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Steve Wilhelm v. Aron Rotman

May 10, 2011

STEVE WILHELM,
PLAINTIFF,
v.
ARON ROTMAN, ET AL.,
DEFENDANTS.



ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM CLERK TO CLOSE CASE ORDER (ECF No. 12)

I. PROCEDURAL HISTORY

Plaintiff Steve Wilhelm is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 31, 2009 and consented to Magistrate Judge jurisdiction on February 3, 2010. (ECF Nos. 1 & 7.) Plaintiff's original complaint was dismissed with leave to amend. (ECF No. 9.) On March 15, 2011, Plaintiff filed his First Amended Complaint. (ECF No. 12.) No other parties have appeared. It is this First Amended Complaint that is now before the Court for screening.

For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint fails to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF COMPLAINT

Plaintiff alleges that Defendants did not provide adequate health care in violation of his Eighth Amendment. Plaintiff names the following individuals as Defendants: Dr. Aron Rotman, Dr. Calvin Schuster, and Doctor Assistant Jean Pierre.

Plaintiff alleges as follows: On July 15, 2008, Plaintiff was examined by Defendant Rotman, who diagnosed Plaintiff with a double hernia. Plaintiff was scheduled to see a surgeon. On September 5, 2008, Plaintiff was given a very short examine by the surgeon, Defendant Schuster, who told Plaintiff that he did not have a hernia and that an operation was not necessary.

Plaintiff submitted a medical request to see Rotman on September 8, 2008, but Plaintiff was not called in for the appointment. On October 12, 2008, Plaintiff sent Rotman a letter explaining that he needed to be seen regarding his hernia. Plaintiff was scheduled for appointments on October 21 and 26, 2008, but was not called in for either appointment.

Plaintiff finally saw Rotman on November 11, 2008 and asked for testing to determine if he had a hernia. Rotman told him they would discuss the hernia at Plaintiff's next appointment. Plaintiff was scheduled to see Rotman on December 4, 2008, but was not called in for the appointment. Plaintiff sent another letter to Rotman on December 7, 2008 and did not receive a response. On December 11, 2008, Plaintiff submitted a medical request to see Rotman. Plaintiff was scheduled to see a nurse on December 19, 2008, but was not called in for the appointment. Plaintiff saw Rotman on December 24, 2008 and he said Plaintiff would be examined for a hernia at his next appointment. On January 27, 2009, Plaintiff saw Rotman who told him he would place him on the list to see a surgeon. On March 26, 2009, Plaintiff saw Rotman and asked why he had not been to the surgeon yet. Rotman told him to be patient.

On July 17, 2009, Plaintiff had an interview for a 602 appeal he had filed about his hernia and the length of time it was taking to see a surgeon. During the interview, he was told by the interviewer that he had been taken off the surgeon list because Rotman failed to file the correct papers.

Plaintiff was eventually scheduled for surgery. Before that could occur, on August 26, 2009, Plaintiff was told he was going to be transferred. Plaintiff then asked Defendant Pierre to place a medical hold on ...


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