United States District Court, D. Montana, Helena Division
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
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.
STATEMENT OF THE CASE
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.
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.)
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).
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
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.
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
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 ...