                                                                            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                             NOT FOR PUBLICATION                             AUG 18 2011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,


                                           2                                   10-16492
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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