                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 06 2012

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




                             FOR THE NINTH CIRCUIT



MARTIN PARTIDA GAONA,                            No. 11-15155

               Plaintiff - Appellant,            D.C. No. 1:06-cv-00865-SMS

  v.
                                                 MEMORANDUM *
KUSHNER; et al.,

               Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Sandra M. Snyder, Magistrate Judge, Presiding **

                           Submitted February 21, 2012 ***

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Martin Partida Gaona, a Califonia state prisoner, appeals pro se from the

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


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

       **
            Gaona 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).
indifference to serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

We affirm.

      The district court properly dismissed Gaona’s action for failure to state a

claim because Gaona failed to allege facts showing that defendants acted with

deliberate indifference in the treatment of his infection with Valley Fever. See

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (deliberate indifference is a

high legal standard; malpractice or negligence does not constitute an Eighth

Amendment violation).

      The district court did not abuse its discretion in denying Gaona leave to

amend his third amended complaint, where it had previously provided notice of the

complaint’s deficiencies and granted leave to amend. See Chodos v. West Publ’g

Co., 292 F.3d 992, 1003 (9th Cir. 2009) (setting forth standard of review and

noting that court’s discretion is particularly broad where it has already granted

leave to amend).

      The district court did not abuse its discretion in denying Gaona’s motion for

appointment of counsel because Gaona failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for


                                           2                                    11-15155
appointment of counsel).

      Gaona’s remaining contentions are unpersuasive.

      AFFIRMED.




                                       3                11-15155
