                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 07 2011

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




                            FOR THE NINTH CIRCUIT



JERALD TUCKER,                                    No. 10-17639

              Plaintiff - Appellant,              D.C. No. 1:09-cv-00333-GSA

  v.
                                                  MEMORANDUM *
FRESNO COMMUNITY MEDICAL
CENTER and L. PETERSON, Nurse,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Gary S. Austin, Magistrate Judge, Presiding **

                          Submitted September 27, 2011 ***

Before:       HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Jerald Tucker, a California state prisoner, appeals pro se from the district

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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
            Tucker consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
were deliberately indifferent to his medical needs in the treatment of his back

injury. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d

443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998) (order). We affirm.

      The district court properly dismissed the action because Tucker failed to

allege facts suggesting that defendants knew of and disregarded an excessive risk

of harm to his health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Toguchi

v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high

legal standard. Even 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 denying leave to amend.

See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (leave to

amend may be denied if amendment would be futile).

      AFFIRMED.




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