(PC) Tolbert v. Michael, 1:19-cv-00278-BAM

Plaintiff Edward Shelby Tolbert, a state prisoner proceeding pro se under 42 U.S.C. § 1983, filed a third amended complaint alleging deliberate indifference in medical care.
Defendant Dr. Michael performed plaintiff’s hernia surgery on April 22, 2016, using a Bard Ventralex hernia patch that plaintiff alleges had been banned/recalled since 2009.
Approximately five months post-surgery the hernia recurred with increased bulging and pain, which persisted and possibly worsened over roughly two years.
Plaintiff alleges Dr. Michael knew the mesh was banned when he implanted it; plaintiff learned of the ban/recall from family and media reports.
Defendant nurse practitioner Manasrah examined plaintiff, provided medications, abdominal support, and repeatedly recommended specialist referral within 90 days, but plaintiff did not see a specialist for about two years.
Magistrate judge recommended dismissal for failure to state a claim; on de novo review the district court: (1) declined to dismiss the claim against Dr. Michael, finding plaintiff’s allegations plausible; and (2) adopted the recommendation to dismiss the claim against Manasrah without prejudice for failure to plead deliberate indifference.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Michael acted with deliberate indifference by implanting an allegedly banned/defective hernia mesh	Michael implanted a Bard Ventralex patch known to be banned/recalled, causing recurring pain and migration	Use of a "banned" mesh is speculative; allegations insufficient to state deliberate indifference at screening	Court allowed deliberate indifference claim against Michael to proceed (allegations deemed plausibly sufficient at screening)
Whether NP Manasrah was deliberately indifferent by delaying specialist referral and care for ~2 years	Manasrah recommended specialist referral within 90 days but failed or refused to arrange it, causing delay and harm	Manasrah provided care (exam, meds, support) and lacked authority to schedule specialist; recommendations are not the same as deliberate indifference	Court dismissed Manasrah without prejudice for failure to state a claim (no plausible showing of medically unacceptable treatment or conscious disregard)

McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992) (discussing deliberate indifference and noting lack of scheduling authority can negate liability)
WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (overruled McGuckin on other grounds)