                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 30 2010

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




                             FOR THE NINTH CIRCUIT



 SY LEE CASTLE,                                    No. 08-56435

               Plaintiff - Appellant,              No. 3:08-cv-00347-DMS-POR

   v.
                                                   MEMORANDUM *
 M. RAMIREZ, Correctional Nurse; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Dana M. Sabraw, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Sy Lee Castle, a California state prisoner, appeals pro se from the district

court’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action claiming



          *
             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).

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deliberate indifference to serious medical needs and equal protection violations.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s dismissal of a complaint for failure to state a claim under 28 U.S.C.

§ 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

        The district court properly dismissed Castle’s deliberate indifference claim

because Castle cannot allege that Nurses Ramirez, Cerrillo, and Lopez denied him

his prescription pain medicine in conscious disregard of an excessive risk to his

health, as required by Farmer v. Brennan, 511 U.S. 825, 837 (1994). Rather, the

record shows, and Castle admits, that they were enforcing the prison rule that

inmates be admitted to the infirmary to receive this pain medication, which Castle

refused to do for approximately one month. Castle’s preference as to the location

of his treatment does not constitute deliberate indifference, see Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), and any alleged negligence in the

nurses’ failure to administer a crushed form of the medicine to Castle on an

outpatient basis is also insufficient to constitute deliberate indifference, see Estelle

v. Gamble, 429 U.S. 97, 106 (1976).

        The district court also properly dismissed Castle’s equal protection claim.




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Castle fails to plead facts suggesting that the nurses intentionally discriminated

against him or that he was part of a protected class, as required by Bell v. Wolfish,

441 U.S. 520, 545 (1979).

        AFFIRMED.




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