                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 20 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 JAMES ERNEST ROJO, AKA James Rojo,              No.    15-16703
 AKA James E. Rojo,
                                                 D.C. No. 3:12-cv-02518-VC
                 Plaintiff-Appellant,

   v.                                            MEMORANDUM*

 DARREN BRIGHT, Chief Medical Officer;
 et al.,

                 Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Vince G. Chhabria, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

   James Ernest Rojo, a California state prisoner, appeals pro se from the district

court’s judgment in his action under 42 U.S.C. § 1983 and Title II of the

Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)

(failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We may affirm on any

basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360

F.3d 930, 933 (9th Cir. 2004). We affirm.

   Summary judgment on Rojo’s deliberate indifference claim was proper because

Rojo failed to raise a genuine dispute of material fact as to whether defendant

Bright was deliberately indifferent in treating Rojo’s mobility problems. See

Toguchi, 391 F.3d at 1057-60 (a prison official acts with deliberate indifference

only if he or she knows of and disregards an excessive risk to the prisoner’s health;

negligence, medical malpractice, or a difference in opinion are insufficient to

establish deliberate indifference).

   The district court properly dismissed Rojo’s ADA claim because Rojo failed to

allege facts sufficient to show that defendants failed to act on Rojo’s need for an

accommodation. See Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (a

“deliberate indifference” standard applies to actions seeking compensatory

damages under Title II of the ADA, requiring “both knowledge that a harm to a




                                          2                                    15-16703
federally protected right is substantially likely, and a failure to act upon that

likelihood”).

   AFFIRMED.




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