FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICKY W. JAMES, No. 10-17911
Plaintiff - Appellant, D.C. No. 1:08-cv-00351-DLB
v.
MEMORANDUM *
J. WILBER, D.D.S.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding **
Submitted March 6, 2012 ***
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Ricky W. James, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. §1983 action alleging deliberate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
indifference to his serious dental needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment to defendants Wilber
and Johnson because James failed to raise a genuine dispute of material fact as to
whether those defendants were deliberately indifferent to his dental problems and
associated pain. See id. at 1059-60 (mistakes, negligence or malpractice do not rise
to an Eighth Amendment violation, nor does a difference of opinion about the
preferred course of treatment).
The evidence as to defendant Saenz, however, viewed in the light most
favorable to James, raises a triable dispute as to whether Saenz was deliberately
indifferent to James’s serious dental needs. James repeatedly told Saenz that he
was suffering from severe pain from an abscessed tooth, his dentures had broken
and he could not eat properly, yet Saenz failed to relieve his pain or ensure that he
was promptly seen by qualified medical or dental personnel. See Hunt v. Dental
Dep’t, 865 F.2d 198, 200-01 (9th Cir. 1989) (explaining that dental care is one of
the most important medical needs of inmates, and reversing summary judgment for
officials who were aware of inmate’s “bleeding gums, breaking teeth and his
inability to eat properly, yet failed to take any action to relieve his pain”).
2 10-17911
Moreover, Saenz admits that she is not qualified to evaluate dental conditions or
perform medical evaluations but nonetheless determined that James was not
entitled to emergency medical attention. Accordingly, we reverse the grant of
summary judgment as to Saenz and remand for further proceedings.
James’s remaining contentions are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
3 10-17911
James v. Wilber, No. 10-17911
TASHIMA, Circuit Judge, concurring in part and dissenting in
part:
I would affirm summary judgment as to L.V.N. Saenz.
4 10-17911