Kenneth Pearson v. JAMES A. YATES, Warden, Warden at PVSP;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Pearson 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NOT FOR PUBLICATION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
KENNETH PEARSON,
Plaintiff - Appellant,
v.
JAMES A. YATES, Warden, Warden at
PVSP; et al.,
Defendants - Appellees.
No. 12-15036
D.C. No. 1:11-cv-00072-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding**
Submitted December 19, 2012***
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
California state prisoner Kenneth Pearson appeals pro se from the district
FILED
JAN 03 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-15036 2
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915A for failure to
state a claim, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we affirm.
The magistrate judge properly dismissed the action because Pearson failed to
allege facts in his amended complaint sufficient to demonstrate that the defendants
acted with deliberate indifference with regard to his treatment for
coccidioidomycosis. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
(a prison official acts with deliberate indifference only if he or she knows of and
disregards an excessive risk to the prisoner’s health and safety and a showing of
medical malpractice or negligence is insufficient to establish an Eighth
Amendment violation); see also Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989) (to state a claim for relief under § 1983 for supervisory liability, plaintiff
must allege some facts indicating that the defendant personally participated in the
alleged deprivation of constitutional rights; knew of the violations and failed to act
to prevent them; or promulgated or implemented a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of the
constitutional violation).
AFFIRMED.

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