                                                                           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                            NOT FOR PUBLICATION                             MAR 15 2012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
