                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 07 2010

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




                             FOR THE NINTH CIRCUIT



MARSHALL BURGESS, Jr.,                           No. 09-17070

               Plaintiff - Appellant,            D.C. No. 2:08-cv-1251-RLH-GWF

  v.
                                                 MEMORANDUM *
DAVID MAR; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Nevada
                    Roger L. Hunt, Chief District Judge, Presiding

                             Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Marshall Burgess, Jr., a Nevada state prisoner, appeals pro se from the

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

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




          *
             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).
§ 1291. We review de novo, Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001),

and we affirm.

      The district court properly dismissed Burgess’s section 1983 damages claims

against prison officials in their official capacity, and against various Nevada prison

agencies, medical departments, and pharmacies. See Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989) (state officials acting in their official capacity are

not persons for purposes of money damages claims under section 1983); Montana

v. Goldin, 394 F.3d 1189, 1195 (9th Cir. 2005) (unless they specifically waive their

immunity, states and state agencies are immune under the Eleventh Amendment

from private actions for damages or injunctive relief in federal court).

      The district court also properly dismissed Burgess’s claims against various

prison medical personnel in their individual capacities because their alleged

misdiagnoses of his foot and stomach pain and alleged failure to warn him of the

potential side effects of pain medicine constitute negligence at most, and not

deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

2004). Moreover, neither the difference in medical opinion between Burgess’s

treating physicians nor Burgess’s own disagreement with their chosen course of

treatment is sufficient to establish deliberate indifference. See id. at 1058.




                                           2                                     09-17070
      The district court did not abuse its discretion in denying Burgess’s motion

for leave to file a second amended complaint after finding that the deficiencies in

his first amended complaint could not be cured by amendment. See Kendall v.

Visa, 518 F.3d 1042, 1051-52 (9th Cir. 2008).

      We decline to reach appellees’ remaining contentions.

      AFFIRMED.




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