                                                                              FILED
                             NOT FOR PUBLICATION                               APR 01 2010

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




                             FOR THE NINTH CIRCUIT



 JUAN A. PORTILLO,                                 No. 09-55255

               Plaintiff - Appellant,              D.C. No. 3:06-CV-02760-BTM-
                                                   CAB
   v.

 DAVE S. KHATRI; et al.,                           MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Southern District of California
                    Barry Ted Moskowitz, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        California state prisoner Juan A. Portillo appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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indifference to his serious medical needs. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

Cir. 2004). We affirm.

       The district court properly granted summary judgment because Portillo did

not raise a genuine issue of material fact as to whether the defendants knew of and

disregarded an excessive risk to Portillo while treating his kidney stones. See id. at

1057–58 (holding that a prison official acts with deliberate indifference only if he

knows of and disregards an excessive risk to an inmate’s health and safety, and a

difference of opinion about the best course of medical treatment does not amount

to deliberate indifference).

       Portillo’s remaining contentions are unpersuasive.

       AFFIRMED.




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