                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 07 2011

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




                             FOR THE NINTH CIRCUIT



JIMMIE A. SMITH,                                 No. 09-56548

               Plaintiff - Appellant,            D.C. No. 2:07-cv-05712-CJC-
                                                 AGR
  v.

J. FITTER, M.D. and H. CASSIM, M.D.,             MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                           Submitted December 14, 2010 **

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

       California state prisoner Jimmie A. Smith appeals pro se from the district

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

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.




          *
             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).
§ 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 Smith did

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

disregarded any excessive risks to him. See id. at 1057–58 (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); Wood v.

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (“mere malpractice, or even

gross negligence, does not suffice”).

      AFFIRMED.




                                          2                                   09-56548
