NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY PAULINE EDWARDS; et al.,

Plaintiffs

- Appellants,

v.
K. HSIEH, individually; et al.,

Defendants

- Appellees. No. 16

- 16599

D.C. No. 2:15

- cv

- 00590

- JAM

- KJN

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted November 30, 2018 **

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

. Plaintiffs, the heirs of former California inmate and decedent James
Edwards, appeal pro se from the district court’s judgment dismissing their 42

U.S.C. § 1983 action predicated on a violation of the Eighth Amendment’s
proscription against cruel and unusual pun ishment. They allege that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unan imously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

DEC 4 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

D efendant s were deliberately indifferent to James Edwards’s medical needs
resulting in his death. We have jurisdiction of this timely appeal under 28 U.S.C.

§ 129 1. We review de novo a dismissal under Federal Rule of Civil Procedure
12(b)(6)

. Serra v. Lappin , 600 F.3d 1191, 1195 (9th Cir. 2010).

We may affirm on any basis supported by the record. Johnson v. Riverside
Healthcare Sys.

, LP , 534 F.3d 1116, 1121 (9th Cir . 2008)

. We affirm.

Dismissal of P laintiffs’ action was proper because P laintiffs failed to allege

facts sufficient to show that D efendants were deliberately indifferent to James

Edwards’ s aortic stenosis and other medical issues. See Toguchi v. Chung , 391

F.3d 1051, 1057

- 60 (9th Cir. 2004) (a prison official is deliberately indifferent only

if he or she knows of an d disregards an excessive risk to inmate health ).
We have carefully examined the P laintiffs’ three hundred and ten page

operative com

plaint, including James Edwards’s extensive medical records
, medical literature, and a declaration from Dr. Dali Fan, a clinical professor with
the University of California, Davis, in the Division of Cardiology. We are unable
to identify any evidence what soever in their complaint

— including Dr. Fan’s

declaration

—

that would allow a court “t o draw the reasonable inference that the

[ D efendants are] liable for the misconduct alleged. ” Ashcroft v. I qbal , 556 U.S.
662, 678 (2009 ) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)).
Missing from the comp laint is any evidence that the D efendants were deliberately3

indifferent to James Edward s ’s medical needs or that they treated him with
“conscious disregard” of an excessive risk to his health. Jack son v. McIntosh , 90
F.3d 330, 332 ( 9th Cir. 1996). E ven i f we were to conclude that the D efendants
were negligent in their treatment of James Edwards

— which we do not

— “[m]ere
negligence in diagnosing or treating a medical condition, without more, does not
violate a prisoner’s Eighth Amendment rights. ” Toguchi , 391 F.3d at 1057
(quoting McGuckin v. Smith , 974 F.2d 1050, 1059 (9th Cir. 1992) (alteration and
citation omitted)).

Because Dr. Fan’s declaration d id not add any support for the P laintiffs’

claim of deliberate indifference, the district court’s decision to strike it from the

first amended complaint was harmless.

Plaintiffs’ motion for judicial notice (Docket Entry No. 10) is granted

. Defendants County of San Joaquin, Priyasheelta Nand, and Ramesh
Dharawat’s motion to take judicial notice (Docket Entry No. 37) is granted.

AFFIRMED.