                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2012

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




                             FOR THE NINTH CIRCUIT



RONALD WHITMIRE,                                 No. 11-17194

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00502-ECR-
                                                 VPC
  v.

GARY GRAHAM and R. BANNISTER,                    MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Edward C. Reed, Jr., District Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Nevada state prisoner Ronald Whitmire 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. We have jurisdiction

          *
             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).

                                                                                 11-17194
under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under 28

U.S.C. § 1915A, but we review for abuse of discretion its decision to do so without

leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

We affirm in part, and vacate and remand in part.

      The district court properly dismissed without leave to amend Whitmire’s

complaint against the medical staff who treated him because his allegations fail to

state a claim for deliberate indifference and amendment appears futile. See

Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir. 2004) (mere negligence in

diagnosing or treating a medical condition, without more, does not violate a

prisoner’s Eighth Amendment rights); see also Weilburg v. Shapiro, 488 F.3d

1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

amend is proper only if it is absolutely clear that the deficiencies of the complaint

could not be cured by amendment.”).

      The district court, however, prematurely dismissed Whitmire’s claims

against the remaining defendants without first providing him with notice of the

deficiencies and an opportunity to amend. See Weilburg, 488 F.3d at 1205.

      Whitmire shall bear his own costs on appeal.

      AFFIRMED in part; VACATED and REMANDED in part.




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