Ronald Whitmire v. Gary Graham

MEMORANDUM

Nevada state prisoner Ronald Whitmire appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants were deliberately indifferent to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s dismissal under 28 U.S.C. § 1915A but we review for abuse of discretion its decision to do so without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc). We affirm in part, and vacate and remand in part.

The district court properly dismissed without leave to amend Whitmire’s complaint against the medical staff who treated him because his allegations fail to state a claim for deliberate indifference and amendment appears futile. See Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir.2004) (mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment rights); see also Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by…