1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAMERON MICHAEL WELCH, No. 2:21-cv-2344 AC P 12 Plaintiff, 13 v. ORDER 14 WELLPATH DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 For the reasons stated below, plaintiff’s motion to proceed in forma pauperis will be granted and 21 he will be given an opportunity to amend the complaint. 22 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 24 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 26 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 3 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 4 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 5 1915(b)(2). 6 II. SCREENING REQUIREMENT 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 9 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 10 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 12 U.S.C. § 1915A(b)(1) & (2). 13 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d 15 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on 16 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’” 17 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490 18 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 19 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations 21 omitted). 22 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 23 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 24 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 25 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 26 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 27 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 28 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 1 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 2 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 3 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 4 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 5 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 6 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 8 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added) 9 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 10 factual content that allows the court to draw the reasonable inference that the defendant is liable 11 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint 12 under this standard, the court must accept as true the allegations of the complaint in question, see, 13 e.g., Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as 14 well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in 15 the plaintiff’s favor, see Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 16 III. THE COMPLAINT 17 At all times relevant to this action, plaintiff was a pretrial detainee housed at Yuba County 18 Jail in Marysville, California. Plaintiff proceeds against the Director of Wellpath1 and against 19 Yuba County Jail employees Dr. Aponte, Dr. Kune, and Registered Nurse (RN) Maria Malasan. 20 Plaintiff seeks damages. 21 Plaintiff alleges that between September and November 2021, the defendants failed to 22 treat his injured right knee. Plaintiff repeatedly asked the jail’s nurses and doctors for an MRI, 23 and even filed several grievances, but he was only prescribed 8 doses of Tylenol per week. In 24 one instance, plaintiff did not even receive this pain medication for an entire week. Allegedly, 25 Dr. Aponte tried to get approval from the Wellpath Director for an MRI, but these requests were 26 denied pursuant to an unspecified policy. Plaintiff claims that Dr. Aponte and Dr. Kune “under 27 1 Liberally construing plaintiff’s allegations, Wellpath contracts to provide healthcare operations 28 within the jail.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAMERON MICHAEL WELCH, No. 2:21-cv-2344 AC P 12 Plaintiff, 13 v. ORDER 14 WELLPATH DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 For the reasons stated below, plaintiff’s motion to proceed in forma pauperis will be granted and 21 he will be given an opportunity to amend the complaint. 22 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 24 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 26 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 3 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 4 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 5 1915(b)(2). 6 II. SCREENING REQUIREMENT 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 9 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 10 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 12 U.S.C. § 1915A(b)(1) & (2). 13 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d 15 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on 16 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’” 17 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490 18 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 19 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations 21 omitted). 22 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 23 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 24 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 25 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 26 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 27 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 28 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 1 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 2 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 3 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 4 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 5 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 6 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 8 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added) 9 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 10 factual content that allows the court to draw the reasonable inference that the defendant is liable 11 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint 12 under this standard, the court must accept as true the allegations of the complaint in question, see, 13 e.g., Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as 14 well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in 15 the plaintiff’s favor, see Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 16 III. THE COMPLAINT 17 At all times relevant to this action, plaintiff was a pretrial detainee housed at Yuba County 18 Jail in Marysville, California. Plaintiff proceeds against the Director of Wellpath1 and against 19 Yuba County Jail employees Dr. Aponte, Dr. Kune, and Registered Nurse (RN) Maria Malasan. 20 Plaintiff seeks damages. 21 Plaintiff alleges that between September and November 2021, the defendants failed to 22 treat his injured right knee. Plaintiff repeatedly asked the jail’s nurses and doctors for an MRI, 23 and even filed several grievances, but he was only prescribed 8 doses of Tylenol per week. In 24 one instance, plaintiff did not even receive this pain medication for an entire week. Allegedly, 25 Dr. Aponte tried to get approval from the Wellpath Director for an MRI, but these requests were 26 denied pursuant to an unspecified policy. Plaintiff claims that Dr. Aponte and Dr. Kune “under 27 1 Liberally construing plaintiff’s allegations, Wellpath contracts to provide healthcare operations 28 within the jail. 1 Wellpath guidance and rules have failed to ensure medical care was provided to me.” RN 2 Malasan was “negligent” because she observed an “obvious need for serious medical care.” 3 When plaintiff did finally get an MRI of his knee, it showed a torn meniscus with a 4 significant amount of missing cartilage and other damage. A doctor with Sutter Buttes Imaging 5 recommended physical therapy and surgery, but these recommendations have been denied, and 6 plaintiff’s pain medication remains unaltered. Plaintiff claims that he now suffers hip pain and 7 that the muscles in his right leg have atrophied. 8 IV. FAILURE TO STATE A CLAIM 9 “[C]laims for violations of the right to adequate medical care brought by pretrial 10 detainees against individual defendants under the Fourteenth Amendment must be evaluated 11 under an objective deliberate indifference standard.” Gordon v. County of Orange, 888 F.3d 12 1118, 1124–25 (9th Cir. 2018). The elements of a pretrial detainee's medical care claim are: (1) 13 the defendant made an intentional decision with respect to the conditions under which the 14 plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious 15 harm; (3) the defendant did not take reasonable available measures to abate that risk, even though 16 a reasonable official in the circumstances would have appreciated the high degree of risk 17 involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking 18 such measures, the defendant caused the plaintiff's injuries. Id. at 1125. “The mere lack of due 19 care by a state official does not deprive an individual of life, liberty, or property under the 20 Fourteenth Amendment.” Id. (quotation marks and citation omitted). “Thus, the plaintiff must 21 prove more than negligence but less than subjective intent—something akin to reckless 22 disregard.” Id. (quotation marks and citation omitted). 23 Plaintiff’s conclusory allegations fail to state a Fourteenth Amendment claim for 24 inadequate medical care, rendering it impossible for the Court to determine what role the 25 defendants played in denying medical care or their reasons for their actions. Plaintiff does not 26 provide any context to frame this claim, such as with whom he spoke, what he said to them, or 27 how they responded. It is also unclear what policy underlies the denials of his and Dr. Aponte’s 28 //// 1 requests for an MRI, as well as the denials related to physical therapy and surgery. Without such 2 information, this claim cannot proceed. 3 V. LEAVE TO AMEND 4 For the reasons set forth above, the court finds that the complaint does not state any 5 cognizable claims. However, it appears that plaintiff may be able to allege facts to remedy this 6 and he will be given the opportunity to amend the complaint if he desires. 7 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 8 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 9 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 10 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 11 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 12 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 14 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 15 268 (9th Cir. 1982) (citations omitted). 16 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 17 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 18 complete in itself without reference to any prior pleading. This is because, as a general rule, an 19 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 21 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 22 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 23 complaint, the original complaint no longer serves any function in the case. Therefore, in an 24 amended complaint, as in an original complaint, each claim and the involvement of each 25 defendant must be sufficiently alleged. 26 VI. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 27 Your request to proceed in forma pauperis is granted and you are not required to pay the 28 entire filing fee immediately. You are being given leave to amend because the facts you have 1 alleged in the complaint are not enough to state a claim for relief. To state a claim for deliberate 2 indifference, you must allege facts showing that each defendant was aware of a risk to your health 3 and safety and ignored that risk. To show a constitutional violation, a plaintiff must show more 4 than negligence on the part of defendants. Rather, he must show that defendants took actions in 5 deliberate indifference to the serious health consequences to plaintiff. 6 If you choose to amend your complaint, the first amended complaint must include all the 7 claims you want to make because the court will not look at the claims or information in the 8 original complaint. Any claims and information not in the first amended complaint will not 9 be considered. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s requests for leave to proceed in forma pauperis, ECF No. 2, are GRANTED. 12 2. Plaintiff’s motion for an extension of time and assistance to submit a trust account 13 statement (ECF No. 7) is denied as moot as the statement has been filed. 14 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 16 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 Director of the California Department of Corrections and Rehabilitation filed concurrently 18 herewith. 19 4. Plaintiff’s complaint fails to state a claim upon which relief may be granted, see 28 20 U.S.C. § 1915A, and will not be served. 21 5. Within thirty days from the date of service of this order, plaintiff may file an amended 22 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 23 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 24 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 25 original and two copies of the amended complaint. Failure to file an amended complaint in 26 accordance with this order will result in in a recommendation that this action be dismissed. 27 //// 28 //// 1 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 2 | form used in this district. 3 | DATED: December 15, 2022 ~ 4 Ctlhter— Lane ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28