(PC) Kutterer v. Facility Wellpath Medical et al

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 2/6/2024 GRANTING plaintiff's #9 request to proceed ifp and DISMISSING plaintiff's complaint with leave to file a second amended complaint within 30 days. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order.(Yin, K)

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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 MARCUS KUTTERER, 12 13 14 15 Plaintiff, v. 18 ORDER FACILITY WELLPATH MEDICAL, et al., Defendants. 16 17 No. 2:23-cv-2970 KJN P Introduction Plaintiff is a county prisoner, proceeding without counsel. Plaintiff seeks relief pursuant 19 to 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 20 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 21 § 636(b)(1). 22 Application to Proceed In Forma Pauperis 23 24 25 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. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is 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 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 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 Screening Standards 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 9 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 10 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 11 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 12 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 14 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 15 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 16 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 17 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 18 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 19 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 20 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 21 1227. 22 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 23 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 24 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 25 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 26 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 27 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 28 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 2 1 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 2 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 3 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 4 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 5 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 6 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 7 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 8 Discussion 9 On December 20, 2023, plaintiff filed the original complaint. (ECF No. 1) On January 10 22, 2024, plaintiff filed an amended complaint. (ECF No. 8.) Accordingly, the undersigned 11 herein screens the amended complaint. Fed. R. Civ. P. 15. 12 Named as defendants in the amended complaint are Solano County, Wellpath Medical, 13 Dr. Wong and Legal Officer Mrs. Rison. Plaintiff’s amended complaint contains three claims for 14 relief. 15 Plaintiff seeks money damages and an investigation of his claims. 16 Claim One 17 In claim one, plaintiff alleges that he is a disabled pretrial detainee in the Solano County 18 Jail. Plaintiff alleges that he was taken out of his wheelchair and thrown on the ground into a 19 dirty safety cell because no bed was available in the medical unit. Plaintiff alleges that his skin 20 graft tore open and bled all over the place. Plaintiff alleges that “the[y] know my leg is almost 21 amputated.” Plaintiff alleges that he cannot walk. Plaintiff alleges that “they know I suffer from 22 mental illness.” Plaintiff alleges that he was “on meds in station list for bipolar disorder.” 23 Plaintiff alleges that defendant Wellpath Medical’s policy discriminates against plaintiff’s 24 disability and disregards his safety. 25 As legal claims for claim one, plaintiff alleges excessive force, “mental health issue,” and 26 “I’m disabled inmate.” The undersigned construes claim one to allege claims for inadequate 27 mental health care and excessive force in violation of the Fourteenth Amendment See Gordon v. 28 County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (claims for violations of right to 3 1 adequate to medical care by pretrial detainees brought under Fourteenth Amendment); Kingsley 2 v. Hendrickson, 576 U.S. 389, 397-98, 399 (2015) (the right of pretrial detainees to be free from 3 excessive force is guaranteed by the Due Process Clause of the Fourteenth Amendment). The 4 undersigned also construes claim one to raise a claim under the Americans with Disabilities Act 5 (“ADA”). 6 7 8 At the outset, the undersigned observes that the only defendant named in claim one is defendant Wellpath Medical. The undersigned first considers plaintiff’s excessive force claim. Plaintiff apparently raises an excessive force claim based on the allegation that he was 9 thrown to the ground in the safety cell. Plaintiff alleges that defendant Wellpath Medical has a 10 policy that disregards his safety. Plaintiff appears to claim that defendant Wellpath Medical’s 11 policy caused the alleged excessive force. 12 Defendant Wellpath Medical is private company contracted with Solano County to 13 provide medical care at the Solano County Jail. See Oliveria v. Solano County Sheriff’s Custody 14 Division, 2023 WL 2976246, at *2 (E.D. Cal. Apr. 17, 2023.) Private entities, such as defendant 15 Wellpath Medical, that act under color of state law, may be liable under Monell v. Dep’t. of 16 Social Services, 436 U.S. 585 (1978). See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th 17 Cir. 2012). 18 The Supreme Court has held that municipalities may be held liable as “persons” under 19 § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or 20 by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” 21 Monell, 436 U.S. at 694. To properly plead a Monell claim based on an unconstitutional custom, 22 practice, or policy, plaintiff must demonstrate that (1) he possessed a constitutional right of which 23 he was deprived; (2) the municipality had a policy; (3) such policy amounts to deliberate 24 indifference to plaintiff’s constitutional right; and (4) the policy is the moving force behind the 25 constitutional violation. Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th 26 Cir. 1997). The municipal policy at issue must be the result of a “‘longstanding practice or 27 custom which constitutes the standard operating procedure of the local government entity.’” 28 Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of San Francisco, 4 1 308 F.3d 968, 984-85 (9th Cir. 2002)). 2 While plaintiff alleges that defendant Wellpath Medical has a policy that disregards 3 plaintiff’s safety, plaintiff does not describe this policy in any detail. In addition, defendant 4 Wellpath Medical provides medical care at the Solano County Jail. If plaintiff files an amended 5 complaint, plaintiff shall describe the policy he challenges and address how a policy of this 6 medical provider caused plaintiff to suffer excessive force. Accordingly, this claim is dismissed. 7 As stated above, in claim two plaintiff alleges violation of his Fourteenth Amendment 8 right to adequate mental health care. However, plaintiff alleges no facts demonstrating that he 9 has been denied mental health treatment. Plaintiff also alleges no facts demonstrating that a 10 policy of defendant Wellpath Medical led to a denial of mental health treatment. Accordingly, 11 this claim is dismissed. 12 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 13 of such disability, be excluded from participation in or be denied the benefits of the services, 14 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 15 42 U.S.C. § 12132. To state a claim for monetary relief under Title II of the ADA, a plaintiff 16 must show that (1) he is a qualified individual with a disability; (2) he was intentionally excluded 17 from participation in or otherwise discriminated against with regard to a public entity’s services, 18 programs, or activities, and (3) such intentional exclusion or discrimination was by reason of his 19 disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); Duvall v. County of Kitsap, 20 260 F.3d 1124, 1138 (9th Cir. 2001) (“To recover monetary damages under Title II of the ADA ... 21 a plaintiff must prove intentional discrimination on the part of the defendant.”) (citation omitted). Plaintiff’s allegation that he uses a wheelchair demonstrates that plaintiff is disabled. 22 23 However, plaintiff fails to state a potentially colorable ADA claim because he does not allege that 24 he was excluded from participation in or otherwise discriminated against with regard to a service, 25 program or activity at the jail based on his disability. Plaintiff also fails to allege that defendant 26 Wellpath Medical intentionally discriminated against him based on his disability. For these 27 reasons, plaintiff’s ADA claim is dismissed. 28 //// 5 1 Claim Two 2 In claim two, plaintiff alleges that he has been in custody since March 2023. Plaintiff 3 alleges that he uses a wheelchair due to burns he suffered in a fire. Plaintiff alleges that Dr. 4 Purcel prescribed medication for plaintiff’s stress. Plaintiff alleges that on August 6, 2023, he 5 was released from the safety cell and housed in the medical unit. At that time, defendant Wong 6 abruptly cut off plaintiff’s mental health medication. Defendant Wong told plaintiff that he did 7 not like to give these medications. Plaintiff alleges that he only spoke to defendant Wong for five 8 minutes via laptop. Plaintiff alleges that he filed a grievance complaining about the side effects 9 of some of the medications defendant Wong prescribed, such as enlarged breasts. Plaintiff 10 alleges that the laceration on the back of his leg will not heal due to emotional distress. Plaintiff 11 alleges that he cannot eat and sleep due to emotional distress. 12 13 14 In claim two, as a legal claim, plaintiff alleges a violation of his constitutional right to adequate medical care. The only defendant named in claim two is defendant Wong. Plaintiff’s inadequate 15 medical care claim appears to be based on the allegation that defendant Wong discontinued the 16 mental health medications plaintiff previously took and prescribed new mental health 17 medications. Plaintiff alleges that he complained about the side effects of some of the new 18 mental health medications defendant Wong prescribed, such as enlarged breasts. Plaintiff also 19 may be claiming that the new medications prescribed by defendant Wong do not effectively treat 20 plaintiff’s mental illness. 21 “[C]laims for violations of the right to adequate medical care brought by pretrial detainees 22 against individual defendants under the Fourteenth Amendment must be evaluated under an 23 objective deliberate indifference standard.” Gordon v. Cty. of Orange, 888 F. 3d 1118, 1124-25 24 (9th Cir. 2018). 25 26 27 28 To state a plausible claim for denial of medical (or mental health) care under the Fourteenth Amendment, a pretrial detainee must allege facts showing that: (i) the defendant made an intentional decision regarding the denial of needed medical care; (ii) the denial of needed medical care put plaintiff at a substantial risk of suffering serious harm; (iii) the 6 1 defendant did not take reasonable available measures to abate or reduce the risk of serious harm, even though a reasonable official under the circumstances would have understood the high degree of risk involved- making the consequences of Defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries. 2 3 4 5 Sandoval v. County of San Diego, 985 F.3d 657, 669 (9th Cir. 2021). 6 To satisfy the third element, the plaintiff must show that the defendant’s actions were 7 “objectively unreasonable,” which requires a showing of “more than negligence but less than 8 subjective intent – something akin to reckless disregard.” Id. (quoting Gordon, 888 F. 3d at 9 1125). 10 While plaintiff alleges that defendant Wong prescribed mental health medications that 11 caused plaintiff to suffer uncomfortable side effects, plaintiff does not allege that he told 12 defendant Wong about these side effects. Plaintiff alleges that he complained about the side 13 effects, but he does not specifically allege that he made these complaints to defendant Wong. 14 Plaintiff also does not claim that he told defendant Wong that the new mental health medications 15 did not effectively treat plaintiff’s mental illness. 16 The undersigned cannot determine whether plaintiff states a potentially colorable 17 Fourteenth Amendment claim against defendant Wong based on defendant Wong’s prescription 18 of new mental health medication without knowing whether plaintiff informed defendant Wong of 19 the alleged side effects and that the new medications did not adequately treat his mental illness. 20 Accordingly, this claim against defendant Wong is dismissed. If plaintiff files an amended 21 complaint, he shall address whether he informed defendant Wong of the alleged side effects and 22 that the medication did not treat plaintiff’s mental illness. Plaintiff shall also describe all of the 23 side effects of which he informed defendant Wong. 24 Claim Three 25 In claim three, plaintiff alleges that on August 1, 2023, “I was safety cell out of Solano 26 County Justice Center Classification (Fisher).” Plaintiff alleges that he was laying on the ground, 27 bleeding, with a large laceration. Plaintiff alleges that he was dehydrated, without food and 28 without his wheelchair. Plaintiff alleges that he had to drag himself to and from a hole in the 7 1 floor that was called the restroom. Plaintiff alleges that he was without his mental health 2 medication for two weeks. Plaintiff alleges that he has no memory of what was stated. Plaintiff 3 was still in shock and trauma “over the incident” and without medication. After being released 4 from the safety cell once a bed opened up in the medical unit, plaintiff requested a grievance 5 regarding “the incident.” Plaintiff was told that it was too late to grieve the incident because three 6 days had passed. In claim three, plaintiff alleges that he suffered injuries of green pus draining 7 from his leg and stress on his mental health. 8 9 In claim three, plaintiff alleges violation of the ADA. Plaintiff also alleges that claim three involves disciplinary proceedings. 10 The undersigned finds that plaintiff fails to state a potentially colorable ADA claim 11 because no defendants are named in claim three. If plaintiff files an amended complaint, he shall 12 identify the defendants linked to this ADA claim. 13 The undersigned also finds that plaintiff fails to state a potentially colorable ADA claim in 14 claim three because plaintiff does not allege that he was intentionally excluded from participation 15 in or otherwise discriminated against with regard to a public entity’s services, programs, or 16 activities by reason of his disability. Lovell v. Chandler, supra. If plaintiff files an amended 17 complaint, he shall demonstrate how the conditions described in claim three resulted in plaintiff 18 being excluded from or discriminated against with regard to a public entity’s services, programs 19 or activities by reason of his disability. 20 As stated above, plaintiff claims that the allegations in claim three are related to a 21 disciplinary proceeding. However, claim three contains no allegations related to disciplinary 22 proceedings. Accordingly, the undersigned will not address this matter further. 23 Defendants Solano County and Legal Officer Rison 24 The amended complaint contains no allegations against defendants Solano County and 25 Legal Officer Rison. 26 The Civil Rights Act under which this action was filed provides as follows: 27 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . 8 28 1 . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 2 3 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 4 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 5 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 6 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 7 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 8 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 9 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative 10 act, participates in another’s affirmative acts or omits to perform an act which he is legally 11 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 12 F.2d 740, 743 (9th Cir. 1978). 13 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 14 their employees under a theory of respondeat superior and, therefore, when a named defendant 15 holds a supervisorial position, the causal link between him and the claimed constitutional 16 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 17 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 18 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 19 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 20 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 21 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 22 participation is insufficient). 23 Defendants Solano County and Legal Officer Rison are dismissed because they are not 24 linked to any alleged deprivation. If plaintiff files an amended complaint naming these 25 defendants, plaintiff shall link these defendants to his claims. 26 Conclusion 27 28 For the reasons discussed above, plaintiff’s amended complaint is dismissed with leave to file a second amended complaint. If plaintiff chooses to file a second amended complaint, 9 1 plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation 2 of plaintiff’s constitutional rights. See e.g., West v. Atkins, 487 U.S. 42, 48 (1988). Also, the 3 second amended complaint must allege in specific terms how each named defendant is involved. 4 Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 U.S.C. § 1983 5 unless there is some affirmative link or connection between a defendant’s actions and the claimed 6 deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). 7 Furthermore, vague and conclusory allegations of official participation in civil rights violations 8 are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 9 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 10 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 11 complaint be complete in itself without reference to any prior pleading. This requirement exists 12 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 13 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 14 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 15 omitted)). Once plaintiff files a second amended complaint, the prior complaints no longer serve 16 any function in the case. Therefore, in a second amended complaint, as in an original and first 17 amended complaint, each claim and the involvement of each defendant must be sufficiently 18 alleged. 19 In accordance with the above, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 21 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 22 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 23 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 24 Solano County Sheriff’s Department filed concurrently herewith. 25 3. Plaintiff’s amended complaint is dismissed. 26 4. Within thirty days from the date of this order, plaintiff shall complete the attached 27 28 Notice of Amendment and submit the following documents to the court: a. The completed Notice of Amendment; and 10 1 b. An original of the Second Amended Complaint. 2 Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act, 3 the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended 4 complaint must also bear the docket number assigned to this case and must be labeled “Second 5 Amended Complaint.” 6 Failure to file a second amended complaint in accordance with this order may result in the 7 dismissal of this action. 8 Dated: February 6, 2024 9 10 11 12 13 Kutt2970.14(2) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS KUTTERER, Plaintiff, 12 13 14 v. 17 18 19 NOTICE OF AMENDMENT FACILITY WELLPATH MEDICAL, et al., 15 16 No. 2:23-cv-2970 KJN P Defendants. Plaintiff hereby submits the following document in compliance with the court’s order filed______________. DATED: _____________ Second Amended Complaint 20 21 22 23 24 25 26 27 28 ________________________________ Plaintiff

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