Ester Burnett v. JACK ST. CLAIR, Chief Medical Officer; CLAY, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Burnett consented to proceed before a magistrate judge. See 28*
*
U.S.C. § 636(c).
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NOT FOR PUBLICATION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
ESTER BURNETT,
Plaintiff - Appellant,
v.
JACK ST. CLAIR, Chief Medical Officer;
CLAY, Warden,
Defendants - Appellees.
No. 11-16996
D.C. No. 1:10-cv-00822-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted November 13, 2012***
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Ester Burnett, a California state prisoner, appeals pro se from the district
FILED
NOV 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2). 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 Burnett’s Eighth Amendment claim
because Burnett failed to allege facts establishing that any defendants consciously
disregarded his serious medical needs. See Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004) (a prison official is deliberately indifferent only if he knows
of and disregards an excessive risk to an inmate’s health or safety; mere negligence
does not constitute deliberate indifference); see also Steckman v. Hart Brewing,
Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[W]e are not required to accept as
true conclusory allegations which are contradicted by documents referred to in the
complaint.”).
The district court properly dismissed Burnett’s due process claim after it
determined that the Eighth Amendment provided the proper basis for evaluating
his allegations that defendants disregarded his serious medical needs. See County
of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“[W]here a particular
Amendment provides an explicit textual source of constitutional protection against

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a particular sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing
these claims.” (citations and internal quotation marks omitted).
The district court properly determined that Burnett’s allegations regarding
the cancellation of his appointment failed to state a claim for a violation of section
845.6 of the California Government Code. See Cal. Govt. Code § 845.6; Watson v.
State, 26 Cal. Rptr. 2d 262, 265 (Ct. App. 1993) (liability under section 845.6 is
limited to situations where defendants intentionally or unjustifiably fail to respond
to “serious and obvious conditions requiring immediate care”).
AFFIRMED.

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