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United States Court of Appeals, Ninth Circuit.

Jose Guadalupe CALDERON, Plaintiff-Appellant, v. Magdy DANIALS, Doctor; et al., Defendants-Appellees.

No. 20-15771

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Jose Guadalupe Calderon, Pro Se


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. 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.


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