Marvin Fleming v. United States ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             DEC 27 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T O F AP PE ALS
    FOR THE NINTH CIRCUIT
    MARVIN FLEMING,                                  No. 10-15148
    Plaintiff - Appellant,            D.C. No. 1:07-cv-00461-OWW-
    WMW
    v.
    UNITED STATES OF AMERICA; et al.,                MEMORANDUM *
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    Oliver W. Wanger, District Judge, Presiding
    Submitted December 14, 2010 **
    Before:        GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
    Marvin Fleming, a federal prisoner, appeals pro se from the district court’s
    judgment in his action brought under Bivens v. Six Unknown Named Agents of
    Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971), alleging deliberate indifference
    to serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2), Barren
    v. Harrington, 
    152 F.3d 1193
    , 1194 (9th Cir. 1998) (order), and 28 U.S.C.
    § 1915A, Resnick v. Hayes, 
    213 F.3d 443
    , 447 (9th Cir. 2000). We affirm.
    The district court properly concluded that Fleming failed to state a claim for
    deliberate indifference with regard to the treatment he received for his eye injury.
    See Toguchi v. Chung, 
    391 F.3d 1051
    , 1057 (9th Cir. 2004) (a prison defendant
    acts with deliberate indifference only if he knows of and disregards an excessive
    risk to inmate health and safety). Inadequate treatment due to malpractice, or even
    gross negligence, does not amount to a constitutional violation. See 
    id. at 1060.
    We do not consider matters not specifically and distinctly raised and argued
    in the opening brief. See Padgett v. Wright, 
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
    Fleming’s remaining contentions are unpersuasive.
    AFFIRMED.
    2                                    10-15148