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 2021-02

Jose Calderon v. Magdy Danials ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUADALUPE CALDERON,                        No. 20-15771
Plaintiff-Appellant,            D.C. No. 1:19-cv-01734-DAD-SAB
v.
MEMORANDUM*
MAGDY DANIALS, Doctor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted February 17, 2021**
Before:      FERNANDEZ, BYBEE, and BADE, Circuit Judges.
California state prisoner Jose Guadalupe Calderon appeals pro se from the
district court’s judgment dismissing his
    42 U.S.C. § 1983
     action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo. Watison v. Carter,
    668 F.3d 1108
    , 1112 (9th Cir.
*
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).
2012) (dismissal under
    28 U.S.C. § 1915
    (e)(2)(B)(ii)); Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Calderon’s action because Calderon
failed to allege facts sufficient to show that defendants were deliberately
indifferent in treating his gout, and failing to consider other diagnoses. See
Toguchi v. Chung,
    391 F.3d 1051
    , 1057-60 (9th Cir. 2004) (holding that deliberate
indifference is a high legal standard and a prison official is deliberately indifferent
only if he or she knows of and disregards an excessive risk to inmate health;
medical malpractice, negligence, or a difference of opinion concerning the course
of treatment does not amount to deliberate indifference).
We reject as meritless Calderon’s contention that the district court did not
liberally construe his pleadings.
We do not consider documents not presented to the district court. See
United States v. Elias,
    921 F.2d 870
    , 874 (9th Cir. 1990).
Calderon’s motion for appointment of counsel (Docket Entry No. 5) is
denied. The Clerk will file the opening brief received at Docket Entry No. 9.
AFFIRMED.
2                                     20-15771