MARSHALL BURGESS, Jr. v. David Mar;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARSHALL BURGESS, Jr.,
Plaintiff - Appellant,
v.
DAVID MAR; et al.,
Defendants - Appellees.
No. 09-17070
D.C. No. 2:08-cv-1251-RLH-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Submitted August 23, 2010**
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Marshall Burgess, Jr., a Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to serious medical needs. We have jurisdiction under 28 U.S.C.
FILED
SEP 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1291. We review de novo, Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001),
and we affirm.
The district court properly dismissed Burgess’s section 1983 damages claims
against prison officials in their official capacity, and against various Nevada prison
agencies, medical departments, and pharmacies. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (state officials acting in their official capacity are
not persons for purposes of money damages claims under section 1983); Montana
v. Goldin, 394 F.3d 1189, 1195 (9th Cir. 2005) (unless they specifically waive their
immunity, states and state agencies are immune under the Eleventh Amendment
from private actions for damages or injunctive relief in federal court).
The district court also properly dismissed Burgess’s claims against various
prison medical personnel in their individual capacities because their alleged
misdiagnoses of his foot and stomach pain and alleged failure to warn him of the
potential side effects of pain medicine constitute negligence at most, and not
deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
2004). Moreover, neither the difference in medical opinion between Burgess’s
treating physicians nor Burgess’s own disagreement with their chosen course of
treatment is sufficient to establish deliberate indifference. See id. at 1058.

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The district court did not abuse its discretion in denying Burgess’s motion
for leave to file a second amended complaint after finding that the deficiencies in
his first amended complaint could not be cured by amendment. See Kendall v.
Visa, 518 F.3d 1042, 1051-52 (9th Cir. 2008).
We decline to reach appellees’ remaining contentions.
AFFIRMED.

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