Wilhelm v. Rotman, No. 11–16335.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGRABER
Citation12 Cal. Daily Op. Serv. 5739,2012 Daily Journal D.A.R. 6948,680 F.3d 1113
PartiesSteven Hairl WILHELM, Plaintiff–Appellant, v. Dr. Aron ROTMAN; Dr. Calvin Schuster, and Dr. Jean Pierre, Defendants–Appellees.
Docket NumberNo. 11–16335.
Decision Date25 May 2012

680 F.3d 1113
12 Cal.
Daily Op. Serv. 5739
2012 Daily Journal D.A.R. 6948

Steven Hairl WILHELM, Plaintiff–Appellant,
v.
Dr. Aron ROTMAN; Dr. Calvin Schuster, and Dr. Jean Pierre, Defendants–Appellees.

No. 11–16335.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted April 17, 2012.
Filed May 25, 2012.


[680 F.3d 1116]


Ivana Cingel, O'Melveny & Myers LLP, Los Angeles, CA; Samuel Siegal, Law Student, UCLA School of Law, Ninth Circuit Appellate Advocacy Clinic, Los Angeles, CA; Geoffrey H. Yost, Supervising Attorney, O'Melveny & Myers LLP, San Francisco, CA, for the plaintiff-appellant.

Vickie P. Whitney, Supervising Deputy Attorney General, Sacramento, CA, for amicus curiae Attorney General of California on behalf of the 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.
Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, and SUSAN P. GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

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 History1

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

[680 F.3d 1117]

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 26, 2009 appointment, Dr. Rotman responded to Plaintiff's inquiries by advising him to be patient.

On June 25, 2009, Plaintiff filed an appeal with the Health Care Appeals Office of his facility. On July 23, 2009, Plaintiff also sent a letter to a public interest law firm. His appeal was accepted, leading to another visit with Dr. Rotman on August 3, 2009, and another referral to surgery. This time, Plaintiff saw a surgeon on August 19, 2009, and was scheduled for surgery. Plaintiff's brief states that he has since received the surgery.

As a result of his administrative health care appeal and his inquiries to the public interest law firm, Plaintiff discovered that (1) Dr. Rotman's January 27, 2009 referral to surgery had been denied for inadequate documentation, and (2) Dr. Rotman had sent a second referral, on March 26, 2009, but he later cancelled it by reporting that Plaintiff's condition had resolved.

B. District Court Proceedings

Plaintiff filed a § 1983 action at the end of 2009. The court randomly assigned the case to Magistrate Judge Gary S. Austin, and Plaintiff received a form titled “ORDER RE CONSENT OR REQUEST FOR REASSIGNMENT.” That form stated:

This case was randomly assigned to Magistrate Judge Gary S. Austin. Without the written consent of the parties presently appearing pursuant to 28 U.S.C. Sec. 636(c), a magistrate judge cannot conduct all proceedings and enter judgment in this case with direct review by the Ninth Circuit Court of Appeals, in the event an appeal is filed. If a party declines to consent and the case is assigned to a district judge, the assigned magistrate judge shall continue to perform all duties as required by Eastern District Local Rule 302.

Accordingly, within 30 days, the parties shall complete and return this form to the court.

The bottom of the form contained two boxes, along with instructions to check and sign in only one of the boxes. The first box was titled CONSENT TO JURISDICTION OF UNITED STATES MAGISTRATE JUDGE.” That box contained text reading:


[680 F.3d 1118]

The undersigned hereby voluntarily consents to have a United States Magistrate Judge conduct all further proceedings in this case.

The second box was titled, DECLINE OF JURISDICTION OF UNITED STATES MAGISTRATE JUDGE AND REQUEST FOR REASSIGNMENT TO UNITED STATES DISTRICT JUDGE.” That box contained text reading:

The undersigned declines to consent to the United States Magistrate Judge assigned to this case and requests random assignment to a United States District Judge.

Plaintiff returned the form to the court after completing the first box—the one granting consent. Later, the Chief Judge for the Eastern District of California issued an order reassigning the case to visiting Magistrate Judge Gerald B. Cohn for all further proceedings.

Magistrate Judge Cohn screened the complaint under 28 U.S.C. § 1915A2 and dismissed it for failure to state a claim, with leave to amend. Plaintiff filed an amended complaint. Magistrate Judge Cohn screened the amended complaint and again dismissed for failure to state a claim, this time without leave to amend. Plaintiff timely appeals.3

STANDARD OF REVIEW

“We review de novo whether a magistrate judge has jurisdiction.” Anderson v. WoodCreek Venture Ltd., 351 F.3d 911, 915 (9th Cir.2003). We also “review de novo a district court's dismissal of a prisoner complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted.” Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir.2011).

DISCUSSION
A. Jurisdiction

“The Federal Magistrate Act provides that ‘[u]pon the consent of the parties, a full-time United States magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court.’ ” Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003) (alterations in original) (quoting 28 U.S.C. § 636(c)(1)). “So far as it concerns full-time magistrate judges, ... § 636(c)(1)[ ] speaks only of ‘the consent of the parties,’ with-out qualification as to form, and § 636(c)(3) similarly provides that ‘[t]he consent of the parties allows' a full-time magistrate judge to enter a final, appealable judgment of the district court.” Id. at 587, 123 S.Ct. 1696

[680 F.3d 1119]

(emphasis added) (footnote omitted) (second alteration in original). Although § 636(c)(2) and Federal Rule of Civil Procedure 73(b) provide “specific referral procedures” for magistrate judges, “a defect in the referral to a full-time magistrate judge under § 636(c)(2) does not eliminate that magistrate judge's ‘civil jurisdiction’ under § 636(c)(1) so long as the parties have in fact voluntarily consented.” Id.

Consent, then, is the “the touchstone of magistrate judge jurisdiction.” Anderson, 351 F.3d at 914. We are satisfied that Plaintiff voluntarily consented to the exercise of jurisdiction by Magistrate Judge Cohn. Plaintiff unambiguously consented to the jurisdiction of “ a United States Magistrate Judge” by selecting the “consent” box on the court-provided form. (Emphasis added.) That same form provided an alternative to decline jurisdiction of the particular magistrate judge named on that form (Magistrate Judge Austin). The difference in wording between the “consent” option—covering “a” magistrate judge generally—and the “decline” option—which specifies the randomly assigned judge—supports reading the completed form as expressing consent to jurisdiction by any magistrate judge (as opposed to an Article III judge).4 Plaintiff asserts that his consent was limited to the particular judge named...

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3957 practice notes
  • Mendez v. United States, 1:17-cv-00555-LJO-MJS (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2018
    ...and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by "(a) a purposeful act or......
  • Demonte v. Griffith, Case No. 1:16-cv-00116-LJO-SKO (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 19, 2016
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091,Page 6 1096 (9th Cir. 2006) (quotation marks omitted)). "Indications that a plaintiff ha......
  • Alarcon v. Davey, Case No. 1:16-cv-01461-JLT (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 9, 2017
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)). "Indications that a plaintiff has a se......
  • Mwasi v. Corcoran State Prison, Case: 1:13-cv-00695-DAD-JLT (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 20, 2016
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)). The existence of a condition or injury......
  • Request a trial to view additional results
3913 cases
  • Mendez v. United States, 1:17-cv-00555-LJO-MJS (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2018
    ...and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by "(a) a purposeful act or......
  • Demonte v. Griffith, Case No. 1:16-cv-00116-LJO-SKO (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 19, 2016
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091,Page 6 1096 (9th Cir. 2006) (quotation marks omitted)). "Indications that a plaintiff ha......
  • Alarcon v. Davey, Case No. 1:16-cv-01461-JLT (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 9, 2017
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)). "Indications that a plaintiff has a se......
  • Mwasi v. Corcoran State Prison, Case: 1:13-cv-00695-DAD-JLT (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 20, 2016
    ...of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)). The existence of a condition or injury......
  • Request a trial to view additional results
1 books & journal articles
  • Part two: case summaries by major topic.
    • United States
    • Detention and Corrections Caselaw Quarterly Nbr. 58, January 2014
    • January 1, 2014
    ...immunity." (Houston County Detention Center, Georgia) U.S. Appeals Court DELAY IN TREATMENT DELIBERATE INDIFFERENCE Wilhelm v. Roiman, 680 F.3d 1113 (9th Cir. 2012). A state inmate brought a pro se [section] 1983 action, alleging that a delay by prison medical providers in treating his hern......

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