Ricky W. JAMES, Plaintiff-Appellant, v. J. WILBER, D.D.S.; et al., Defendants-Appellees, 471 F. App'x 789

MEMORANDUM 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 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”). 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. TASHIMA, Circuit Judge, concurring in part and dissenting in part: I would affirm

summary judgment as to L.V.N. Saenz. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.