Michael C. Tierney v. Unknown Dentist;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL C. TIERNEY,
Plaintiff - Appellant,
v.
UNKNOWN DENTIST; et al.,
Defendants - Appellees.
No. 11-16643
D.C. No. 1:11-cv-00369-JMS-
KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted February 17, 2015
Honolulu Hawaii
Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.
Michael C. Tierney appeals the district court’s order denying him in forma
pauperis status and dismissing his complaint for failure to pay the filing fee.
Tierney’s 42 U.S.C. § 1983 action primarily alleged that prison officials withheld
dental treatment in violation of the Eighth and Fourteenth Amendments.
FILED
MAR 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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In its dismissal order, the district court held that Tierney (who has had at
least three prior cases dismissed on the grounds that they were frivolous,
malicious, or failed to state a claim upon which relief may be granted) failed to
demonstrate he was “under imminent danger of serious physical injury,” 28 U.S.C.
§ 1915(g), which is a necessary prerequisite to proceeding in forma pauperis. We
review “[t]he district court’s interpretation and application of § 1915(g)” de novo.
Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005).
In his pro se complaint, which we are bound to construe liberally, see Silva
v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011), Tierney alleged extreme and
continuing pain, inability to sleep, and infection of his gums. Tierney’s allegations
were sufficient to demonstrate that he was under imminent danger of serious
physical injury, and the district court erred in suggesting that Tierney’s rejection of
the prison’s offer of tooth extraction precluded him from alleging imminent harm.
See Andrews v. Cervantes, 493 F.3d 1047, 1055-57 (9th Cir. 2007). Accordingly,
the district court erred in denying Tierney in forma pauperis status and dismissing
his complaint for failure to pay the filing fee.
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The district court also held that Tierney failed to state a claim upon which
relief could be granted.1 We agree that, as presently alleged, Tierney’s complaint
does not state a claim for relief under § 1983. Tierney’s complaint fails to state an
Eighth Amendment claim because he has not alleged that the offered extraction
was medically unacceptable under the circumstances. See Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996). His denial of access to courts claim also fails
because he has not identified any harm caused by the refusal to identify the dentist.
See Christopher v. Harbury, 536 U.S. 403, 415 (2002). Finally, Tierney has not
stated a claim under the Equal Protection Clause because he has not identified a
protected class of which he is a member. However, the district court failed to find
that the complaint “could not be cured by the allegation of other facts,” warranting
remand for further consideration of Tierney’s § 1983 claims. See Lopez v. Smith,
203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Because it is not “absolutely clear
that the deficiencies of the complaint could not be cured by amendment,” Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995), we vacate the district court’s
1The district court dismissed the complaint “without prejudice to Plaintiff
filing a complaint in a new case accompanied by the full . . . filing fee.” The
court’s order also stated that Tierney’s § 1983 claims were dismissed for failure to
state a claim, thus suggesting that the case was dismissed with prejudice as to the
merits. Therefore, when reviewing the order, the district court’s intentions are not
clear.
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dismissal order in its entirety, reinstate Tierney’s complaint without prejudice to
the opportunity to amend, and remand to the district court for further proceedings.
The parties are to bear their own costs on appeal.
VACATED AND REMANDED.
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