NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT DONALD JOSHUA SMITH, No. 22-16225

Plaintiff-Appellant, D.C. No. 2:21-cv-00420-TLN-EFB v.

MEMORANDUM* OMONIYI AKINTOLA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Submitted February 14, 2023** Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.

California state prisoner Donald Joshua Smith appeals pro se from the district court’s summary judgment in 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. Gordon v. County of Orange, 888 F.3d

*

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). 1118, 1122 (9th Cir. 2018). We affirm.

The district court properly granted summary judgment because Smith failed to raise a genuine dispute of material fact as to whether defendant Akintola was deliberately indifferent in treating Smith’s medical conditions. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (explaining that 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).

AFFIRMED.

2 22-16225