                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 25 2012

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




                             FOR THE NINTH CIRCUIT



JOSEPH GILBERT,                                   No. 11-15576

               Plaintiff - Appellant,             D.C. No. 1:09-cv-02050-AWI-
                                                  DLB
  v.

JAMES A. YATES, Warden; et al.,                   MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Anthony W. Ishii, Chief Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       California state prisoner Joseph Gilbert appeals from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging defendants were

deliberately indifferent to his serious medical needs. We have jurisdiction under




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to

state a claim under 28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii). 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 Gilbert’s action because Gilbert failed

to allege facts in his first amended complaint suggesting that defendants acted with

deliberate indifference. See Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.

2012) (difference of medical opinion is insufficient to establish deliberate

indifference); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate

indifference is a high legal standard. A showing of medical malpractice or

negligence is insufficient to establish a constitutional deprivation under the Eighth

Amendment.”); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir.

1991) (en banc) (supervisory liability exists even without overt personal

participation only when the supervisory official “implement[s] a policy so deficient

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

of the constitutional violation” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by dismissing Gilbert’s first

amended complaint without leave to amend. See Chodos v. West Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002) (explaining that after the district court has already


                                           2                                     11-15576
granted plaintiff leave to amend, its discretion in allowing further amendment is

particularly broad).

      Gilbert’s request for judicial notice, filed on June 23, 2011, is granted.

      AFFIRMED.




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