FILED
NOT FOR PUBLICATION AUG 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KENNETH EMANUEL BAPTISTE, No. 10-16492
Plaintiff - Appellant, D.C. No. 2:08-cv-01420-HDM-
RAM
v.
G. DUNN; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Howard D. McKibben, District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Kenneth Emanuel Baptiste, a California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to dental needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. §§ 1915A and
*
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).
1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part,
reverse in part, vacate in part, and remand.
The district court concluded that Baptiste had not stated a claim for
deliberate indifference to dental needs and denied leave to amend except as to three
defendants. However, a review of the complaint indicates that Baptiste stated a
claim of deliberate indifference as to all defendants except Kimura-Yip regarding
the denial of treatment for his periodontal disease because Baptiste alleged that
defendants knew of and disregarded the possibility of adverse long-term effects to
his health arising from the failure to check the progress of the disease. See Helling
v. McKinney, 509 U.S. 25, 32-35 (1993) (Eighth Amendment deliberate
indifference claim can be based on threat of future harm). We reverse the district
court’s judgment as to this claim and remand for further proceedings.
The district court properly concluded that Baptiste had failed to state a claim
regarding the delay in replacing his dentures because he did not sufficiently allege
harm associated with the delay. However, on remand, Baptiste should be
permitted to amend his complaint to allege what harm, if any, was caused by the
delay in replacing his dentures. See, e.g., Hunt v. Dental Dep’t, 865 F.2d 198, 199-
200 (9th Cir. 1989) (allegation of three-month delay in replacing dentures,
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resulting in broken teeth, bleeding gums, pain, and weight loss, stated a claim of
deliberate medical indifference sufficient to survive summary judgment). We
vacate the district court’s judgment as to this claim and remand for further
proceedings.
The district court properly dismissed Baptiste’s claims as to defendant
Kimura-Yip because Baptiste alleged no facts establishing that she was
deliberately indifferent to his health or safety, and further amendment as to her
would be futile. We affirm the district court’s judgment as to these claims.
The district court did not abuse its discretion by denying Baptiste’s motion
for appointment of counsel because Baptiste failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
Baptiste shall bear his costs on appeal.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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