                                                                           FILED
                           NOT FOR PUBLICATION                             APR 14 2014

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



                            FOR THE NINTH CIRCUIT


ROBERTO HERRERA, AKA Roberto                     No. 13-16358
Torres Herrera,
                                                 D.C. No. 1:12-cv-01915-GSA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

H. NGUYEN,

              Defendant - Appellee.


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

                             Submitted April 7, 2014***

Before:       TASHIMA, GRABER, and IKUTA, Circuit Judges.

       California state prisoner Roberto Herrera, AKA Roberto Torres Herrera,


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            Herrera 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).
appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983

action alleging deliberate indifference to serious medical needs. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630

F.3d 889, 892 (9th Cir. 2011) (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)). We affirm.

      The district court properly dismissed Herrera’s action because Herrera failed

to allege facts sufficient to show that defendant was deliberately indifferent to his

chronic pain. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to

demonstrate deliberate indifference, the prisoner must show “a purposeful act or

failure to respond to a prisoner’s pain or possible medical need” and “harm caused

by the indifference”); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)

(“[M]edical malpractice or negligence is insufficient to establish a constitutional

deprivation under the Eighth Amendment.”).




                                           2                                    13-16358
      The district court did not abuse its discretion by denying Herrera’s motion

for appointment of counsel because Herrera failed to demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting

forth standard of review and explaining “exceptional circumstances” requirement).

      AFFIRMED.




                                         3                                   13-16358
