                                                                             FILED
                             NOT FOR PUBLICATION                              DEC 14 2009

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




                             FOR THE NINTH CIRCUIT



 NICOLAS MORAN,                                   No. 08-55799

               Plaintiff - Appellant,             D.C. No. 3:07-cv-01020-JM-POR

   v.
                                                  MEMORANDUM *
 M. LEVIN, Medical Doctor; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Jeffrey T. Miller, District Judge, Presiding

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Nicolas Moran, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

JK/Research
§§ 1915(e)(2) and 1915A for failure to state a claim. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a district court’s dismissal under 28 U.S.C.

§ 1915(e)(2), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order),

and 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We

affirm.

       The district court properly dismissed Moran’s deliberate indifference claims

because the allegations set forth in his second amended complaint and the

attachments thereto state, at most, a claim for malpractice or negligence. See

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“A showing of medical

malpractice or negligence is insufficient to establish a constitutional deprivation

under the Eighth Amendment.”). Moreover, a difference in opinion between

Moran and the prison physicians about the preferred course of medical treatment

does not constitute an Eighth Amendment violation. See id. at 1058. Finally, as to

defendant Athannassious, Moran failed to allege facts to show the sufficiently

culpable state of mind that is required to establish deliberate indifference. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

       Moran’s remaining contentions are unpersuasive.

       AFFIRMED.




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