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NOT FOR PUBLICATION DEC 27 2010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.

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