                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 27 2010

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




                             FOR THE NINTH CIRCUIT



MARVIN FLEMING,                                  No. 10-15148

               Plaintiff - Appellant,            D.C. No. 1:07-cv-00461-OWW-
                                                 WMW
  v.

UNITED STATES OF AMERICA; et al.,                MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.

       Marvin Fleming, a federal prisoner, appeals pro se from the district court’s

judgment in his action brought under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging deliberate indifference

to serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We

          *
             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).
review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2), Barren

v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and 28 U.S.C.

§ 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

      The district court properly concluded that Fleming failed to state a claim for

deliberate indifference with regard to the treatment he received for his eye injury.

See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison defendant

acts with deliberate indifference only if he knows of and disregards an excessive

risk to inmate health and safety). Inadequate treatment due to malpractice, or even

gross negligence, does not amount to a constitutional violation. See id. at 1060.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Fleming’s remaining contentions are unpersuasive.

      AFFIRMED.




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