NOT FOR PUBLICATION FILED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