Opinion
No. 13-16358 D.C. No. 1:12-cv-01915-GSA
04-07-2014
ROBERTO HERRERA, AKA Roberto Torres Herrera, Plaintiff - Appellant, v. H. NGUYEN, Defendant - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Herrera consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
California state prisoner Roberto Herrera, AKA Roberto Torres Herrera, appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm.
The district court properly dismissed Herrera's action because Herrera failed to allege facts sufficient to show that defendant was deliberately indifferent to his chronic pain. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to demonstrate deliberate indifference, the prisoner must show "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and "harm caused by the indifference"); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) ("[M]edical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.").
The district court did not abuse its discretion by denying Herrera's motion for appointment of counsel because Herrera failed to demonstrate exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting forth standard of review and explaining "exceptional circumstances" requirement).
AFFIRMED.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).