FILED
NOT FOR PUBLICATION MAR 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREW BORGERDING, No. 08-56465
Plaintiff - Appellant, D.C. No. 5:07-cv-00581-OP
v.
MEMORANDUM *
STATE OF CALIFORNIA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Oswald Parada, Magistrate Judge, Presiding **
Submitted February 16, 2010 ***
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented in writing to proceed before a magistrate judge.
See 28 U.S.C. § 636(c)(1).
* **
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
LSS/Research
Former California state prisoner Andrew Borgerding appeals from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his medical needs. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo a grant of summary judgment. Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We reverse and remand.
Summary judgment was improper because Borgerding established a triable
issue as to whether defendants acted with deliberate indifference to his serious
medical needs by failing to ensure the timely removal of his impacted wisdom
teeth. A reasonable jury could conclude that defendant Gorton was deliberately
indifferent to Borgerding’s health in delaying extraction because he observed
Borgerding enduring the painful effects of the impacted wisdom teeth for at least a
year, he knew that two prior dentists had already concluded that extraction was
necessary, and there is expert testimony suggesting that Gorton’s treatment
violated well-accepted standards of dental care. See Jackson v. McIntosh, 90 F.3d
330, 332 (9th Cir. 1996) (holding that where a prisoner shows that the course of
treatment the doctors chose was “medically unacceptable under the circumstances,
. . . in conscious disregard of an excessive risk to [the prisoner’s] health[,]” he will
have shown deliberate indifference); see also Toguchi, 391 F.3d at 1058.
LSS/Research 2 08-56465
Similarly, summary judgment for defendant Van Mohr was improper, given
that Borgerding demonstrated a triable issue as to whether Van Mohr was aware
that Borgerding’s lower wisdom teeth were in need of extraction, yet failed to take
medically-necessary responsive measures. See id.
REVERSED and REMANDED.
LSS/Research 3 08-56465