Gerald Miller, Jr. v. J. Akanno , 670 F. App'x 449 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD LEE MILLER, Jr., No. 15-16715
Plaintiff-Appellant, D.C. No. 1:12-cv-01013-LJO-SKO
v.
MEMORANDUM*
J. AKANNO, Dr.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Gerald Lee Miller, Jr., a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
retaliation and deliberate indifference to his serious medical needs. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1915A, Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011), and we
affirm.
The district court properly dismissed Miller’s retaliation and deliberate
indifference claims against defendants Japee and Zamora because Miller failed to
allege facts sufficient to state either claim. See Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a
plaintiff must present factual allegations sufficient to state a plausible claim for
relief); Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth
elements of a retaliation claim in the prison context); 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).
The district court did not abuse its discretion by denying Miller leave to
amend after providing him with an opportunity to amend. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that leave to amend should be given unless
amendment would be futile); see also Chodos v. West Publ’g Co., 292 F.3d 992,
1003 (9th Cir. 2002) (a district court’s discretion to deny leave to amend is
particularly broad when it has afforded plaintiff one or more opportunities to
2 15-16715
amend).
AFFIRMED.
3 15-16715