cir. 2004) (deliberate indifference is a high legal standard; a showing
of negligence, a mere difference of opinion, or medical malpractice is insufficient
to establish an Eighth Amendment violation). The district court did not abuse its
discretion in declining to allow Klein leave to amend as to these defendants
2 11-17397
because it is clear from the allegations in the complaint that amendment would be
futile. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (leave
to amend may be denied if amendment would be futile); see also Toguchi, 391
F.3d at 1057; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (no supervisory
liability without personal participation in the alleged deprivation).
However, as to the claim against the medical defendants, namely, defendants
Scott, Poag, Egerton, Williams, and Donnelly, dismissal without leave to amend
was premature because it is not “absolutely clear” that the deficiencies of the
complaint could not be cured by amendment. Weilburg v. Shapiro, 488 F.3d 1202,
1205 (9th Cir. 2007). Accordingly, we vacate the judgment as to these defendants,
and remand to allow Klein to file an amended complaint.
Klein shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
3 11-17397