                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 14 2010

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




                            FOR THE NINTH CIRCUIT



KEITH M. CASSELLS,                                No. 07-17024

               Plaintiff - Appellant,             D.C. No. CV-04-01798-FCD/EFB

  v.
                                                  MEMORANDUM *
D. MEHTA; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                              Submitted May 25, 2010 **


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

       Keith M. Cassells, a California 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 in violation of the Eighth Amendment.


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

       Cassells contends that prison officials improperly delayed surgery on his

spine, delayed post-surgical follow-up examinations, and denied his request for an

egg-crate mattress. The district court, however, properly granted summary

judgment because Cassells failed to raise a triable issue as to whether defendants

were deliberately indifferent to his spine conditions. See id. at 1057 (a prison

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

excessive risk to inmate health and safety,” and “[m]ere negligence in diagnosing

or treating a medical condition, without more, does not violate a prisoner’s Eighth

Amendment rights”) (internal quotation marks and citations omitted).

       The district court did not abuse its discretion by denying Cassells’s motion

for leave to file an amended complaint, because amendment would be futile. See

Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (“We review the district

court’s denial of leave to amend the complaint for abuse of discretion. A district

court does not err in denying leave to amend where the amendment would be

futile.”) (citations omitted).

       Cassells’s remaining contentions are unpersuasive.

       AFFIRMED.


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