Martin Partida Gaona v. Kushner;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Gaona 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NOT FOR PUBLICATION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
MARTIN PARTIDA GAONA,
Plaintiff - Appellant,
v.
KUSHNER; et al.,
Defendants - Appellees.
No. 11-15155
D.C. No. 1:06-cv-00865-SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding**
Submitted February 21, 2012***
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Martin Partida Gaona, a Califonia state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C.§ 1983 action alleging deliberate
FILED
MAR 06 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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indifference to serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
We affirm.
The district court properly dismissed Gaona’s action for failure to state a
claim because Gaona failed to allege facts showing that defendants acted with
deliberate indifference in the treatment of his infection with Valley Fever. See
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (deliberate indifference is a
high legal standard; malpractice or negligence does not constitute an Eighth
Amendment violation).
The district court did not abuse its discretion in denying Gaona leave to
amend his third amended complaint, where it had previously provided notice of the
complaint’s deficiencies and granted leave to amend. See Chodos v. West Publ’g
Co., 292 F.3d 992, 1003 (9th Cir. 2009) (setting forth standard of review and
noting that court’s discretion is particularly broad where it has already granted
leave to amend).
The district court did not abuse its discretion in denying Gaona’s motion for
appointment of counsel because Gaona failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for

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appointment of counsel).
Gaona’s remaining contentions are unpersuasive.
AFFIRMED.

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