                                                                           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                               NOT FOR PUBLICATION                          MAR 09 2010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
