                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 22 2011

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




                             FOR THE NINTH CIRCUIT



LeGRANTE V. ELLIS,                                No. 10-16145

               Plaintiff - Appellant,             D.C. No. 1:07-cv-01351-LJO-
                                                  WMW
  v.

JAMES E. TILTON; et al.,                          MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       California state prisoner LeGrante V. Ellis appeals pro se from the district

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

were deliberately indifferent to his serious medical condition. We have jurisdiction

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

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

abuse of discretion the denial of leave to amend, Chodos v. West Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002). We affirm.

      The district court properly dismissed Ellis’s action because Ellis failed to

allege facts in his first amended complaint showing that defendants acted with

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

2004) (“Deliberate indifference is a high legal standard. A showing of medical

malpractice or negligence is insufficient to establish a constitutional deprivation

under the Eighth Amendment.”).

      The district court did not abuse its discretion by dismissing without leave to

amend after providing Ellis with one opportunity to amend and concluding that

further amendment would be futile. See Cato v. United States, 70 F.3d 1103,

1106-07 (9th Cir. 1995) (dismissal without leave to amend is not an abuse of

discretion where amendment would be futile).

      AFFIRMED.




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