                                                                            FILED
                              NOT FOR PUBLICATION                           NOV 27 2015

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



                               FOR THE NINTH CIRCUIT


CARLOS SMITH,                                      No. 14-17474

                 Plaintiff - Appellant,            D.C. No. 1:14-cv-00429-MJS

 v.
                                                   MEMORANDUM*
LARRY DILEO, Doctor at Kern Valley
State Prison; et al.,

                 Defendants - Appellees.


                      Appeal from the United States District Court
                          for the Eastern District of California
                      Michael J. Seng, Magistrate Judge, Presiding**

                            Submitted November 18, 2015***

Before:         TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

      California state prisoner Carlos Smith appeals pro se from the district court’s

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

          **    Smith 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).
judgment dismissing 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. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal

under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

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

allege facts sufficient to show that defendants were deliberately indifferent to his

Hepatitis C infection and severe pain. See Hebbe v. Pliler, 627 F.3d 338, 341-42

(9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must

still present factual allegations sufficient to state a plausible claim for relief); see

also Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a prison official is

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

to inmate health; neither a difference of opinion concerning the course of treatment

nor negligence in diagnosing or treating a medical condition amounts to deliberate

indifference).

       The district court did not abuse its discretion by denying Smith leave to

amend his second amended complaint after providing him with two opportunities

to amend and concluding that further amendment would be futile. See Chappel v.

Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of


                                             2                                      14-17474
review and explaining that “[a] district court acts within its discretion to deny leave

to amend when amendment would be futile”); see also Gonzalez v. Planned

Parenthood of L.A., 759 F.3d 1112, 1116 (9th Cir. 2014) (“[T]he district court’s

discretion in denying amendment is particularly broad when it has previously given

leave to amend.” (citation and internal quotation marks omitted)).

      AFFIRMED.




                                           3                                    14-17474
