Nicolas Moran v. M. LEVIN, Medical Doctor;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
JK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLAS MORAN,
Plaintiff - Appellant,
v.
M. LEVIN, Medical Doctor; et al.,
Defendants - Appellees.
No. 08-55799
D.C. No. 3:07-cv-01020-JM-POR
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Nicolas Moran, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action under 28 U.S.C.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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JK/Research 08-55799 2
§§ 1915(e)(2) and 1915A for failure to state a claim. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a 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 dismissed Moran’s deliberate indifference claims
because the allegations set forth in his second amended complaint and the
attachments thereto state, at most, a claim for malpractice or negligence. See
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“A showing of medical
malpractice or negligence is insufficient to establish a constitutional deprivation
under the Eighth Amendment.”). Moreover, a difference in opinion between
Moran and the prison physicians about the preferred course of medical treatment
does not constitute an Eighth Amendment violation. See id. at 1058. Finally, as to
defendant Athannassious, Moran failed to allege facts to show the sufficiently
culpable state of mind that is required to establish deliberate indifference. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Moran’s remaining contentions are unpersuasive.
AFFIRMED.

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