Francis William Allison v. Derek Burnette, et al.

Summary

The United States District Court for the District of Arizona dismissed Francis William Allison’s First Amended Complaint under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. The court held that the allegations concerning delayed hernia treatment and injuries during surgery suggested, at most, negligence or medical malpractice rather than deliberate indifference, and dismissed the action without leave to amend. The dismissal may count as a strike under 28 U.S.C. § 1915(g), although the court found that an appeal could be taken in forma pauperis.

Holdings

1. The First Amended Complaint failed to state a § 1983 medical-care claim against Burnette because the allegations suggested, at most, negligence in failing to schedule an outside surgical consultation and did not plausibly establish deliberate indifference.
2. The First Amended Complaint failed to state a § 1983 medical-care claim against Ju because the alleged failure to secure Allison during surgery suggested, at most, negligence or medical malpractice, neither of which constitutes deliberate indifference.
3. Further leave to amend was denied because Allison had already amended after receiving notice of the deficiencies, alleged essentially the same facts, and further amendment would be futile.

Questions Presented

1. Whether the First Amended Complaint plausibly stated an Eighth or Fourteenth Amendment medical-care claim under 42 U.S.C. § 1983 against Burnette based on an alleged delay in arranging hernia surgery.
2. Whether the First Amended Complaint plausibly stated a Fourteenth Amendment medical-care claim under 42 U.S.C. § 1983 against Ju based on injuries allegedly caused during surgery.
3. Whether the court should grant further leave to amend after the plaintiff had already amended once and had previously been notified of deficiencies.

Disposition

dismissed