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Newberry v. State

United States District Court, D. Montana, Helena Division

December 6, 2019

JASON NEWBERRY, Plaintiff,
v.
STATE OF MONTANA, DR. REESE, DR. HURST, MELISSA SCHARF, and CONNIE WINNER, Defendants.

          ORDER

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jason Newberry has filed a Complaint (Doc. 2) pursuant to 42 U.S.C. § 1983 alleging medical neglect while he has been incarcerated at Montana State Prison. Having reviewed and screened the Complaint under 28 U.S.C. § 1915A, the Court declines to serve the Complaint but will provide Mr. Newberry leave to file an amended pleading by January 6, 2020 to cure the deficiencies identified herein.

         I. STATEMENT OF THE CASE

         A. Parties

         Mr. Newberry is currently incarcerated at Montana State Prison. He names the State of Montana, Dr. Reese, Dr. Hurst, Melissa Scharf, and Connie Winner as Defendants.

         B. Factual Allegations

         Mr. Newberry provides few factual allegations to support his claims of medical neglect. He alleges Dr. Reese, a doctor at MSP, changed “eqhural” [sic] medications without his consent and failed to follow a neuro surgeon's recommendations. He contends Dr. Hurst, another doctor at MSP, misdiagnosed his elbow injury caused by curling weights at the prison. He claims it took 23 weeks to get an x-ray which showed a broken bone and nothing has been done to treat the broken bone. He claims he reported a PREA incident against Dr. Hurst and Bill Weddington did nothing at all. He claims Connie Winners failed to follow doctor's orders. He makes no specific allegations against Melissa Scharf, the infirmary manager. He also claims that he suffered a back injury when he slipped on steps due to handrails not be up to code. He alleges the injury caused him to have to get spinal epidural shots and he is in a lot of pain most of the time. (Complaint, Doc. 1 at 6-7.)

         II. SCREENING STANDARD

         Mr. Newberry has paid the filing fee for this matter but because he is a prisoner suing a governmental defendant the Court must review his Complaint under 28 U.S.C. § 1915A. Section 1915A(b) requires the Court to dismiss a complaint filed by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).

         Rule 8 of the Federal Rules of Civil Procedure provides that a complaint “that states a claim for relief must contain . . . a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). That is, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A complaint's allegations must cross “the line from conceivable to plausible.” Iqbal, 556 U.S. at 680.

         There is a two-step procedure to determine whether a complaint's allegations cross that line. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must identify “the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 680. Factual allegations are not entitled to the assumption of truth if they are “merely consistent with liability, ” or “amount to nothing more than a ‘formulaic recitation of the elements' of a constitutional” claim. Id. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant's liability. Id. at 678.

         Second, the Court must determine whether the complaint states a “plausible” claim for relief. Iqbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). If the factual allegations, which are accepted as true, “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]” - “that the pleader is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)). “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”).

         III. SCREENING ANALYSIS

         In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must sufficiently allege that: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy the second step, a plaintiff must allege facts showing how ...


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