David Wilson v. L. Zafra

FILED
NOT FOR PUBLICATION APR 20 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DAVID W. WILSON, No. 08-17632

Plaintiff - Appellant, D.C. No. 2:06-cv-1577-FCD-KJM

v.
MEMORANDUM *
L. M. ZAFRA; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

David W. Wilson, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

and state law violations related to prison officials’ alleged failure to provide mental

*
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).
health care. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

dismissal for failure to state a claim. See Nelson v. Heiss, 271 F.3d 891, 893 (9th

Cir. 2001); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

The district court properly dismissed Wilson’s deliberate indifference to

medical needs claim because he did not allege that he suffered a sufficiently

serious harm when defendant Nurse Zafra ignored his request to see a psychiatrist

on the weekend. See Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004). The

district court also properly dismissed Wilson’s remaining claims because they are

vague and conclusory and because Wilson failed to allege how any official

deprived him of his constitutional or other protected rights by affirmative conduct

or through failure to act, as required under Section 1983. See Leer v. Murphy, 844

F.2d 628, 633 (9th 1988). Wilson’s remaining contentions are unpersuasive.

We deny as moot appellee Zafra’s request for judicial notice.

AFFIRMED.

2 08-17632