(PC) Cordova v. Wellpath Healthcare et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 02/05/2024 GRANTING the 7 Motion to Proceed IFP and DISMISSING the 6 First Amended Complaint. Notice of Amendment and Second Amended Complaint due within 30 days. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND MARIA CORDOVA, III,

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No. 2:23-cv-1226 KJN P

Plaintiff,
v.

ORDER

WELLPATH HEALTHCARE, INC., et al.,
Defendants.

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Plaintiff is a Butte County Jail inmate, proceeding pro se. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These

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payments will be forwarded by the appropriate agency to the Clerk of the Court each time the
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amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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Plaintiff filed an amended complaint, which supersedes the original complaint. As

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discussed below, plaintiff’s amended complaint is dismissed with leave to amend.

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Screening Standards

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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 upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act
To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

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(2009). The requisite causal connection between a supervisor’s wrongful conduct and the

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violation of the prisoner’s constitutional rights can be established in a number of ways, including

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by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision,

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or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202,

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1208 (9th Cir. 2011).

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Plaintiff’s Allegations

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Plaintiff names three defendants: Wellpath, Inc., health care provider for the Butte

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County Jail; Lt. J. Aqurkis, health care program manager at the Butte County Jail; and Sgt. L.

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Niles, facility administrator at the Butte County Jail. In his first claim, plaintiff claims his rights

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under the Ninth Amendment were violated, “of certain rights shall not be construed to deny or

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disparage,” and marks the medical care box. (ECF No. 6 at 3.) In support, plaintiff claims that

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Wellpath, in bad faith, along with the health care manager and others, conspired to deny plaintiff

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medical care for his Meniere’s Disease. Plaintiff is protected by the Americans with Disabilities

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Act (“ADA”) because Meniere’s Disease is listed in Section 2.07 of the “Blue Book” of the SSA.

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Such defendants also violated ADA, Title II, subtitle A “Healthcare.” (ECF No. 6 at 3.)

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Wellpath and Butte County Jail health care administrators have been in possession of plaintiff’s

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medical records regarding Meniere’s Disease, which was diagnosed by Dr. Asafa at Ampla, a

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rival health care company, and several medical staff at CDCR since 2012. Plaintiff suffered
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progression of hearing loss and other symptoms of Meniere’s Disease.
In his second claim, plaintiff alleges that his Fourteenth Amendment rights were violated

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by Wellpath and co-defendants’ failure to fulfill their mission in providing medical care.

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Defendants colluded to deny plaintiff proper care for his Meniere’s Disease, amounting to

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adverse action to his due process rights. As injury, plaintiff claims that defendants’ “neglect [has]

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infringed on [his] equal protection rights resulting in adverse action in another court matter by

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defendants’ policy of treatment according to court dates.” (ECF No. 6 at 4.)

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Plaintiff seeks money damages.
Discussion

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Ninth Amendment

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While plaintiff’s reference to the Ninth Amendment is unclear, to the extent he is

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attempting to state a claim directly under the Ninth Amendment, the amended complaint fails to

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state a claim. The Ninth Amendment provides that “[t]he enumeration in the Constitution, of

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certain rights, shall not be construed to deny or disparage others retained by the people.” U.S.

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Const. amend. IX. However, such amendment “has never been recognized as independently

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securing any constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v.

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City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); accord Jenkins v. C.I.R., 483 F.3d 90, 93 (2d

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Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights. . . .”).

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Accordingly, plaintiff cannot state a claim under the Ninth Amendment.

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Americans with Disabilities Act

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Plaintiff alleges a violation of Title II of the ADA, which prohibits discrimination on the

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basis of disability. Lowell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the

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Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability

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shall, by reason of such disability, be excluded from participation in or be denied the benefits of

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the services, programs, or activities of a public entity, or be subject to discrimination by such

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entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state prisons.

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Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); see also Armstrong v.

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Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). In order to state a claim under the ADA, plaintiff
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must have been “improperly excluded from participation in, and denied the benefits of, a prison

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service, program, or activity on the basis of his physical handicap.” Armstrong, 124 F.3d at 1023.

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Here, plaintiff cannot state a cognizable ADA claim. Violations based on treatment or

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lack of treatment, including certain accommodations, do not support an ADA claim. The ADA

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prohibits discrimination because of disability, not inadequate treatment for a disability. Simmons

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v. Navajo Cty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (the ADA is not violated by prison’s

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failure to attend to medical needs of disabled prisoners), overruled on other grounds by Castro v.

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County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); see also Bryant v. Madigan, 84

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F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s simply failing to

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attend to the medical needs of its disabled prisoners . . . . The ADA does not create a remedy for

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medical malpractice.”). Also, inadequate treatment or lack of treatment for an inmate’s medical

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condition does not in itself suffice to create liability under the ADA. Smith v. Clark Cnty., 2022

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WL 17721004, at *5 (D. Nev. Dec. 15, 2022); Tandel v. Cty. of Sacramento, 2015 WL 1291377,

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at *18 (E.D. Cal. Mar. 20, 2015). Thus, plaintiff’s complaint regarding lack of medical care for

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his Meniere’s Disease is not sufficient to state a claim under the ADA. Bryant, 84 F.3d at 249

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(“Bryant was not treated worse because he was disabled.”); Luna v. Cal. Health Care Servs., 2011

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WL 6936399 at *5 (E.D. Cal. 2011) (prisoner’s allegations of inadequate medical care do not

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state a claim under the ADA).

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Equal Protection Clause

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Plaintiff also fails to state a claim under the Equal Protection Clause. To state a claim

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under the Equal Protection Clause for a member of a protected class, a plaintiff must demonstrate

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that (1) he is a member of a protected class and (2) that the defendant acted with an intent or

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purpose to discriminate against him based upon his membership in a protected class. Barren v.

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Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998). A mental disability is not a quasi-suspect

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classification. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985).

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Although disabled persons do not constitute a suspect class, the Equal Protection Clause prohibits

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irrational and invidious discrimination against them. Dare v. Cal., 191 F.3d 1167, 1174 (9th Cir.

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1999). The disabled plaintiff must have been treated differently than others similarly situated, by
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reason of the plaintiff’s classification. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.

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2001). “‘Discriminatory purpose’. . . implies more than intent as volition or intent as awareness

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of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course

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of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an

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identifiable group.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal

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citation omitted).

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Again, plaintiff does not allege he was denied medical care because he is disabled; rather

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he was denied medical care for his Meniere’s Disease. Plaintiff’s allegations concern the

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provision of medical care do not state a cognizable Equal Protection claim.

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Conspiracy

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Plaintiff also claims defendants conspired to deny plaintiff medical care. To state a claim

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for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts showing an agreement

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or meeting of minds between the defendants to violate his constitutional rights. Woodrum v.

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Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). Plaintiff must also show how an actual

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deprivation of his constitutional rights resulted from the alleged conspiracy. Id. “‘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 v. Fox, 312 F.3d 423, 441

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(9th Cir. 2002) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539,

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1541 (9th Cir. 1989)).

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Here, plaintiff’s claim that defendants conspired to deny plaintiff medical care is entirely

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conclusory. Plaintiff has not alleged any specific fact showing an agreement or meeting of the

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minds among the defendants to violate plaintiff’s constitutional rights. Woodrum, 866 F.2d at

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1126. As a result, the undersigned finds that the conspiracy allegation fails to state a cognizable

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claim against defendants.

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Medical Claims

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Liberally construed, plaintiff appears to contend that he is not receiving medical care or is

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receiving inadequate medical care for Meniere’s Disease. But because plaintiff’s amended

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complaint includes no specific facts as to such medical care, the undersigned cannot determine
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whether plaintiff can state a cognizable civil rights claim as to a particular defendant. Further,

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because plaintiff also mentions the CDCR, it is unclear whether plaintiff is a pretrial detainee or

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was convicted but is serving his sentence in the county jail. Therefore, plaintiff is provided the

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standards governing both Eighth and Fourteenth Amendment claims. Plaintiff is granted leave to

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file an amended complaint; if he is a pretrial detainee, he should address the required elements

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under the Fourteenth Amendment. If he was convicted at the time of the alleged violations, he

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should address the required elements under the Eighth Amendment. Plaintiff is cautioned that he

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must identify the defendant who failed to provide such care, and how that person’s actions

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violated plaintiff’s constitutional rights.

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A. Legal Standards: Pretrial Detainee

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If plaintiff is a pretrial detainee, his claim of inadequate medical care arises under the

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Fourteenth Amendment and is evaluated under an objective deliberate indifference standard. See

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Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (citing Castro v. Cnty. of Los

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Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc)). The elements of such a claim are: “(i)

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the defendant made an intentional decision with respect to the conditions under which the

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plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious

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harm; (iii) the defendant did not take reasonable available measures to abate that risk, even

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though a reasonable official in the circumstances would have appreciated the high degree of risk

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involved -- making the consequences of the defendant’s conduct obvious; and (iv) by not taking

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such measures, the defendant caused the plaintiff’s injuries.” Gordon, 888 F.3d at 1125 (citing

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Castro, 833 F.3d at 1071).

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“With respect to the third element, the defendant’s conduct must be objectively

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unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular

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case.’” Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071 (quoted sources omitted)).

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Moreover, a defendant’s “mere lack of due care” is insufficient to state a Fourteenth

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Amendment claim. Castro, 833 F.3d at 1071 (citations omitted). “Thus, the plaintiff must ‘prove

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more than negligence but less than subjective intent -- something akin to reckless disregard.’”

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Gordon, 888 F.3d at 1125 (citing Castro, 833 F.3d at 1070). Therefore, gross negligence, a
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difference in medical opinion, medical malpractice, or misdiagnosis does not establish a

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constitutional violation. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice

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does not become a constitutional violation merely because the victim is a prisoner.”); Gordon,

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888 F. 3d at 1124-25 (a pretrial detainee must show more than a lack of due care or negligence.)

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Finally, the delay of, or interference with, medical treatment for a serious medical need,

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however, can amount to deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (citing McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). The inmate

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must show harm resulting from the delay. Id.

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B. Legal Standards: Eighth Amendment

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A convicted prisoner’s claim of inadequate medical care does not constitute cruel and

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unusual punishment in violation of the Eighth Amendment unless the mistreatment rises to the

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level of “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference

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may be shown by the denial, delay, or intentional interference with medical treatment or by the

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way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.

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1988). The two-part test for deliberate indifference requires plaintiff to show (1) “a ‘serious

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medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the ‘unnecessary and wanton infliction of pain,’ ” and (2) “the defendant’s

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A defendant does not

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act in a deliberately indifferent manner unless the defendant “knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Negligence allegations are insufficient. Deliberate indifference “requires more than

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ordinary lack of due care.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting

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Farmer, 511 U.S. at 835). The indifference to the prisoner’s medical needs must be substantial --

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negligence, inadvertence, or differences in medical judgment or opinion do not rise to the level of

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a constitutional violation. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (negligence

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constituting medical malpractice is not sufficient to establish an Eighth Amendment violation).
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Leave to Amend
Because plaintiff’s amended complaint fails to state cognizable claims for relief, the

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amended complaint must be dismissed. The court will, however, grant leave to file a second

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amended complaint.

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If plaintiff chooses to amend, plaintiff must demonstrate how the conditions about which

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he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., West v.

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Atkins, 487 U.S. 42, 48 (1988). Also, the second amended complaint must allege in specific

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terms how each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There

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can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague, and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d

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266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

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v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

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supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

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omitted)). Once plaintiff files a second amended complaint, the prior pleadings no longer serves

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any function in the case. Therefore, in a second amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Sheriff of Butte County filed concurrently herewith.
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3. Plaintiff’s amended complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original of the Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act,

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the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

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complaint must also bear the docket number assigned to this case and must be labeled “Second

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Amended Complaint.”

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Failure to file a second amended complaint in accordance with this order may result in the
dismissal of this action.
5. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by

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a prisoner.

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Dated: February 5, 2024

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/cord1226.14n

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND MARIA CORDOVA, III,
Plaintiff,

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v.

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Defendants.
Plaintiff hereby submits the following document in compliance with the court’s order
filed______________.

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NOTICE OF AMENDMENT

WELLPATH HEALTHCARE, et al.,

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No. 2:23-cv-1226 KJN

DATED:

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Second Amended Complaint

________________________________
Plaintiff

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