ROBERTO HERRERA, AKA Roberto Torres Herrera v. H. Nguyen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO HERRERA, AKA Roberto
Torres Herrera,
Plaintiff - Appellant,
v.
H. NGUYEN,
Defendant - Appellee.
No. 13-16358
D.C. No. 1:12-cv-01915-GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**
Submitted April 7, 2014***
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
California state prisoner Roberto Herrera, AKA Roberto Torres Herrera,
FILED
APR 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Herrera 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).

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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. § 1291. We review de novo. Hamilton v. Brown, 630
F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)(2)). We affirm.
The district court properly dismissed Herrera’s action because Herrera failed
to allege facts sufficient to show that defendant was deliberately indifferent to his
chronic pain. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to
demonstrate deliberate indifference, the prisoner must show “a purposeful act or
failure to respond to a prisoner’s pain or possible medical need” and “harm caused
by the indifference”); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)
(“[M]edical malpractice or negligence is insufficient to establish a constitutional
deprivation under the Eighth Amendment.”).
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The district court did not abuse its discretion by denying Herrera’s motion
for appointment of counsel because Herrera failed to demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and explaining “exceptional circumstances” requirement).
AFFIRMED.
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