                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 10 2013

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




                              FOR THE NINTH CIRCUIT



ELBERT LEE VAUGHT, IV,                            No. 13-15055

                Plaintiff - Appellant,            D.C. No. 1:11-cv-00623-GBC

  v.
                                                  MEMORANDUM *
G. UGWUEZE, M.D.; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Gerald B. Cohn, Magistrate Judge, Presiding **

                           Submitted September 24, 2013 ***

Before:         RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Elbert Lee Vaught, IV, a California state prisoner, appeals pro se from the

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


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            Vaught 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).
indifference to his health and safety. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s 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 Vaught’s action because Vaught failed

to allege facts in his second amended complaint showing that defendants knew of

and disregarded an excessive risk to Vaught’s health or safety. See Toguchi v.

Chung, 391 F.3d 1051, 1057-58, 1060 (9th Cir. 2004) (a prison official is

deliberately indifferent only if he or she knows of and disregards an excessive risk

to an inmate’s health or safety; 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).

      AFFIRMED.




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