United States District Court, E.D. California
DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO
AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR
William Burress is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to
the jurisdiction of the United States Magistrate Judge on May
5, 2016. Local Rule 302.
pending before the Court is Plaintiff's first amended
complaint, filed August 3, 2016.
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 “fails to state a claim on
which relief may be granted, ” or that “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and to survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged. Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient, and “facts
that are 'merely consistent with' a defendant's
liability” falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572
F.3d at 969.
is in excessive pain as a result of keloids, a medical
condition described as excessive growth of tissue to both of
Plaintiff's ears. Plaintiff had surgery to remove the
keloid's growth from both his ears. Dr. Hill,
Plaintiff's primary care provided (PCP) admits the
keloids grew back due to medical staff's failure to
provide proper “medical follow-up treatment.”
Despite the fact that such keloid regrowth should not have
occurred, Plaintiff had to begin the whole medical procedure
process again starting with a “7362”
medical-health care form request, consultation with a nurse.
Plaintiff was re-examined by Dr. Hill in May of 2015. Dr.
Hill ordered Plaintiff to be seen by an outside specialist to
either concur as to a second surgery or an alternative course
outside specialist concluded that surgery with the proper
follow-up treatment would be the best course of treatment, to
and including the likelihood that keloid tissue would not
grow back. The California Department of Corrections and
Rehabilitation (CDCR) requires that surgery recommendations
go before the medical authorization review (MAR) process to
validate the need for surgery and/or other treatment.
9, 2015, the MAR committee denied the surgery procedure. The
MAR committee indicated that they felt the surgery procedure
would be “cosmetic” or that a second set of
surgery would be futile and not correct the problem.
Plaintiff again consulted with Dr. Hill who advised Plaintiff
of his right to appeal the MAR committee decision. In the
first level response, Plaintiff was informed that there was
“not a medical indication” for renewal of surgery
and his appeal was denied. Plaintiff's appeal was denied
at the second level of review, stating “should your
treatment regimen be modified to include surgery it will be
done at the discretion of your provider.” Lastly,
Plaintiff's appeal was denied at the Director's level
of review stating, “your own personal preferences may
be considered, but do not control the professional judgment
of your current medical care providers.”
keloids and regrowth in both ears makes it next to impossible
not to be in pain when he sleeps. CDCR fails to address the
negligence associated with the botched medical follow-up nor
remedy the incredible pain that Plaintiff lives with,
something the ...