                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 03 2013

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




                              FOR THE NINTH CIRCUIT



KENNETH PEARSON,                                  No. 12-15036

                Plaintiff - Appellant,            D.C. No. 1:11-cv-00072-DLB

  v.
                                                  MEMORANDUM *
JAMES A. YATES, Warden, Warden at
PVSP; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Dennis L. Beck, Magistrate Judge, Presiding **

                            Submitted December 19, 2012 ***

Before:         GOODWIN, WALLACE, and FISHER, Circuit Judges.

       California state prisoner Kenneth Pearson appeals pro se from the district




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

          **
            Pearson 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).
court’s 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 a dismissal under 28 U.S.C. § 1915A for failure to

state a claim, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we affirm.

      The magistrate judge properly dismissed the action because Pearson failed to

allege facts in his amended complaint sufficient to demonstrate that the defendants

acted with deliberate indifference with regard to his treatment for

coccidioidomycosis. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

(a prison official acts with deliberate indifference only if he or she knows of and

disregards an excessive risk to the prisoner’s health and safety and a showing of

medical malpractice or negligence is insufficient to establish an Eighth

Amendment violation); see also Hansen v. Black, 885 F.2d 642, 646 (9th Cir.

1989) (to state a claim for relief under § 1983 for supervisory liability, plaintiff

must allege some facts indicating that the defendant personally participated in the

alleged deprivation of constitutional rights; knew of the violations and failed to act

to prevent them; or promulgated or implemented a policy so deficient that the

policy itself is a repudiation of constitutional rights and is the moving force of the

constitutional violation).

      AFFIRMED.


                                            2                                     12-15036
