                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 12 2010

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




                             FOR THE NINTH CIRCUIT



FRANK J. FERNANDEZ,                              No. 09-16279

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01266-CRB

  v.
                                                 MEMORANDUM *
SUSAN RISENHOOVER; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Frank J. Fernandez, a California state prisoner, appeals pro se from the

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

indifference to his 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. Sacks v. Office of Foreign Assets Control, 466 F.3d

764, 770 (9th Cir. 2006). We affirm.

      The district court properly dismissed Fernandez’s deliberate indifference

claim because, in light of the extensive medical care that the complaint

acknowledges Fernandez received, the defendants’ refusal to give him a double

mattress states, at most, a claim of negligence. See Wood v. Housewright, 900 F.2d

1332, 1334 (9th Cir. 1990) (“While poor medical treatment will at a certain point

rise to the level of constitutional violation, mere malpractice, or even gross

negligence, does not suffice.”).

      Contrary to Fernandez’s contention, the district court did not abuse its

discretion by ruling on the motion to dismiss before considering Fernandez’s

request for further discovery because discovery could not have affected a ruling on

the pleadings. Cf. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (the

district court did not abuse its discretion by staying discovery when the discovery

could not have affected summary judgment).

      Fernandez’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                     09-16279
