                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       JUN 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JASON ANDREW SMITH,                             No.    17-15252

                 Plaintiff-Appellant,           D.C. No. 1:15-cv-01662-LJO-MJS

 v.

JOHAL; et al.,                                  MEMORANDUM*

                 Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                    Lawrence J. O’Neill, Chief Judge, Presiding

                             Submitted May 24, 2017**

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

      Jason Andrew Smith, a California state prisoner, appeals pro se from the

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

constitutional violations in connection with his shoulder injury. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Wilhelm v. Rotman, 680


      *
             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).
F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A); Watison v.

Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii)). We affirm in part, vacate in part, and remand.

       The district court properly dismissed Smith’s deliberate indifference claims

against defendants Johal, Zepp, and Klang because Smith failed to allege facts

sufficient to show that these defendants were deliberately indifferent to Smith’s

shoulder injury and pain. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.

2004) (deliberate indifference is a high legal standard; a difference of medical

opinion concerning the course of treatment, negligence, or medical malpractice

does not amount to deliberate indifference).

      However, dismissal of Smith’s deliberate indifference claim against

defendant Youssef was premature because Smith’s allegations regarding the delay

in his physical therapy, liberally construed, are “sufficient to warrant ordering [this

defendant] to file an answer.” Wilhelm, 680 F.3d at 1116. We vacate the dismissal

of Smith’s deliberate indifference claim regarding the delay in his physical therapy

as to defendant Youssef, and remand for further proceedings.

      AFFIRMED in part, VACATED in part, and REMANDED.




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