                                                                                FILED
                                    NOT FOR PUBLICATION                          NOV 20 2012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



ESTER BURNETT,                                          No. 11-16996

                      Plaintiff - Appellant,            D.C. No. 1:10-cv-00822-SKO

  v.
                                                        MEMORANDUM *
JACK ST. CLAIR, Chief Medical Officer;
CLAY, Warden,

                      Defendants - Appellees.



                           Appeal from the United States District Court
                               for the Eastern District of California
                          Sheila K. Oberto, Magistrate Judge, Presiding **

                                 Submitted November 13, 2012 ***

Before:           CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Ester Burnett, a California state prisoner, appeals pro se from the district




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

              *
                  *
            Burnett consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d

443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998) (order). We affirm.

      The district court properly dismissed Burnett’s Eighth Amendment claim

because Burnett failed to allege facts establishing that any defendants consciously

disregarded his serious medical needs. See Toguchi v. Chung, 391 F.3d 1051,

1060 (9th Cir. 2004) (a prison official is deliberately indifferent only if he knows

of and disregards an excessive risk to an inmate’s health or safety; mere negligence

does not constitute deliberate indifference); see also Steckman v. Hart Brewing,

Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[W]e are not required to accept as

true conclusory allegations which are contradicted by documents referred to in the

complaint.”).

      The district court properly dismissed Burnett’s due process claim after it

determined that the Eighth Amendment provided the proper basis for evaluating

his allegations that defendants disregarded his serious medical needs. See County

of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“[W]here a particular

Amendment provides an explicit textual source of constitutional protection against


                                           2                                    11-16996
a particular sort of government behavior, that Amendment, not the more

generalized notion of substantive due process, must be the guide for analyzing

these claims.” (citations and internal quotation marks omitted).

      The district court properly determined that Burnett’s allegations regarding

the cancellation of his appointment failed to state a claim for a violation of section

845.6 of the California Government Code. See Cal. Govt. Code § 845.6; Watson v.

State, 26 Cal. Rptr. 2d 262, 265 (Ct. App. 1993) (liability under section 845.6 is

limited to situations where defendants intentionally or unjustifiably fail to respond

to “serious and obvious conditions requiring immediate care”).

      AFFIRMED.




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