Opinion
3:22-cv-00357-AR
01-05-2023
JASON BOMPANE, Plaintiff, v. WELLPATH LLC, SHARON BROWN, and NANCY RONAN, Defendants.
FINDINGS AND RECOMMENDATION
ARMISTEAD, MAGISTRATE JUDGE
Plaintiff Jason Bompane, an adult in the custody of Columbia County Jail, brings this action under Oregon common law and 42 U.S.C. § 1983. In Claims 1 and 2, Bompane alleges that Wellpath LLC, a private contractor providing medical services at Columbia County Jail, Wellpath employee Sharon Brown, and nurse practitioner Nancy Ronan were negligent in their treatment of his nerve pain. (Am. Compl. ¶¶ 1, 5-8, ECF No. 1.) In Claim 3, Bompane alleges that Brown and Ronan violated his Eighth Amendment right to be free of cruel and unusual punishment by acting with deliberate indifference to his medical needs. (Id. ¶ 7.)
Though Bompane alleges that Wellpath is vicariously liable for the acts of Ronan, he does not allege whether Ronan is an employee of Wellpath or how she is otherwise connected to Wellpath.
Defendants, arguing that Bompane fails to state plausible claims for relief, move to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. Dismiss at 2, ECF No. 12.) Because Bompane's allegations are conclusory, the court recommends granting defendants' motion.
BACKGROUND
Bompane is an adult-in-custody (AIC) at Columbia County Jail. (Am. Compl. ¶ 1.) He suffers from “documented nerve pain related to cervical spine injuries,” for which he has been prescribed Gabapentin. (See id. ¶¶ 6-7.) Wellpath LLC is a private contractor providing medical services at the jail. (Id. ¶ 2.) Brown is a Wellpath employee. (Id. ¶ 3.) Ronan is a nurse practitioner who has provided care to Bompane since February 7, 2020. (Id. ¶ 4.)
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must include allegations sufficiently detailed “to raise a right to relief above a speculative level” and render each pleaded claim “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp, 550 U.S. at 556)). The complaint “may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In evaluating the sufficiency of a complaint, the court accepts as true all well-pleaded factual allegations and construes them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). However, the court need not credit a plaintiff's legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at 678-79.
DISCUSSION
Defendants argue that Bompane fails to allege plausible negligence and § 1983 claims because his allegations are conclusory, vague, and do not provide notice of the specific misconduct alleged against each defendant. (Defs.' Mot. Dismiss at 5.) Bompane contends that he pleads sufficient facts to state plausible claims for relief. (Pl.'s Resp. Mot. Dismiss, ECF No. 14.) As explained below, the court agrees with defendants.
Bompane also asserts that defendants failed to satisfy the conferral requirement of LR 7-1 before moving to dismiss. (Pl.'s Resp. at 1.) After reviewing his argument and the declaration submitted by defendants, the court finds the parties' conferral adequate and declines to decide the motion on that basis. (See Decl. of Eric Werner, ECF No. 16.)
A. Negligence Claims (Claim 1 and Claim 2)
Oregon's approach to negligence law has evolved over time. “Traditionally, the elements of common-law negligence required a plaintiff to plead and prove that the ‘defendant owed [the plaintiff] a duty, that [the] defendant breached that duty, and that the breach was the cause-in-fact of some legally cognizable damage to [the] plaintiff.” Chapman v. Mayfield, 358 Or. 196, 205 (2015) (quoting Brennan v. City of Eugene, 285 Or. 401, 405 (1979)). However, in 1987, the Oregon Supreme Court explained in Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 10 (1987), that the traditional duty-breach analysis for Oregon negligence would be subsumed under the concept of general foreseeability. Chapman, 358 Or. at 205.
Under Fazzolari, a traditional application of duty remains relevant if the plaintiff “invoke[s] a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty.” Id. at 17. Conversely, in cases where the parties do not enjoy a traditional duty relationship, the issue of liability “depends on whether [the defendant's conduct] unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari, 303 Or. at 17. “Despite that shift, causation-in-fact and the occurrence of legally cognizable harm (damage) remain as elements of any common-law negligence claim.” Chapman, 358 Or. at 205. Thus, “when a claim for common-law negligence is premised on general principles of foreseeability, the plaintiff must plead and prove that the defendant's conduct created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused harm to the plaintiff.” Id. “Threadbare recitals [of negligence elements], supported by mere conclusory statements, do not suffice.” Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
In his amended complaint, Bompane alleges that Brown and Ronan were negligent-and that Wellpath was vicariously liable for their negligence-by failing to administer prescribed Gabapentin, failing to provide timely referrals, diagnostic tests, and treatment for his symptoms of “numbness, pain and weakness,” and failing to accurately document symptoms related to his cervical spine injuries since February 2020. (Am. Compl. ¶¶ 5-7.) The court cannot determine from those allegations the theory of negligence on which Bompane intends to rely. Regardless of his intended theory, however, Bompane fails to state plausible claims for negligence. Bompane's allegations-which lack even threadbare recitals of negligence elements-are conclusory and thus do not satisfy the Iqbal and Twombly standard. Even taking as true the few facts alleged in the complaint, which primarily concern the relationship of the parties, the court cannot reasonably infer that defendants' conduct fell below the applicable standard of care within the period alleged, that Bompane suffered a cognizable harm, and that defendants' conduct was the cause-in-fact of such harm. Thus, Bompane fails to state plausible claims for medical negligence against Brown and Ronan and for vicarious liability against Wellpath. Claim 1 and Claim 2 should be dismissed.
The factual allegations about those relationships are sparse.
B. Section 1983 Claim (Claim 3)
“Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). To state a § 1983 claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment, a plaintiff must allege facts plausibly showing that defendants “(a) were subjectively aware of the serious medical need and (b) failed to adequately respond.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (emphasis in original). The indifference to a prisoner's medical needs must be substantial. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”).
From the amended complaint, it is unclear to the court whether Bompane is in the custody of Columbia County Jail as a pretrial detainee or an inmate upon conviction. Bompane's status is relevant, as it affects the authority under which his claim properly arises. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (explaining that a claim of inadequate medical care brought by a pretrial detainee arises under the Fourteenth Amendment and is governed by an “objective deliberate indifference standard”).
In his § 1983 claim, Bompane alleges that Brown and Ronan were deliberately indifferent to his medical needs by “consciously denying [him] necessary medical treatment as alleged above, including withholding Gabapentin, delaying referrals to orthopedic specialists, and failing to document neurological deficits including nerve pain, weakness, and numbness in his upper extremities.” (Am. Comp. ¶ 8 (emphasis added).)
Bompane's allegations are conclusory and thus fail to state a plausible claim for deliberate indifference under the Eighth Amendment. Jones v. Community Redevelopment Agency of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984) (vague and conclusory allegations unsupported by facts are not sufficient to state a § 1983 claim). To the extent that Bompane incorporates his negligence allegations into his deliberate indifference claim, the court notes that “[m]ere ‘indifference,' ‘negligence,' or ‘medical malpractice' will not support [that] cause of action.” Broughton, 622 F.2d at 460. Notably, Bompane's complaint also lacks factual allegations depicting how Brown and Ronan were each personally involved in the alleged deprivation of his Eighth Amendment right. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (Under § 1983, a “plaintiff must allege facts, not simply conclusions, that show [each defendant] was personally involved in the deprivation of his civil rights.”). In light of those deficiencies, Claim 3 should be dismissed.
C. Leave to Amend
Defendants request that Bompane's claims be dismissed with prejudice, but they offer no argument about the alleged futility of amendment. (Defs.' Mot. Dismiss at 2.) Accordingly, the court declines to grant defendants' request and recommends that Bompane's amended complaint be dismissed with leave to amend to cure the deficiencies identified above.
CONCLUSION
As explained, the court recommends granting defendants' motion to dismiss. (ECF No. 12.) Bompane's amended complaint should be dismissed with leave to amend within 30 days of a final order adopting this F&R.
SCHEDULING ORDER
The Findings & Recommendation will be referred to a District Judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings & Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings & Recommendation will go under advisement.