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Burress v. Sheisha

United States District Court, E.D. California

August 9, 2016

WILLIAM BURRESS, Plaintiff,
v.
S. SHEISHA, et al., Defendants.

          DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF

         Plaintiff 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.

         Now pending before the Court is Plaintiff's first amended complaint, filed August 3, 2016.

         I.

         SCREENING REQUIREMENT

         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 “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).

         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, 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).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff 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 of treatment.

         The 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.

         On June 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.”

         Plaintiff's 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 ...


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