                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BENJAMIN W. ESPINOSA,                           No. 16-16196

                Plaintiff-Appellant,            D.C. No. 3:14-cv-00668-RCJ-VPC

 v.
                                                MEMORANDUM*
ROBERT BANNISTER; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Benjamin W. Espinosa, a Nevada state prisoner, appeals pro se from the

district court’s summary judgment in 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. Toguchi v. Chung, 391 F.3d 1051, 1056


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(9th Cir. 2004). We affirm.

      The district court properly granted summary judgment because Espinosa

failed to raise a genuine dispute of material fact as to whether defendants were

deliberately indifferent to his medical conditions. See id. at 1057-60 (a prison

official is deliberately indifferent only if he or she knows of and disregards an

excessive risk to inmate health; a difference of opinion concerning the course of

treatment, medical malpractice, or negligence in diagnosing or treating a medical

condition does not amount to deliberate indifference).

      The district court did not abuse its discretion in denying Espinosa’s motions

for appointment of counsel because Espinosa failed to demonstrate exceptional

circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting

forth standard of review and requirements for appointment of counsel).

      The district court did not abuse its discretion in denying Espinosa’s motion

for leave to file an amended complaint because the proposed amendment would

have been futile. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)

(setting forth standard of review and explaining that “[f]utility alone can justify the

denial of a motion to amend” (citation and internal quotation marks omitted)); see

also Toguchi, 391 F.3d at 1060 (“A showing of medical malpractice or negligence

is insufficient to establish a constitutional deprivation under the Eighth

Amendment.”).


                                           2                                    16-16196
      We reject as unsupported by the record Espinosa’s argument that the district

court erred by denying him an increase in the copywork limit.

      Espinosa’s motion to strike (Docket Entry No. 33) is denied.

      AFFIRMED.




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