                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 09 2012

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




                             FOR THE NINTH CIRCUIT



STEVE ALAN MAHONEY,                              No. 11-35169

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05140-RBL

  v.
                                                 MEMORANDUM *
KITSAP COUNTY JAIL; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Former Washington state prisoner Steve Alan Mahoney appeals pro se from

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

deliberate indifference to his serious medical needs. We have jurisdiction under 28




          *
             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).
U.S.C. § 1291. We review de novo a judgment on the pleadings under Fed. R. Civ.

P. 12(c) and dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We affirm.

      The district court properly dismissed with prejudice the claims against

defendant Johnson because Mahoney’s factual allegations and the attachments to

the operative complaint show that Johnson did not act with deliberate indifference

to Mahoney’s medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1057-58 (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;

negligence and a mere difference in medical opinion are insufficient to establish

deliberate indifference); Nat’l Ass’n. for the Advancement of Psychoanalysis v.

Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (explaining “we may

consider facts contained in documents attached to the complaint” in determining

whether the complaint states a claim for relief).

      The district court properly granted Kitsap County Jail’s motion to dismiss

with prejudice because the jail is not a legal entity subject to suit under § 1983.

See Wash. Rev. Code § 4.96.010(2). The district court did not abuse its discretion

in denying Mahoney’s motion to amend the complaint to substitute Kitsap County

as the municipal defendant because such an amendment would be futile. See


                                           2                                        11-35169
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (setting forth standard of

review and noting that “[f]utility alone can justify the denial of a motion to amend”

(citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by dismissing without

prejudice the claims against defendants Luce and Jeuuk because Mahoney failed to

effectuate service in a timely manner. See Walker v. Sumner, 14 F.3d 1415, 1422

(9th Cir. 1994) (setting forth standard of review and holding that an incarcerated

pro se plaintiff proceeding in forma pauperis must provide the marshal with

sufficient information necessary for service), abrogated on other grounds by

Sandin v. Conner, 515 U.S. 472 (1995); Benny v. Pipes, 799 F.2d 489, 492 (9th

Cir. 1986) (“A federal court is without personal jurisdiction over a defendant

unless the defendant has been served in accordance with Fed. R. Civ. P. 4.”).

      Mahoney’s remaining contentions are unpersuasive.

      AFFIRMED.




                                          3                                      11-35169
