                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 13 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

COLUMBUS ALLEN, Jr.,                             No. 11-15151

              Plaintiff - Appellant,             D.C. No. 1:09-cv-00930-AWI-JLT

  v.
                                                 MEMORANDUM*
COUNTY OF STANISLAUS,

              Appellee,

ADAM CHRISTIANSON, Sheriff-
Coroner; GINA LEGURIA, Policy
Manager; WILLIAM DUNCAN, Cpt.;
BRENDA SUAREZ, Lieutenant;
RONALD LLOYD, Lieutenant; GREGG
CLIFTON, Lieutenant; C. BLAKE,
Sergeant; GALLES, Sergeant; ERNIE
RADZA, Sergeant; V. L. TRUFFA,
Sergeant,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                       Argued and Submitted June 11, 2012


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

      Columbus Allen appeals the district court’s dismissal with prejudice of his

pro se civil rights complaint. We have jurisdiction under 28 U.S.C. § 1291, and we

reverse and remand.

      Allen’s amended complaint states a claim against prison dentist Dr. Cheung

for constitutionally inadequate medical care. Allen alleges in his complaint that

Dr. Cheung refused for months to treat Allen’s serious dental problem based on a

series of “ephemeral and contradictory” reasons. Taking those allegations as true

and drawing all inferences in Allen’s favor, Allen’s complaint establishes that Dr.

Cheung purposefully delayed providing Allen necessary dental treatment and

therefore acted with deliberate indifference to Allen’s serious medical need. See

Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Clement v. Gomez, 298

F.3d 898, 904-05 (9th Cir. 2002). The magistrate judge’s conclusion, as adopted in

full by the district court, that delays in Allen’s treatment were “beyond Dr.

Cheung’s control” misconstrued Allen’s allegations and improperly assumed at the

pleading stage that Dr. Cheung’s assertions about why he failed to treat Allen were

true. See Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011).




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         The district court also erred in dismissing with prejudice the claims from

Allen’s complaint that are unrelated to his claim for inadequate medical care

against Dr. Cheung. Federal Rule of Civil Procedure 21 expressly prohibits a

district court from dismissing a plaintiff’s claims for the sole reason that the

plaintiff erroneously joined those claims in a single action against different

defendants. See Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913

(9th Cir. 1964). The district court here violated that rule by dismissing Allen’s

remaining claims with prejudice simply because they were unrelated to his

inadequate dental care claim and alleged against different defendants. On remand,

the district court should instead remedy Allen’s misjoinder by severing any claims

or defendants unrelated to Allen’s inadequate dental care claim. See Fed. R. Civ.

P. 21.

         REVERSED and REMANDED.




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