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Steven Hairl Wilhelm v. Dr. Aron Rotman

May 25, 2012

STEVEN HAIRL WILHELM, PLAINTIFF-APPELLANT,
v.
DR. ARON ROTMAN; DR. CALVIN SCHUSTER, AND DR. JEAN PIERRE,
DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Gerald B. Cohn, Magistrate Judge, Presiding D.C. No. 1:10-cv-00001-GBC

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 17, 2012-San Francisco, California

Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

OPINION

Plaintiff Steven Hairl Wilhelm filed a pro se complaint, under 42 U.S.C. § 1983, against certain prison medical providers-Dr. Aron Rotman and Dr. Calvin Schuster. Plaintiff alleged that the providers' delay in treating his hernia amounted to deliberate indifference to his medical needs, in violation of the Eighth Amendment. At the screening stage, a magistrate judge dismissed the case for failure to state a claim, pursuant to 28 U.S.C. § 1915A. Plaintiff appeals, arguing that his complaint properly stated a claim for relief. Plaintiff also contests the magistrate judge's jurisdiction to dismiss his complaint with prejudice, arguing that he did not consent to jurisdiction by that particular magistrate judge.

We hold that (1) Plaintiff voluntarily consented to the jurisdiction of any magistrate judge, including the one who decided his case; (2) the allegations against Dr. Schuster cannot support a deliberate indifference claim because they amount to a claim of negligence; and (3) the allegations against Dr. Rotman are sufficient to warrant ordering him to file an answer. Accordingly, we affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL HISTORY

A. Plaintiff's Medical History*fn1

Plaintiff was diagnosed with a hernia on October 7, 2005. Over the next three years, until he saw Dr. Rotman, Plaintiff's doctors took no action on that diagnosis. On July 15, 2008, Dr. Rotman confirmed the diagnosis-a double inguinal hernia-and recommended herniorrhaphy surgery. He reiterated that diagnosis and treatment plan following another examination on September 4, 2008.

On September 5, 2008, Dr. Schuster, the prison surgeon, examined Plaintiff. Dr. Schuster noted the three-year-old hernia diagnosis, and he further noted that Plaintiff exhibited a broad bulge on both sides of his groin. Nevertheless, Dr. Schuster diagnosed "no definite hernia." According to Plaintiff, the exam was extremely short in duration-"literally, a two second exam." Though Plaintiff complained of pain, Dr. Schuster provided no treatment plan beyond instructing Plaintiff to return if his pain persisted.

Then, on September 8, 2008, Plaintiff requested another appointment with Dr. Rotman. He received no response. He submitted another request and received a response, but Dr. Rotman did not see him until November 11, 2008. At that appointment, Plaintiff asked for a test, such as an x-ray, MRI, CT, or ultrasound, to confirm the hernia diagnosis. Dr. Rotman refused, stating that those tests would not show a hernia, and he promised to discuss the hernia at Plaintiff's next appointment.

On December 7, 2008, after having received no call for a follow-up, Plaintiff requested another appointment. Again, he received no response and sent another request. Dr. Rotman next saw Plaintiff on December 24, 2008, and again said that he would examine the hernia at Plaintiff's next appointment.

At Plaintiff's next appointment, on January 27, 2009, Dr. Rotman finally reexamined Plaintiff and confirmed the hernia diagnosis, once again recommending surgery. According to Plaintiff, Dr. Rotman also promised to put him on a list to see a surgeon at Bakersfield Hospital. At another appointment on February 4, 2009, Dr. Rotman reiterated his diagnosis and treatment plan. At a March ...


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