Welch v. UCSD Hospital

Filing 9

ORDER DISMISSING CASE. Court dismisses Plaintiff's First Amended Complaint for failure to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2) and 1915A(b), and grants Plaintiff forty-five (45) days leave from the date of this Order to file an amended complaint. Plaintiff's amended complaint shall be filed by 8/2/2018. Failure to file an amended complaint by this deadline will result in dismissal of the Complaint without prejudice. Signed by Judge Cynthia Bashant on 6/19/2018. (Blank Second Amended 1983 Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11

RICO ANTIONE WELCH,
CDCR #AX-7756

12
13
14

Case No. 16-cv-02884-BAS-BGS
ORDER:

Plaintiff,
v.

(1) DISMISSING FIRST AMENDED
COMPLAINT FOR FAILURE TO
STATE A CLAIM

UCSD HOSPITAL,

15

Defendants.

16

AND

17

(2) GRANTING LEAVE TO AMEND

18
19

I.

PROCEDURAL HISTORY

20

On November 18, 2016, Rico Antione Welch (“Plaintiff”), formerly housed at the

21

George Bailey Detention Center (“GBDC”) in San Diego, California, and proceeding pro

22

se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

23

Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but instead

24

filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF

25

No. 2.) On January 3, 2017, this Court granted Plaintiff’s motion to proceed IFP and

26

simultaneously dismissed the Complaint for failure to state a claim upon which relief could

27

be granted. (ECF No. 4.) Plaintiff was granted forty-five (45) days with leave to file an

28

amended pleading to correct the pleading deficiencies the Court identified. (Id. at 8–9.)
1
16cv2884

1

On May 23, 2018, long after the time period provided by the Court to amend passed,

2

Plaintiff was permitted to file his First Amended Complaint (“FAC”) on the docket by then

3

presiding Judge Benitez. (ECF No. 7.) The FAC states that Plaintiff is currently housed

4

as a state inmate at the Richard J. Donovan Correctional Facility (“RJD”). (Id. at 1.) After

5

Judge Benitez recused from the case on June 4, 2018, the matter was transferred to this

6

Court’s docket. (ECF No. 8.)

7

II.

SUA SPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

8

A.

9

As the Court indicated in its January 3, 2017 Order, “[t]he Court shall review, before

10

docketing, if feasible or, in any event, as soon as practicable after docketing,” complaints

11

filed by all persons proceeding IFP, and by those who are “incarcerated or detained in any

12

facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal

13

law or the terms or conditions of parole, probation, pretrial release, or diversionary

14

program.” (ECF No. 4 at 3 (citing 28 U.S.C. §§ 1915(e)(2) and 1915A(b)).) The Court

15

must sua sponte dismiss complaints, or any portions thereof, which are frivolous,

16

malicious, fail to state a claim, or which seek damages from defendants who are immune.

17

See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th

18

Cir. 2000).

Standard of Review

19

All complaints must contain “a short and plain statement of the claim showing that

20

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

21

not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

22

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

23

citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a

24

complaint states a plausible claim for relief [is] . . . a context-specific task that requires the

25

reviewing court to draw on its judicial experience and common sense.” Id. at 679. The

26

“mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard. Id.;

27

see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “When there are

28

well-pleaded factual allegations, a court should assume their veracity, and then determine
2
16cv2884

1

whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see

2

also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“Under § 1983, when

3

determining whether a complaint states a claim, a court must accept as true all allegations

4

of material fact and must construe those facts in the light most favorable to the plaintiff.”);

5

Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)

6

“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while the

7

court has an “obligation . . . where the petitioner is pro se, particularly in civil rights cases,

8

to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,”

9

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026,

10

1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply essential elements of

11

the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673

12

F.2d 266, 268 (9th Cir. 1982).

13

“Section 1983 creates a private right of action against individuals who, acting under

14

color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

15

263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

16

rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

17

Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks and citations

18

omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a

19

right secured by the Constitution and laws of the United States, and (2) that the deprivation

20

was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

21

698 F.3d 1128, 1138 (9th Cir. 2012).
Plaintiff’s Allegations

22

B.

23

In June 2016, Plaintiff alleges that he “got into an altercation” while housed at the

24

“East Mesa Detention Facility” that resulted in Plaintiff having a “broken jaw.” (FAC at

25

3.) Plaintiff was transported to the UCSD Medical Center where he received surgery and

26

“metal wires” were placed in his mouth. (Id.) Following the surgery, Plaintiff was

27

“transferred back to a medical dorm at the George Bailey Detention Facility.” (Id.) A

28

week later, Plaintiff was “released” from “incarceration.” (Id.) Plaintiff returned to the
3
16cv2884

1

UCSD Medical Center to have the “wires removed.” (Id.) Several “months later,” Plaintiff

2

learned that some “barely noticeable” wire remained in his “gum line” causing him

3

“excruciating pain.” Plaintiff “thought [his] insurance would cover a safe performance of

4

this medical procedure but it did not.” (Id.) Plaintiff claims that he has “unbearable” pain

5

in his mouth and he is able to “only eat certain foods that are soft due to the pain.” (Id.)

6

Plaintiff also alleges that he is only able to “brush [his] teeth in the morning” because of

7

the pain causing “brown stains” on his teeth. (Id.) Plaintiff alleges that he learned of the

8

wire that remained in his mouth when he was incarcerated and housed at the San Diego

9

County Jail again. (See id. at 4.) Plaintiff was sent to “Tri-City Medical Center” to confirm

10

the existence of the “remaining metal” but the “County Jail confirmed” that they could not

11

perform the procedure to remove the metal. (Id.) Plaintiff alleges he submitted “medical

12

requests” while he was housed at the County Jail. (Id.) Plaintiff does allege that the

13

“remaining metal has been removed,” following his sentencing, by medical staff at the

14

“California Rehabilitation Center.” (Id.)

15

C.

16

Plaintiff’s only named defendant is a hospital and he fails to identify any specific

17

individual whom he claims was responsible for the alleged violations of his constitutional

18

rights. Therefore, the Court finds that Plaintiff fails to state a claim upon which Section

19

1983 relief can be granted because he sets forth no individualized allegations of

20

wrongdoing by a specific individual.

Individual Defendants

21

Plaintiff’s FAC contains no factual allegations describing what any individual knew,

22

did, or failed to do, with regard to Plaintiff’s medical needs. Estate of Brooks v. United

23

States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element

24

of a § 1983 claim.”). “The inquiry into causation must be individualized and focus on the

25

duties and responsibilities of each individual defendant whose acts or omissions are alleged

26

to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.

27

1988) (citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976)); Berg v. Kincheloe, 794 F.2d

28

457, 460 (9th Cir. 1986). Without some specific “factual content” that might allow the
4
16cv2884

1

Court to “draw the reasonable inference” that a specific individual may be held personally

2

liable for any unconstitutional conduct directed at Plaintiff, the Court finds his FAC, as

3

currently pleaded, contains allegations which Iqbal makes clear fail to “state a claim to

4

relief that is plausible on its face.” Iqbal, 556 U.S. at 568.

5

D.

6

Plaintiff has also failed to state an Eighth Amendment claim based on a delay or

7

denial of medical care. Only “deliberate indifference to serious medical needs of prisoners

8

constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

9

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation

10

marks omitted). Plaintiff claims in his FAC that unnamed medical personnel at UCSD

11

Hospital failed to properly conduct a surgical procedure to remove the metal wires in his

12

mouth. (See FAC at 3–4.) However, Plaintiff also acknowledges that he was not

13

incarcerated or detained when he underwent this procedure. (See id. at 3.) “The Cruel and

14

Unusual Punishments Clause ‘was designed to protect those convicted of crimes,’” and

15

therefore “the Clause applies ‘only after the State has complied with the constitutional

16

guarantees traditionally associated with criminal prosecutions.’” Whitley v. Albers, 475

17

U.S. 312, 318 (1986) (citing Ingraham v. Wright, 430 U.S. 651, 671 (1977)). Here,

18

Plaintiff was neither a prisoner, nor a detainee at the time he returned to undergo the

19

procedure he claims was inadequate at UCSD Hospital and thus, neither the Eighth or

20

Fourteenth Amendment apply to Plaintiff’s claims.

Inadequate medical care

21

To the extent that Plaintiff suggests he was denied adequate medical treatment when

22

he was later housed at the San Diego County Jail, Plaintiff must provide specific factual

23

allegations to support that claim which show a violation of constitutional rights. The

24

allegations in the FAC include negligence and medical malpractice, but a Section 1983

25

claim cannot sound merely in negligence. Farmer, 511 U.S. at 835 (holding that a mere

26

negligent failure to protect an inmate from harm is not actionable under § 1983); Toguchi

27

v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in diagnosing or treating

28

a medical condition, without more, does not violate a prisoner’s Eighth Amendment
5
16cv2884

1

rights.”). Even if Plaintiff were to claim that his constitutional rights were violated when

2

he was housed at the County Jail, the FAC lacks any specific allegations that any San Diego

3

County Jail individuals acted with deliberate indifference to his plight by “knowing of and

4

disregarding an excessive risk to his health and safety.” Farmer v. Brennan, 511 U.S. 825,

5

837 (1994); Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557. If Plaintiff wishes to

6

proceed with a claim for deliberate indifference to his serious medical needs based on a

7

lack of adequate medical care, he must identify the individuals whom he alleges were

8

involved and provide sufficient allegations of their knowledge. The Court will provide

9

Plaintiff with a final opportunity to address the pleading deficiencies discussed in this

10

Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik

11

v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

12

III.

CONLUSION & ORDER

13

For the foregoing reasons, the Court hereby:

14

1.

DISMISSES Plaintiff’s FAC for failure to state a claim upon which relief

15

may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS him

16

forty-five (45) days leave from the date of this Order in which to file an amended complaint

17

which cures all the deficiencies of pleading noted. Plaintiff’s amended complaint must be

18

complete in itself without reference to his original pleading. Defendants not named and

19

any claims not re-alleged in the amended complaint will be considered waived. See S.D.

20

Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

21

1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

22

Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave

23

to amend which are not re-alleged in an amended pleading may be “considered waived if

24

not repled.”).

25

Plaintiff’s amended complaint shall be filed no later than August 2, 2018.

26

This deadline will be strictly enforced by the Court given the length of time in which this

27

case has been pending since its initial filing without proceeding past the pleading stage and

28

Plaintiff’s over year-long delay in amending the original complaint after notice of pleading
6
16cv2884

1

deficiencies. Failure to file an amended complaint by this deadline will result in dismissal

2

of the Complaint without prejudice.

3

2.

DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a

4

blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983”

5

for his use in amending.

6

IT IS SO ORDERED.

7
8

DATED: June 19, 2018

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
16cv2884