(PC) Donley v. Wellpath et al

Filing 21

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Conspiracy Claim re: 19 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Stanley A. Boone on 9/26/2024. Referred to Judge Sherriff; Objections to F&R due within fourteen (14) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN ARLIN DONLEY,

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Plaintiff,

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No. 1:23-cv-01740-KES-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CONSPIRACY CLAIM

v.
WELLPATH, et al.,

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(ECF No. 19)

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
U.S.C. § 1983.
Currently before the Court is Plaintiff’s first amended complaint, filed July 8, 2024. (ECF
No. 19.)

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);

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see also 28 U.S.C. § 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that

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each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted

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unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability”

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falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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SUMMARY OF ALLEGATIONS

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The Court accepts Plaintiff’s allegations in his first amended complaint as true only for the
purpose of the screening requirement under 28 U.S.C. § 1915.
On December 30, 2021, Plaintiff was evaluated during booking into the Madera County

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Jail by Defendant Eva, who was advised about a couple serious health conditions and medications

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Plaintiff was taking. Prior to his incarceration, Plaintiff was scheduled for surgery by his doctor.

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When Plaintiff was released from quarantine, Defendant Eva re-evaluated Plaintiff, took

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photographs of Plaintiff’s medical issues, and sent them to Defendants Dr. Gustavian, Medina,

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and Debbie for visible diagnosis. Defendants provided Plaintiff with Mobic as a medical decision

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to replace surgery. Plaintiff signed a medical release form from the Madera County Jail to obtain

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his medical records from his doctor at Camarena Health Center regarding his torn ACL.
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Plaintiff was seen by Defendant Debbie to evaluate a skin disorder and to discuss his torn

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ACL. Defendant Debbie advised Plaintiff that per policy, Defendant Wellpath would not provide

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Plaintiff any further assistance for his injury, despite the fact that his doctor recommended

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surgery. Defendants Dr. Gustavian, Medina, and Debbie prescribed Mobic for the duration of his

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incarceration in place of surgery. Plaintiff states that after taking the medication Mobic, for the

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first year, he started suffering severe abdominal pain which began to obstruct his mobility/breath

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and work performance. Plaintiff immediately submitted a sick call slip and advised medical staff

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about his pain, but Defendants Dr. Gustavian, Medina, Debbie, Eva, Michelle, Maria and Chloe

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all disregarded stating they couldn’t do anything outside of providing Mobic.

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The module officer contacted Defendants Garza and Medina regarding Plaintiff’s serious

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medical condition. Plaintiff was again examined by Defendants Michelle and Maria who both

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witnessed the Plaintiff’s medical condition and pain. Defendants took Plaintiff’s vitals and

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informed him he had a hernia and would live. Plaintiff requested to be taken to the hospital, but

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he was told per policy you have to be dying to be taken to the hospital. Plaintiff was also told that

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if he continued to complain to medical he would be written up. Defendants Dr. Gustavian,

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Medina, and Debbie prescribed stool softeners to treat his hernia as a substitute for specialized

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treatment. After the first week of taking the stool softeners he started unknowingly defecating

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himself and noticed blood. Defendant Garza was contacted about Plaintiff’s bleeding who

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disregarded the condition since Plaintiff had just been evaluated by medical.

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Plaintiff reported his bleeding to module officer Chavez who witnessed the amount of

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blood in the toilet and contacted watch commanders sergeant Khela and sergeant Quick.

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Defendants Khela and Quick ordered the officer to write the report on the issue, but to note that

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per Defendants Medina and Eva it was just a hernia and nothing could be done about it under

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Wellpath’s policy. Plaintiff showed the toilet full of blood to Defendants Chloe and Michelle and

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both affirmed subjective knowledge to all medical administrators and watch commanders of the

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condition. The responses were, we told you it was your hernia and the Wellpath policy prevents

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treatment. After a few days of bleeding, Plaintiff advised Defendants Alejandra and Jane Doe,

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who saw the toilet full of blood, and they told him he was fine. Module officer Medina witnessed
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blood in the toilet and contacted Defendants Villanuava and Townsend, who told the officer that

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there was nothing officials could do other than write a report. Plaintiff called his ex-wife to let

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her know what was going on and asked her to call the jail to file a complaint. Immediately after

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Plaintiff’s ex-wife contacted the facility, Plaintiff was examined by Defendant Michelle who was

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to document Plaintiff’s vital signs. During the examination, Defendant Michelle advised that

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Defendants Dr. Gustavian and Debbie were taking Plaintiff off his prescribed medication Mobic

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and antibiotics because it was causing bleeding. Plaintiff was taken to the hospital and the doctor

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recommended he undergo an immediate colonoscopy. Plaintiff was returned to the jail and seen

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by nurse Corrina who advised of the doctor’s recommendations. Plaintiff was advised that the

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doctor’s recommendations would be conveyed to medical administrators-Dr. Gustavian, Medina,

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and Debbie for further assistance. Plaintiff was examined by Defendant Eva who told him that

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medical administrators said he had a hernia and to deal with it. When Plaintiff advised of the

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doctor’s recommendations, Eva told him to stop harassing medical staff or he would be written

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up.

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Defendants Victoria and Libby began to harass Plaintiff during pill call because Plaintiff

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refused to take the medication which they prescribed. Defendants Victoria and Libby tried to get

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Plaintiff written up by module officers for refusing to take the prescribed medication which

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caused the bleeding. Plaintiff is still bleeding but is afraid to file a sick call to prevent being

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written up. A month of bleeding from his rectum was an obvious risk to his health and safety.

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Sergeant Khela, sergeant Quick, corporal Garza, corporal Townsend, and sergeant

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Villanuava are the watch commanders in charge of the supervision of all staff medical and

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correctional officers.

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Defendants Chief Manuel Perez and Sheriff Tyson Pogue knowingly failed in their

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responsibility to take reasonable measures to protect Plaintiff from injury and risk of harm.

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Plaintiff states that the culture created under Defendants Manuel Perez regarding the training and

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lack of supervision continued by Defendant Tyson Pogue falls on the responsibility of both

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parties. Madera County has a history of denying proper and adequate medical treatment to its

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prisoners. Defendants Perez and Pogue have knowledge of the inadequate medical assistance
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toward prisoners based on the illegal conduct by medical administrators which is condoned by

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commanding officers. Defendants Perez and Pogue have full knowledge of Madera County and

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Wellpath’s unlawful policy. It is the custom and practice of Madera County to deny medical

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assistance to save money. Defendants Perez and Pouge possessed the final authority to enforce

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the unconstitutional custom that Madera County and Wellpath established and continue to

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demonstrate to save money which is the moving force behind the denial of proper medical

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treatment. The described policy/custom is not written, it is part of the fabric of culture that is and

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of itself how Defendants handle matters in the jail that resulted in Plaintiff’s injuries.

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III.

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DISCUSSION

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A.

Denial of Medical Treatment

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Monell Liability-Wellpath and Madera County

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A local government unit may not be held responsible for the acts of its employees under a

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respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 658,

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691 (1978). Rather, a local government unit may only be held liable if it inflicts the injury

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complained of through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d 707,

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713 (9th Cir. 2010). Generally, to establish municipal liability, the plaintiff must show that a

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constitutional right was violated, the municipality had a policy, that policy was deliberately

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indifferent to plaintiff’s constitutional rights, and the policy was “the moving force” behind the

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constitutional violation. Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400

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(1997); Burke v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009); Gibson v. County of

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Washoe, Nev., 290 F.3d 1175, 1185-86 (9th Cir. 2002). “The custom or policy must be a

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‘deliberate choice to follow a course of action . . . made from among various alternatives by the

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official or officials responsible for establishing final policy with respect to the subject matter in

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question.’ ” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (quoting

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Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)).

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There can be no municipal liability without an underlying constitutional violation. Scott v.

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Henrich, 39 F.3d 912, 916 (9th Cir. 1994). A Monell claim can proceed under three theories of

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municipal liability: “(1) when official policies or established customs inflict a constitutional

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injury; (2) when omissions or failures to act amount to a local government policy of deliberate

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indifference to constitutional rights; or (3) when a local government official with final policy-

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making authority ratifies a subordinate's unconstitutional conduct.” Brown v. Contra Costa Cty.,

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No. C 12-1923 PJH, 2014 WL 1347680, at *8 (N.D. Cal. Apr. 3, 2014) (citing Clouthier v. Cty.

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of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010)). Whichever theory is alleged, the

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plaintiff must plead facts showing that “the policy is the moving force behind the constitutional

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violation.” Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011); see also City of

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Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985) (“At the very least there must be an affirmative

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link between the policy and the particular constitutional violation alleged.”). Further, “[p]roof of a

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single incident of unconstitutional activity is not sufficient to impose liability under Monell,

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unless proof of the incident includes proof that it was caused by an existing, unconstitutional

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municipal policy, which policy can be attributed to a municipal policymaker.” Tuttle, 471 U.S. at

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823-24.

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A Monell claim requires more than “sporadic” incidents. See Trevino v. Gates, 99 F.3d

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911, 918 (9th Cir. 1996) (“Liability for improper custom may not be predicated on isolated or

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sporadic incidents.”). An “isolated instance ... is insufficient evidence of a ‘policy statement,

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ordinance, regulation, or decision officially adopted and promulgated by’ the County.” Marsh v.

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County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (internal citations omitted).

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Defendant Wellpath Medical is private company contracted with Madera County to

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provide medical care at the Madera County Jail. Private entities, such as defendant Wellpath

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Medical, that act under color of state law, may be liable under Monell. See Tsao v. Desert Palace,

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Inc., 698 F.3d 1128, 1139 (9th Cir. 2012). The Supreme Court has held that municipalities may

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be held liable as “persons” under § 1983 “when execution of a government's policy or custom,

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whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

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official policy, inflicts the injury.” Monell, 436 U.S. at 694.
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Plaintiff contends Wellpath has a policy to deny hernia surgery and appropriate treatment

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solely to save money. Plaintiff’s allegations that he was repeatedly denied surgery and/or

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appropriate treatment for his hernia because of Wellpath’s policy is sufficient to state a

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cognizable Monell claim against Wellpath Medical and the County of Madera.

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2.

Inadequate Medical Care as to Individual Defendants

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Plaintiff also brings claims for inadequate medical care against medical administrators Dr.

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Gustavian, Medina, Debbie, Eva, Michelle, Maria, Chloe, Alejandra, Victoria, Libby, and Jane

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Doe.

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A pretrial detainee’s rights arise under the Fourteenth Amendment’s Due Process Clause

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whereas a convicted prisoner’s rights arise under the Eighth Amendment’s Cruel and Unusual

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Punishments Clause. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). A deliberate indifference test

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applies to both a pretrial detainee’s claim and a prisoner’s claim, but for a pretrial detainee it is an

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objective test, rather than the subjective test which applies to a prisoner’s claim. See Gordon v.

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County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). A “pretrial detainee need not

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prove those subjective elements about the officer’s actual awareness of the level of risk.” Id.

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(quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)). Because Plaintiff

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claims involve the conditions at the Madera County Jail as a pretrial detainee, the Court applies

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the objective deliberate indifference standard. Under this standard, a pretrial detainee must allege:

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(i) the defendant made an intentional decision with respect to the conditions under which
the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of
suffering serious harm; (iii) the defendant did not take reasonable available measures to
abate that risk, even though a reasonable official in the circumstances would have
appreciated the high degree of risk involved—making the consequences of the defendant's
conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's
injuries.

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Gordon, 888 F.3d at 1125. With regard to the third element, the defendant's conduct must be
objectively unreasonable —“a test that will necessarily turn[ ] on the facts and circumstances of
each particular case.” Id. (internal citations and internal quotation marks omitted). A “mere lack
of due care by a state official does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.” Id. (quotations and citations omitted). Thus, the plaintiff must “prove
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more than negligence but less than subjective intent—something akin to reckless disregard.” Id.
Based on a thorough review of Plaintiff’s second amended complaint which must be

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liberally construed, Plaintiff states a cognizable claim for deliberate indifference against

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Defendants Chief Manuel Perez, Sheriff Tyson Pogue, sergeant Khela, sergeant Quick, corporal

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Garza, corporal Townsend, sergeant Villanuava, Dr. Gustavian, Medina, Debbie, Eva, Michelle,

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Maria, Chloe, Alejandra, Victoria, Libby, and Jane Doe based on the allegations that he was

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repeated denied proper medical treatment based on the alleged policy (which was the moving

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force) to deny medical care solely to save money is sufficient to demonstrate deliberate

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indifference to Plaintiff’s health and safety.

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B.

Conspiracy

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Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to

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violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal

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quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d

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1539, 1540-41 (9th Cir. 1989)), and that an “ ‘actual deprivation of his constitutional rights

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resulted from the alleged conspiracy,’ ” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006)

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(quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989)). “ ‘To be liable,

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each participant in the conspiracy need not know the exact details of the plan, but each participant

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must at least share the common objective of the conspiracy.’ ” Franklin, 312 F.3d at 441 (quoting

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United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity

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to show an agreement or a meeting of the minds to violate the plaintiff's constitutional rights.

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Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum,

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866 F.2d at 1126). The mere statement that defendants “conspired” is not sufficient to state a

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claim. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

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The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state

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specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of

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Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted)

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(discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th
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Cir. 1989) (“To state a claim for conspiracy to violate one's constitutional rights under section

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1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.”

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(citation omitted)).

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Plaintiff contends that when complaints were filed against Defendants Dr. Gustavian,

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Medina, Debbie, Eva, Michell, Maria, Chloe, Jane Doe, Alejandra, Victoria, and Libby,

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Defendants Khela, Quick, Garza, Townsend, and Villanuava would defend them of their wrongs

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which constitutes “conspiracy” to deny medical assistance in violation of the Eighth Amendment.

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Plaintiff’s allegations of conspiracy under § 1983 fail to state a claim because his allegations are

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conclusory and merely speculative. Though he states Defendants “conspired” together, he does

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not provide any specific facts that show that any of the Defendants had an agreement to violate

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his right to medical treatment. There is no indication of an actual agreement between any of the

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Defendants. Therefore, Plaintiff fails to state a claim for conspiracy.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed on Plaintiff’s Monell claims against Wellpath and County of

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Madera, and deliberate indifference claims against Chief Manuel Perez, Sheriff

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Tyson Pogue, sergeant Khela, sergeant Quick, corporal Garza, corporal

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Townsend, sergeant Villanuava, Dr. Gustavian, Medina, Debbie, Eva, Michelle,

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Maria, Chloe, Alejandra, Victoria, Libby, and Jane Doe; and

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Plaintiff’s conspiracy claim be dismissed from the action for failure to state a
cognizable claim for relief.

These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 26, 2024
UNITED STATES MAGISTRATE JUDGE

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