Joseph Gilbert v. JAMES A. YATES, Warden;

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NOT FOR PUBLICATION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
JOSEPH GILBERT,
Plaintiff - Appellant,
v.
JAMES A. YATES, Warden; et al.,
Defendants - Appellees.
No. 11-15576
D.C. No. 1:09-cv-02050-AWI-
DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
California state prisoner Joseph Gilbert appeals from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging defendants were
deliberately indifferent to his serious medical needs. We have jurisdiction under
FILED
JUL 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to
state a claim under 28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii). Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (order). We affirm.
The district court properly dismissed Gilbert’s action because Gilbert failed
to allege facts in his first amended complaint suggesting that defendants acted with
deliberate indifference. See Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.
2012) (difference of medical opinion is insufficient to establish deliberate
indifference); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate
indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir.
1991) (en banc) (supervisory liability exists even without overt personal
participation only when the supervisory official “implement[s] a policy so deficient
that the policy itself is a repudiation of constitutional rights and is the moving force
of the constitutional violation” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing Gilbert’s first
amended complaint without leave to amend. See Chodos v. West Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002) (explaining that after the district court has already

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granted plaintiff leave to amend, its discretion in allowing further amendment is
particularly broad).
Gilbert’s request for judicial notice, filed on June 23, 2011, is granted.
AFFIRMED.

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