Steven Wilhelm v. Aron Rotman, et al

Filing

FILED OPINION (MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN and SUSAN P. GRABER) AFFIRMED in part, REVERSED and REMANDED in part. Judge: SPG Authoring. FILED AND ENTERED JUDGMENT. [8191367]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN HAIRL WILHELM,
Plaintiff-Appellant,
v.
DR. ARON ROTMAN; DR. CALVIN
SCHUSTER, and DR. JEAN PIERRE,
Defendants-Appellees.





No. 11-16335
D.C. No.
1:10-cv-00001-GBC
OPINION

Appeal from the United States District Court
for the Eastern District of California
Gerald B. Cohn, Magistrate Judge, Presiding
Argued and Submitted
April 17, 2012—San Francisco, California
Filed May 25, 2012
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber

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COUNSEL
Ivana Cingel, O’Melveny & Myers LLP, Los Angeles, California, for the plaintiff-appellant.
Vickie P. Whitney, Supervising Deputy Attorney General,
Sacramento, California, for amicus curiae Attorney General
of California on behalf of the defendants-appellees.

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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.
1

Plaintiff’s Medical History1

Because the district court dismissed Plaintiff’s complaint without
requiring any defendant to file an answer, the stated facts come from his
complaint and its supporting documentation. For the purpose of reviewing
a dismissal, we accept those facts as true. See generally Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “When a plaintiff has attached various exhibits
to the complaint, those exhibits may be considered in determining whether
dismissal was proper without converting the motion to one for summary
judgment.” Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995).

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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

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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

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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:
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,
2

That statute provides, in relevant part:
(a) Screening.—The court shall review, before docketing, if

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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).
feasible or, in any event, as soon as practicable after docketing,
a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
3

Because the complaint was dismissed at the screening stage, Defendants were not served and made no appearance. Accordingly, no Defendants appear in this appeal, and no answering brief was filed. But this
court granted Plaintiff’s motion for appointment of counsel and directed
the California Attorney General to appear and participate in the case. The
California Attorney General complied with that order by filing an amicus
curiae brief, limited to the jurisdictional issue.

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DISCUSSION
A.

Jurisdiction

[1] “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 (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,’ without 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 (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.
[2] 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 courtprovided 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

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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 in the form’s introduction (but not
referred to in the text associated with the “consent” option).
That reading is incorrect because it ignores the distinction
between the two options and because the listing of Magistrate
Judge Austin was merely informational; indeed, § 636(c)(2),
which provides the procedure for obtaining consent, does not
require that the form list the name of the judge. The extra
information does not render the consent ambiguous.
Plaintiff can identify only one real defect in the consent
form—that the form came from the magistrate judge himself
rather than from the clerk, as required by § 636(c)(2) and Federal Rule of Civil Procedure 73(b)(1).5 Under Roell, such a
procedural defect, especially one so minor, does not eliminate
jurisdiction if voluntary consent is present.
4

The written consent in this case contrasts with the written consent in
cases in which courts have limited consent to a particular magistrate judge.
See Kalan v. City of St. Francis, 274 F.3d 1150, 1151-52 (7th Cir. 2001)
(per curiam) (involving written consent that “specified [a particular magistrate judge] by name (as opposed to stating that the parties consented to
proceed before ‘a’ magistrate judge)”); Mendes Jr. Int’l Co. v. M/V Sokai
Maru, 978 F.2d 920, 921 (5th Cir. 1992) (involving document granting
“ ‘consent to have [a named magistrate judge] conduct any and all further
proceedings in the case, including . . . order the entry of judgment’ ”
(ellipsis in original)).
5
Plaintiff also argues that the form was defective for failing to advise
him that he was “free to withhold consent without adverse substantive
consequences.” 28 U.S.C. § 636(c)(2); Fed. R. Civ. P. 73(b)(2). But that
requirement does not apply to the first communication asking a party to
state a preference regarding magistrate judge jurisdiction; it applies only
to repeated communications regarding consent. See 28 U.S.C. § 636(c)(2)
(“Thereafter, either the district court judge or the magistrate judge may
again advise the parties of the availability of the magistrate judge, but in
so doing, shall also advise the parties that they are free to withhold consent
without adverse substantive consequences.” (emphasis added)); Fed. R.
Civ. P. 73(b)(2) (titled, “Reminding the Parties About Consenting”).

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[3] Even if Plaintiff’s consent were not clear from the consent form itself, in the alternative he impliedly consented to
the jurisdiction of Magistrate Judge Cohn. As Roell held, a
court may infer consent where “the litigant or counsel was
made aware of the need for consent and the right to refuse it,
and still voluntarily appeared to try the case before the Magistrate Judge.” 538 U.S. at 590. Here, the initial form advised
Plaintiff of the need for consent and his right to refuse it. At
a minimum, he agreed to have Magistrate Judge Austin hear
his case. But then he presented his case to Magistrate Judge
Cohn without objection, voluntarily amending his complaint
after seeking an extension of time to do so. Those facts are
sufficient to meet the Roell standard for implied consent.6 To
the extent that we have previously held that we can never
infer consent, we have been overruled by the Supreme Court
in Roell. See, e.g., Nasca v. Peoplesoft (In re Nasca), 160
F.3d 578, 579 (9th Cir. 1999) (“’We will not permit our jurisdiction to depend on inferences when both the statute and
common sense call for precision.’ ” (quoting Alaniz v. Cal.
Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982) (per
curiam))); see also Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc) (explaining that a three-judge panel may
recognize that a precedent of this court has been “effectively
overruled” by a later Supreme Court case).
6

The facts of this case differ from the facts in cases where courts have
declined to infer consent under Roell. See Anderson, 351 F.3d at 915;
Phillips v. Beierwaltes, 466 F.3d 1217, 1221 (10th Cir. 2006). In Anderson, the only notice relating to consent failed to alert the parties of the
need to consent, of their right to decline, or of their right to a district
judge. See 351 F.3d at 912, 916. Furthermore, the parties’ appearances in
Anderson are distinguishable from Plaintiff’s actions here. In Anderson,
the objecting parties appeared before a magistrate judge but repeatedly and
“unequivocally refused to submit [their motions] to the magistrate judge’s
jurisdiction.” Id. at 916; see id. at 913. As noted, Plaintiff failed to object
at any time. Similarly, in Phillips, the Tenth Circuit refused to infer consent under Roell because there was “no notification . . . of the need to consent or the right to refuse consent.” 466 F.3d at 1221.

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In substantially similar circumstances, the Seventh Circuit
reached the same conclusion. See Stevo v. Frasor, 662 F.3d
880, 882 (7th Cir. 2011) (involving reassignment from a first
magistrate judge to a second). The Seventh Circuit requires
consent to § 636(c) jurisdiction to be “on the record, clear,
and unambiguous.” Id. at 883. Under that rule, the Seventh
Circuit found such consent with respect to a second magistrate judge by relying, in part, on the objecting party’s having
“expressly consented in writing” to a first magistrate judge.
Id. at 884. The court saw some ambiguity as to whether the
consent applied to “ ‘a’ magistrate judge generally [or] ‘the’
magistrate judge specifically,” but found that ambiguity insignificant because the objecting party had “impliedly consented
to the reassignment to [the second magistrate judge] by proceeding . . . through discovery and summary judgment without objection.” Id. (citing Roell, 538 U.S. at 590-91).7
In the wake of Roell, the Sixth and Eleventh Circuits also
have revised their previously strict consent rules. See HoltOrsted v. City of Dickson, 641 F.3d 230, 233-35 & n.3 (6th
Cir. 2011) (recognizing that circuit’s rule requiring a “clear
and unambiguous statement in the record indicating that the
parties consented to the exercise of plenary jurisdiction by the
Magistrate,” but finding implied consent under Roell (internal
quotation marks omitted)); Chambless v. La.-Pac. Corp., 481
F.3d 1345, 1350 (11th Cir. 2007) (“Although we have
required that consent to a magistrate judge’s jurisdiction be
express and on the record, the Supreme Court held in [Roell]
that consent to a magistrate judge’s jurisdiction can be
inferred from a party’s conduct during litigation.” (internal
quotation marks and citations omitted)).
7

The Seventh Circuit also noted that the original consent form contained
the following notice: “Should this case be reassigned to a magistrate judge
other than the magistrate judge designated . . . , the undersigned may
object within 30 days of such reassignment.” Stevo, 662 F.3d at 885 (internal quotation marks omitted). We do not read the result in Stevo to depend
on that kind of notice, which was not given here.

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The Fifth Circuit had a long-standing pre-Roell rule that
“ ‘[c]onsent to trial by a magistrate under section 636(c) cannot be implied.’ ” Mendes Jr. Int’l Co. v. M/V Sokai Maru,
978 F.2d 920, 924 (5th Cir. 1992) (quoting EEOC v. W. La.
Health Servs., Inc., 959 F.2d 1277, 1281 (5th Cir. 1992)); see
also Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.
1984) (per curiam) (“We have held before that such consent
must be explicit, and will not be casually inferred from the
conduct of the parties.” (citing Glover v. Ala. Bd. of Corr.,
660 F.2d 120 (5th Cir. 1981))). Although the Fifth Circuit has
not squarely addressed Roell’s effect on its implied consent
rule in a published opinion, we do not think that its pre-Roell
rule survives because Roell itself reversed a Fifth Circuit case
in which that court had “reaffirmed its prior holding that
Ԥ 636(c) consent must be express; it cannot be implied by the
parties’ conduct.’ ” 538 U.S. at 585 (quoting Withrow v.
Roell, 288 F.3d 199, 201 (5th Cir. 2002) (citing W. La. Health
Servs., 959 F.2d at 1281; Trufant, 729 F.2d at 309)). The Fifth
Circuit seems to have recognized as much in unpublished
decisions. See, e.g., Marquez v. Woody, 440 F. App’x 318,
321 n.4 (5th Cir. 2011) (per curiam) (although “Woody did
not explicitly consent to proceed before a magistrate judge,”
“the Supreme Court has held that ‘consent can be inferred’ ”
and, “[i]n this case, Woody’s conduct indicates that she consented to proceed before a magistrate judge” (quoting Roell,
538 U.S. at 582)); Bejaran v. Cruz, 79 F. App’x 73, 73 (5th
Cir. 2003) (per curiam) (“Although the record does not contain written consent by the defendants to proceed before the
magistrate judge as required by 28 U.S.C. § 636(c), we may
infer their consent from the record as a whole.” (citing Roell,
538 U.S. at 586-91)).
[4] Accordingly, we hold that Plaintiff consented to have
Magistrate Judge Cohn decide his case.
B.

Dismissal of Plaintiff’s Complaint

Failure to state a claim under § 1915A incorporates the
familiar standard applied in the context of failure to state a

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claim under Federal Rule of Civil Procedure 12(b)(6). See
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (citing
Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1998), which
involved Rule 12(b)(6) dismissal); see also Weiss v. Cooley,
230 F.3d 1027, 1029 (7th Cir. 2000) (“This standard, derived
from Rule 12(b)(6), also applies to the dismissal of claims
under § 1915A.”). The Rule 12(b)(6) standard requires a complaint to “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) (internal quotation marks
omitted).
Plaintiff filed his complaint pro se. “We construe pro se
complaints liberally and may only dismiss a pro se complaint
for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Silva v. Di Vittorio, 658
F.3d 1090, 1101 (9th Cir. 2011) (internal quotation marks
omitted). Iqbal did not alter the rule that, “where the petitioner is pro se, particularly in civil rights cases, [courts
should] construe the pleadings liberally and . . . afford the
petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010) (internal quotation marks omitted).
[5] Plaintiff’s § 1983 claim alleges a violation of the
Eighth Amendment arising from allegedly deficient medical
treatment, on a theory of deliberate indifference to serious
medical needs. Our test for deliberate indifference to medical
need is two-pronged:
First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s
condition could result in further significant injury or
the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendant’s
response to the need was deliberately indifferent.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal
quotation marks and citation omitted).

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[6] Plaintiff’s hernia was a serious medical need. See Jones
v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (“[The plaintiff’s] complaint . . . states a serious medical need. He alleges
suffering and pain from his herniated condition and the inability to perform his work at the prison.”); see also McGuckin v.
Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (“The existence of an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and
substantial pain are examples of indications that a prisoner
has a ‘serious’ need for medical treatment.”), overruled on
other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133
(9th Cir. 1997) (en banc).
[7] The second prong requires showing:
(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm
caused by the indifference.
Jett, 439 F.3d at 1096. More generally, deliberate indifference
“may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by
the way in which prison physicians provide medical care.” Id.
(internal quotation marks omitted). Under Jett, “[a] prisoner
need not show his harm was substantial.” Id.; see also
McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant’s activities resulted in ‘substantial’ harm to the prisoner
is not necessary.”).
[8] The deliberate indifference doctrine is limited in scope.
“[A]n inadvertent failure to provide adequate medical care”
does not, by itself, state a deliberate indifference claim for
§ 1983 purposes. McGuckin, 974 F.2d at 1060 (internal quotation marks omitted); see also Estelle v. Gamble, 429 U.S. 97,
106 (1976) (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not

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state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”
(emphasis added)). Thus, “a plaintiff’s showing of nothing
more than a difference of medical opinion as to the need to
pursue one course of treatment over another [is] insufficient,
as a matter of law, to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal
quotation marks omitted).
In Jett, we applied our definition of deliberate indifference
to reverse a summary judgment rejecting a § 1983 claim.
There, the prison doctor recognized the plaintiff’s need to see
a specialist (in that case, an orthopedist), as evidenced by the
prison doctor’s own referral, but the plaintiff was not taken to
see the specialist for at least six months. Jett, 439 F.3d at
1097-98. We concluded that a trier of fact could find that the
doctor was aware of the plaintiff’s need for treatment and that
the doctor’s “failure to see [the plaintiff] to ensure [administration of the prescribed treatment] was deliberate indifference to a serious medical condition.” Id. at 1097.8
[9] Plaintiff’s complaint alleges facts that are materially
similar to those in Jett, at least as to Dr. Rotman. Dr. Rotman
repeatedly diagnosed Plaintiff as suffering from a hernia, and
he repeatedly concluded that referral to surgery was neces8
McGuckin similarly suggests that unnecessary delay in administration
of prescribed treatment can amount to deliberate indifference. There, we
observed that a delay in treating the plaintiff’s condition forced him “to
endure over seven months of unnecessary pain” and no explanation was
available for a failure to provide the plaintiff with a “CT scan and surgery
. . . promptly after his need for those services was unambiguously diagnosed.” McGuckin, 974 F.2d at 1062. We affirmed summary judgment in
favor of the defendants who had prescribed and knew of the need for those
services, but only because the plaintiff had failed to show that those defendants had caused the delay. Id. at 1062-63. Here, by contrast, Plaintiff
alleges that Dr. Rotman caused the delay, and Plaintiff’s supporting documentation establishes the plausibility of that allegation.

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sary. But Plaintiff failed to receive the prescribed treatment
for more than a year, and Plaintiff’s complaint and exhibits,
taken as true, demonstrate that the delay was attributable to
Dr. Rotman’s failure to request the referral properly and,
more troublingly, his inexplicable cancellation of a second
referral request. Those actions and omissions do not represent
a mere failure to diagnose or prescribe treatment, and they are
not explained by a difference of medical opinion. Dr. Rotman
exercised his own medical judgment in diagnosing a hernia
and prescribing surgery. Plaintiff’s complaint does not allege
any failure in those actions; rather, it alleges a deliberate
indifference in implementing the prescribed treatment.
Accordingly, Plaintiff’s allegations against Dr. Rotman are
sufficient to meet the low threshold for proceeding past the
screening stage.
[10] By contrast, the allegations against Dr. Schuster are
directed at a misdiagnosis. Plaintiff alleges that he had a hernia and that Dr. Schuster should have operated on it. But Dr.
Schuster decided not to operate because he thought that Plaintiff was not suffering from a hernia. Thus, Dr. Schuster’s
alleged failure was negligent misdiagnosis, or a disagreement
with Dr. Rotman. Therefore, the allegations are insufficient to
establish deliberate indifference by Dr. Schuster.
[11] In summary, we reverse the dismissal as to Dr. Rotman and affirm the dismissal as to Dr. Schuster. On remand,
the district court shall order service of the complaint on Dr.
Rotman.
AFFIRMED in part, REVERSED and REMANDED in
part.