Tracye Bernard Washington v. K. Harrington;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACYE BERNARD WASHINGTON,
Plaintiff - Appellant,
v.
K. HARRINGTON; et al.,
Defendants - Appellees.
No. 12-16996
D.C. No. 1:11-cv-00848-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding**
Submitted November 19, 2013***
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
California state prisoner Tracye Bernard Washington appeals from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
FILED
DEC 11 2013
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.
** Washington 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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indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal under 28 U.S.C.
§§ 1915A and 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 Washington’s action because
Washington failed to allege facts in his operative amended complaint showing that
defendants knew of and disregarded an excessive risk to Washington’s health. See
Toguchi v. Chung, 391 F.3d 1051, 1057-58, 1060 (9th Cir. 2004) (a prison official
is deliberately indifferent only if he or she knows of and disregards an excessive
risk to an inmate’s health; neither a prisoner’s difference of opinion concerning the
course of treatment nor mere negligence in diagnosing or treating a medical
condition amounts to deliberate indifference); see also Starr v. Baca, 652 F.3d
1202, 1207-08 (9th Cir. 2011) (setting forth requirements for supervisory liability).
Washington’s contention that the district court failed to construe his pro se
complaint liberally is unsupported by the record. See Hebbe v. Pliler, 627 F.3d
338, 341-42 (9th Cir. 2010) (though pro se pleadings are to be liberally construed,
a plaintiff must still present factual allegations sufficient to state a plausible claim
for relief).
12-16996 2

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Washington’s request for judicial notice, filed on May 15, 2013, is denied.
AFFIRMED.
12-16996 3

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