                                                                              FILED
                                 NOT FOR PUBLICATION                           MAR 02 2010

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




                                 FOR THE NINTH CIRCUIT



 CION ADONIS PERALTA,                                No. 09-15014

                   Plaintiff - Appellant,            D.C. No. 2:08-cv-01809-CMK

   v.
                                                     MEMORANDUM *
 R.P. GALLOWAY; et al.,

                   Defendants - Appellees.



                         Appeal from the United States District Court
                             for the Eastern District of California
                        Craig Kellison, Magistrate Judge,** Presiding

                                                             ***
                               Submitted February 16, 2010


Before:            FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
              **
              Pursuant to 28 U.S.C. § 636(c)(1), Peralta consented to the
jurisdiction of the magistrate judge.
              **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

tk/Research
        Cion Adonis Peralta, a California state prisoner, appeals pro se from the

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

defendants acted with deliberate indifference to his medical needs. We have

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

dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). We may affirm on any basis supported by the record. Dittman v.

California, 191 F.3d 1020, 1027 n.3 (9th Cir. 1999). We affirm.

        The district court properly dismissed Peralta’s action because his allegations

of inadequate care state, 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.”); Sanchez v. Vild, 891 F.2d 240, 241-42 (9th

Cir. 1989) (holding that a difference of opinion about the best course of medical

treatment does not amount to deliberate indifference); see also Steckman v. Hart

Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (stating that the general rule

that parties are allowed to amend their pleadings does not extend to cases where

amendment would be futile).

        Peralta’s remaining contentions are unpersuasive.

        AFFIRMED.


tk/Research                                2                                     09-15014
