Marvin Fleming v. United States of America;

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NOT FOR PUBLICATION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
MARVIN FLEMING,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
No. 10-15148
D.C. No. 1:07-cv-00461-OWW-
WMW
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Marvin Fleming, a federal prisoner, appeals pro se from the district court’s
judgment in his action brought under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging deliberate indifference
to serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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10-15148 2
review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2), Barren
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and 28 U.S.C.
§ 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly concluded that Fleming failed to state a claim for
deliberate indifference with regard to the treatment he received for his eye injury.
See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison defendant
acts with deliberate indifference only if he knows of and disregards an excessive
risk to inmate health and safety). Inadequate treatment due to malpractice, or even
gross negligence, does not amount to a constitutional violation. See id. at 1060.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Fleming’s remaining contentions are unpersuasive.
AFFIRMED.

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