                                                                           FILED
                                                                            JUN 14 2010
                             NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



EDWARD LEE THOMAS,                               No. 09-16330

               Plaintiff - Appellant,            D.C. No. 1:06-cv-00104-LJO-YNP

  v.
                                                 MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Edward Lee Thomas, a California state prisoner, appeals pro se from the

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


          *
             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).
indifference to his leg and hip pain. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a dismissal under 28 U.S.C. § 1915A, Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000), and we affirm.

      The district court properly dismissed the action because Thomas did not

allege facts showing that defendants were deliberately indifferent to a serious

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

prison official acts with deliberate indifference only if he “knows of and disregards

an excessive risk to inmate health and safety”) (internal quotation marks and

citation omitted). On the contrary, Thomas’s allegations that certain doctors

declined to order x-rays or MRIs, other doctors treated him with only Motrin, and a

nurse practitioner concluded that Thomas did not present a medical emergency,

indicates at most negligence. See id. (“Mere negligence in diagnosing or treating a

medical condition, without more, does not violate a prisoner’s Eighth Amendment

rights.”) (internal quotation marks and citation omitted).

      Thomas’s remaining contentions are unpersuasive.

      We deny Thomas’s motion for appointment of counsel. See Terrell v.

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

      AFFIRMED.




                                          2                                       09-16330
