                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          FEB 27 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

DONALD D’AMICO,                                  No. 13-15523

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00860-RCJ-VPC

  v.
                                                 MEMORANDUM*
ROBERT B. BANNISTER; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Robert C. Jones, Chief Judge, Presiding

                            Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Nevada state prisoner Donald D’Amico appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d, 1056 (9th Cir. 2004),

          *
             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).
and we affirm.

      The district court properly granted summary judgment because D’Amico

failed to establish a genuine dispute of material fact as to whether defendants acted

with deliberate indifference by not providing him with physical therapy. See id. at

1057-58 (prison officials act with deliberate indifference only if they know of and

disregard an excessive risk to inmate health; neither a prisoner’s difference of

opinion concerning the course of treatment nor mere negligence in diagnosing or

treating a medical condition amounts to deliberate indifference).

      Moreover, even though D’Amico submitted his opposition brief to

defendants’ motion for summary judgment after the magistrate judge issued its

report and recommendation, the district court noted in its order that it had

considered all relevant filings. Accordingly, we reject D’Amico’s contention that

the district court did not consider his opposition brief.

      AFFIRMED.




                                            2                                  13-15523
