Michael Thomas v. Wayne Ulit

• Court: District Court, E.D. California
• Decided: January 14, 2026
• Docket: 1:24-cv-00509
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL THOMAS, Case No.: 1:24-cv-00509-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF’S COMPLAINT FOR 13 v. FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 14 WAYNE ULIT, (Doc. 10) 15 Defendant. ORDER DENYING MOTION TO EXCUSE 16 LATE FILING AS MOOT

17 (Doc. 9)

18 21-DAY DEADLINE

19 Clerk of the Court to Assign District Judge

20 Plaintiff Michael Thomas is a prisoner in federal custody proceeding pro se and in forma 21 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action with 22 the filing of a complaint on April 29, 2024. (Doc. 1). After the Court issued the first screening order 23 granting leave to amend (Doc. 6), Plaintiff filed a first amended complaint (Doc. 10). 24 I. MOTION TO EXCUSE LATE FILING 25 On March 28, 2025, Plaintiff filed a motion to excuse the late filing of his first amended 26 complaint. As the Court has accepted Plaintiff’s first amended complaint as the operative complaint 27 for screening purposes, the Court will deny the motion (Doc. 9) as moot. The Court will proceed 1 II. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, fails 5 to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who 6 is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if it lacks 7 a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. See 8 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 III. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain “a 13 short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. Civ. 14 P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim 15 is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal quotation marks & 16 citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 21 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 22 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. 26 Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 27 rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns 1 citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe I v. Wal- 2 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks & citation omitted). 3 The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable 4 claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. 5 at 678 (internal quotation marks & citation omitted). 6 B. Linkage and Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 9 section 1983, a “plaintiff must allege facts, not simply conclusions, that show that an individual 10 was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 11 1193, 1194 (9th Cir. 1998); see Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable 12 to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through 13 the official's own individual actions, has violated the Constitution”); Leer v. Murphy, 844 F.2d 628, 14 633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on the duties and 15 responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 16 constitutional deprivation”) (citing Rizzo v. Goode, 423 U.S. 362, 370-71, 375-77 (1976)). The 17 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, 18 within the meaning of section 1983, if he does an affirmative act, participates in another’s 19 affirmative acts, or omits to perform an act which he is legal required to do that causes the 20 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) 21 (citation omitted). 22 IV. DISCUSSION 23 Plaintiff’s first amended complaint asserts one cause of action, namely deliberate 24 indifference to serious medical needs under the Eighth Amendment, against Defendant Wayne Ulit, 25 a physician at Kern Valley State Prison (“KVSP”). See (Doc. 10). Plaintiff’s current address is 26 South Dakota State Penitentiary, 1600 North Drive, Sioux Falls, South Dakota. (Doc. 12). At the 27 time of the events asserted in the complaint, Plaintiff was located at KVSP. See (Doc. 10). 1 A. Legal Standards 2 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 3 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 4 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 5 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 6 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 7 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 8 1997) (en banc)). 9 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 10 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition could 11 result in further significant injury or the unnecessary and wanton infliction of pain. Second, the 12 plaintiff must show the defendants’ response to the need was deliberately indifferent.” Wilhelm v. 13 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 (quotation marks 14 omitted)). 15 As to the first prong, indications of a serious medical need “include the existence of an 16 injury that a reasonable doctor or patient would find important and worthy of comment or treatment; 17 the presence of a medical condition that significantly affects an individual’s daily activities; or the 18 existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 19 2014) (citation & internal quotation marks omitted). 20 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 21 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 22 safety.’” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (citation omitted). Deliberate indifference 23 is shown where a prison official “knows that inmates face a substantial risk of serious harm and 24 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. In medical cases, 25 this requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or possible 26 medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 27 439 F.3d at 1096). “A prisoner need not show his harm was substantial; however, such would 1 his needs.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). 2 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 3 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 4 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 5 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official 6 should have been aware of the risk, but was not, then the official has not violated the Eighth 7 Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. Cnty. of Washoe, Nevada, 290 8 F.3d 1175, 1188 (9th Cir. 2002)). 9 To prevail on a deliberate indifference claim, a plaintiff must also show that harm resulted 10 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see Jett, 439 F.3d at 1096; Hallett 11 v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference based on 12 delay in treatment must show delay would cause significant injury). 13 “A difference of opinion between a prisoner-patient and prison medical authorities 14 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 15 (9th Cir. 1981) (internal citations omitted). To prevail, plaintiff “must show that the course of 16 treatment the doctors chose was medically unacceptable under the circumstances … and … that 17 they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. 18 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 19 B. Factual Allegations 20 According to his allegations, Plaintiff was transferred to KVSP on December 18, 2015, and 21 Defendant began working at the facility on January 1, 2016. (Doc. 10 at 12). Plaintiff provides 22 background regarding his prescribed medication history for his herniated lumbar discs. Id. KVSP 23 began giving him Toradol shots to treat his emergency episodes of breakthrough pain, receiving 24 such shots numerous times in 2019. Defendant ordered or authorized “many, if not most, of said 25 Toradol shots.” Id. at 13. 26 On February 27, 2020, Plaintiff had an “episode of breakthrough pain and attendant 27 spasms.” Id. As he was in restraints at the time and could not use his hands to brace himself, he fell 1 Plaintiff still but this “was making it worse.” Plaintiff “kept begging to have his hands freed so that 2 he could better fight the spasms.” Plaintiff felt his “wrists would break from the constant violent 3 jerking against the cuffs.” Custody staff agreed to remove his cuffs if medical staff consented but 4 were repeatedly refused. “After some time, the spasms subsided and [P]laintiff lay still on the floor 5 for about ten minutes … Staff then tried to put [P]laintiff on a gurney, but lying flat was impossible 6 due to the pain.” Plaintiff was able to eventually “kneel backwards on the wheelchair.” Id. 7 Staff pushed him a “few doors down to one of the TTA1 rooms where the Toradol shots 8 were administered.” Defendant entered and said he needed to examine Plaintiff. Plaintiff informed 9 him that if he were moved it would trigger the spasms. Defendant then began “pushing and prodding 10 Plaintiff several times in quick succession, trigger a second episode of spams.” Plaintiff was jerked 11 out of the wheelchair and fell to the floor while involuntarily spasming. Defendant stated that he 12 could not examine Plaintiff if he would not be still, but Defendant “already knew that Plaintiff 13 couldn’t be still, had no control over his spasms, and could only wait for them to subside.” Id. at 14 14. 15 Officers then uncuffed one of Plaintiff’s hands, leading to “immediate and significant” 16 improvement. Plaintiff was still in severe pain but not spasming. After this, however, a third episode 17 occurred. Custody staff eventually freed Plaintiff’s other hand. After five more minutes, Plaintiff 18 was able to stand. Plaintiff informed custody staff that now would be the “perfect time” to examine 19 him, before “the spasms returned.” Defendant returned to the room, did not examine Plaintiff, and 20 offered Plaintiff Tylenol 3. Plaintiff said, “You know that doesn’t work.” Defendant said, “It has 21 codeine.” Plaintiff responded that they had “already been through that and you know that doesn’t 22 work. And even if it did work, it would take forever to kick in. I need relief now, not hours from 23 now. You know I need Toradol.” Id. 24 Defendant refused and instructed Plaintiff to “get on the table for examination.” Plaintiff 25 did so slowly and “struggled into a tolerable position. Defendant began touching Plaintiff’s lower 26 back to see if that [hurt], which it did not.” Upon Defendant reaching to move Plaintiff’s leg, 27 1 The Court presumes Plaintiff uses “TTA” here as an acronym for “Triage and Treatment Area.” See Cal. Code Regs. Tit. 15, § 3999.303(b)(6)(A). 1 Plaintiff informed him that an episode would ensue. Defendant “pushed Plaintiff’s knee over and 2 triggered a fourth episode of spasms.” After it subsided, Defendant offered Plaintiff Tylenol 3, 3 which Plaintiff refused. Plaintiff said, “I want Toradol, like always. I need the shot, Ulit.” Id. 4 Defendant told custody staff to return Plaintiff to his cell. Plaintiff informed Defendant that, 5 if he was sent back, he would have more spasms in his cell that night. Id. at 14-15. Plaintiff was 6 told by Defendant that, if he will not accept the Tylenol, there was nothing further he could do for 7 him. Defendant then left and Plaintiff experienced approximately five more episodes of spasms in 8 his cell that night. Id. at 15. 9 Plaintiff asserts Defendant knew that, in such situations, Plaintiff was in extreme pain and 10 moving him would increase the pain and possibly trigger spams. Defendant had been Plaintiff’s 11 “PCP for at least the previous seven years” and they “had experienced this scenario numerous times, 12 and it was usually routine.” Id. at 15. Plaintiff cites excerpts from a deposition of Defendant 13 allegedly taken on September 28, 2021, in Thomas v. Davey (Case No. 1:19-CV-00333-JLT-SAB; 14 concerning a prior incident in 2014) throughout. Id. at 10-11, 15-16, 19, 23-25. Plaintiff also cites 15 to progress notes from Defendant prescribing Toradol shots in September 2021, and one Dr. Patel 16 prescribing them in April 2019. Id. at 16-17. Plaintiff states Defendant also ordered Toradol shots 17 in September and November 2019, and provides numerous dates where he received such shots at 18 KVSP in 2019, 2020, 2021, and 2022, with “[m]any, if not most,” ordered by Defendant. Id. at 17, 19 27. Plaintiff cites to additional progress notes from treating nurses at KVSP regarding his inability 20 to be still, which he asserts Defendant understood. Id. at 17-18. 21 Plaintiff asserts that Defendant knew that no oral medications were effective at treating his 22 breakthrough pain and states that, on several occasions, Defendant prescribed him Tylenol 3 in 23 conjunction with Toradol. Id. at 20-21. Plaintiff provides a history of Defendant prescribing him 24 Toradol shots for pain, beginning in 2013. Id. at 21-22. 25 C. Analysis 26 Liberally construing the complaint, Plaintiff has again failed to allege an Eighth 27 Amendment claim of deliberate indifference to serious medical needs against Defendant. As to the 1 his suffering severe spasms and pain. But as to the second prong, Plaintiff does not assert facts 2 establishing that Defendant was deliberately indifferent to this need. Defendant prescribed Plaintiff 3 Tylenol 3, which Plaintiff refused. The fact that Plaintiff sought Toradol does not establish 4 deliberate indifference, as a difference of opinion on treatment between patient and provider does 5 not give rise to a claim. Franklin, supra, 662 F.2d at 1344; see Hart v. Kernan, No. 19-04331 EJD 6 (PR), 2021 WL 5045316, at *9 (N.D. Cal. Sept. 27, 2021), aff’d sub nom. Hart v. Foss, No. 21- 7 16802, 2023 WL 370973 (9th Cir. Jan. 24, 2023) (“When Defendant Ibrahimi saw Plaintiff again 8 after his second fall on January 19, he did prescribe a temporary cane, at Plaintiff’s request, and 9 prescribed a trial of magnesium to address muscle spasms. Plaintiff’s difference of opinion as to 10 what Defendant Ibrahimi should have prescribed or ordered to treat his back pain and falls cannot 11 demonstrate deliberate indifference.”) (internal citation omitted). 12 Though Plaintiff asserts that Defendant knew no oral medications were effective at treating 13 his breakthrough pain, Plaintiff also asserts that Defendant did not discontinue Toradol shots 14 entirely but, rather, did not prescribe them for this instance. See (Doc. 10 at 27). Plaintiff has not 15 alleged any facts from which any reasonable inference may be drawn that Defendant knew about 16 and was deliberately indifferent to his medical needs and acted, or failed to act, knowing of a 17 substantial risk of serious harm resulting from not prescribing Toradol shots for the February 27, 18 2020, instance. See Lewis v. Wang, No. 1:12-CV-01867-LJO, 2014 WL 1844556, at *5 (E.D. Cal. 19 May 8, 2014), report and recommendation adopted, 2014 WL 3362234 (July 9, 2014) (“Plaintiff 20 has shown that he has serious medical needs, because he suffers spasms in his lower back, and 21 excruciating pain … Plaintiff has not shown that any of the Defendants knew about and deliberately 22 disregarded his serious medical needs and acted, or failed to act, knowing of a substantial risk of 23 serious harm or injury to Plaintiff … a showing of medical malpractice or even gross negligence is 24 insufficient to establish a constitutional deprivation under the Eighth Amendment.”) (internal 25 quotations and citation omitted). 26 D. Further Leave to Amend Would Be Futile 27 Because Plaintiff’s first amended complaint is deficient for the same reasons as those 1 | remedy those deficiencies, the Court assesses that Plaintiff cannot cure his pleadings and, thus, that 2 | leave to amend would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 2013) 3 | (affirming dismissal of first amended complaint and finding leave to amend futile where 4 | complaint’s allegations belied plaintiff's entitlement to relief). 5 V. CONCLUSION, ORDER, AND RECOMMENDATION 6 The Clerk of the Court is directed to randomly assign a District Judge. 7 For the foregoing reasons, it is HEREBY ORDERED that Plaintiff's motion to excuse late 8 | filing (Doc. 9) is DENIED as moot. 9 And it is HEREBY RECOMMENDED that this action be dismissed, without leave to 10 | amend, based on Plaintiff’s failure to state a claim upon which relief can be granted. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 21 days after 13 | being served with a copy of these Findings and Recommendations, a party may file written 14 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 15 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave 16 | of Court and good cause shown. The Court will not consider exhibits attached to the Objections. 17 | To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the 18 | record by its CM/ECF document and page number, when possible, or otherwise reference the 19 | exhibit with specificity. Any pages filed in excess of the 15-page limitation may be disregarded by 20 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 21 | 636(b)()(C). A party’s failure to file any objections within the specified time may result in the 22 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 23 | IT IS SO ORDERED. | Dated: _ January 13, 2026 | Wr bo 25 UNITED STATES MAGISTRATE JUDGE 26 27 28