Cooper v. Allison et a.

Opinion

1 2 3 4 5 6 7 10 KEN COOPER, 11 Case No. 20-09415 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL v. AND DISMISSAL WITH LEAVE TO

14 KATHLEEN ALLISON, et al., 15 Defendants.

17 18 Plaintiff filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 19 against the officials and employees at San Quentin State Prison (“SQSP”) where he is 20 currently incarcerated, officials of the California Department of Corrections and 21 Rehabilitation (“CDCR”), and officials at another prison. Dkt. No. 4. Subsequently, 22 Plaintiff filed an amended complaint, Dkt. No. 9, which the Court deems to be the 23 operative complaint in this matter. Fed. R. Civ. P. 15(a)(1). Plaintiff’s motion for leave to 24 proceed in forma pauperis shall be addressed in a separate order. 25 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 The Court will review Plaintiff’s allegations with the following legal principles in 13 mind. 14 The Constitution does not mandate comfortable prisons, but neither does it permit 15 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a 16 prisoner receives in prison and the conditions under which he is confined are subject to 17 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). 18 The Amendment imposes duties on these officials, who must provide all prisoners with the 19 basic necessities of life such as food, clothing, shelter, sanitation, medical care and 20 personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't of 21 Social Servs., 489 U.S. 189, 199-200 (1989). A prison official violates the Eighth 22 Amendment when two requirements are met: (1) the deprivation alleged must be, 23 objectively, sufficiently serious, Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 24 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, 25 id. (citing Wilson, 501 U.S. at 297). 26 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 1 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 2 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 3 banc). A determination of a “deliberate indifference” claim involves an examination of 4 two elements: the seriousness of the prisoner’s medical need and the nature of the 5 defendant’s response to that need. Id. at 1059. 6 A serious medical need exists if the failure to treat a prisoner’s condition could 7 result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. 8 The existence of an injury that a reasonable doctor or patient would find important and 9 worthy of comment or treatment, the presence of a medical condition that significantly 10 affects an individual’s daily activities, or the existence of chronic and substantial pain are 11 examples of indications that a prisoner has a serious need for medical treatment. Id. at 12 1059-60. 13 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 14 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 15 to abate it. Farmer at 837. The prison official must not only “be aware of facts from 16 which the inference could be drawn that a substantial risk of serious harm exists,” but 17 “must also draw the inference.” Id. If a prison official should have been aware of the risk, 18 but did not actually know, the official has not violated the Eighth Amendment, no matter 19 how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 20 In a § 1983 or a Bivens action – where employers and supervisors are not made to 21 automatically answer for the torts of their employees and subordinates – the term 22 ‘supervisory liability’ is a misnomer. Absent vicarious liability, each government official, 23 his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 24 U.S. at 677 (finding under Twombly, 550 U.S. at 544, and Rule 8 of the Federal Rules of 25 Civil Procedure, that complainant-detainee in a Bivens action failed to plead sufficient 26 facts “plausibly showing” that top federal officials “purposely adopted a policy of 1 religion, or national origin” over more likely and non-discriminatory explanations). 2 A supervisor may be liable under § 1983 upon a showing of (1) personal 3 involvement in the constitutional deprivation or (2) a sufficient causal connection between 4 the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 5 678 F.3d 991, 1003-04 (9th Cir. 2012). Even if a supervisory official is not directly 6 involved in the allegedly unconstitutional conduct, “[a] supervisor can be liable in this 7 individual capacity for his own culpable action or inaction in the training, supervision, or 8 control of his subordinates; for his acquiescence in the constitutional deprivation; or for 9 conduct that showed a reckless or callous indifference to the rights of others.” Starr v. 10 Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (citation omitted). The claim that a supervisory 11 official “knew of unconstitutional conditions and ‘culpable actions of his subordinates’ but 12 failed to act amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’ 13 and is ‘sufficient to state a claim of supervisory liability.’” Keates v. Koile, 883 F.3d 1228, 14 1243 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1208) (finding that conclusory allegations 15 that supervisor promulgated unconstitutional procedures which authorized unconstitutional 16 conduct of subordinates do not suffice to state a claim of supervisory liability). 17 A. Factual Allegations 18 Plaintiff is suing for prison officials’ allegedly inadequate response to the COVID- 19 19 pandemic, following Governor Gavin Newsom’s declaration of a state of emergency on 20 March 4, 2020. Dkt. No. 9-1 at 5. Plaintiff names the following defendants: Kathleen 21 Allison, Director of the CDCR; Ralph Diaz, Secretary of the CDCR; Ron Davis, Associate 22 Director of Reception Centers for the CDCR; Ron Broomfield, Acting Warden of SQSP; 23 Clark Kelso, Federal Receiver appointed by the Plata/Coleman Court; Dr. A. Pachynski, 24 SQSP’s Chief Medical Officer; Dr. L. Escobell, the Chief Medical Officer (“CMO”) at the 25 California Institution for Men in Chino (“CIM”); R. Steven Tharratt, CDCR’s Director of 26 Medical Services; Clarence Cryer, SQSP’s Healthcare Chief Executive Director; Dean 1 Corrections Health Care Services (“CCHCS”). Dkt. No. 9-1 at 2-4. 2 Plaintiff first alleges that Warden R. Broomfield, Director Cryer, and Dr. Pachynski 3 failed to provide “personal protective equipment” early in the pandemic, as it was not until 4 late April 2020 that masks were provided to SQSP inmates. Dkt. No. 9-1 at 5. 5 Plaintiff next alleges that on May 27, 2020, the “department” committed to 6 processing transfers within the prisons, presumably to lower risk of infection in 7 overcrowded facilities, by the end of the month. Dkt. No. 91- at 5-6. Plaintiff claims that 8 CIM was pressured by Dr. Bick and “management” to “do whatever is necessary to 9 execute the transfers of vulnerable high risk i/m’s during this time frame.” Id. at 6. 10 Plaintiff claims Dr. Bick was responsible for all transfer and testing protocols. Id. at 7. 11 Plaintiff claims Mr. Kelso was involved in the transfer of 189 inmates with pre-existing 12 medical conditions who were deemed vulnerable to infection from CIM in Chino to SQSP 13 and another prison in Corcoran, both of which were “infection free.” Id. at 6. Secretary 14 Diaz, Director Allison, and Mr. Davis approved the transfer. Id. Plaintiff claims that 15 transferring such high risk inmates to SQSP was not a reasonable option because SQSP has 16 exceedingly poor ventilation, extraordinary close quarters, and inadequate sanitation due to 17 its “antiquated infrastructure and overcrowding.” Id. at 6. Furthermore, Plaintiff claims 18 that despite Dr. Bick’s directions, Dr. Escobell and Mr. Tharratt did not have all the 19 inmates scheduled for the transfer (re)tested before the transfers began, and that Warden 20 Borders approved the transfer of the untested inmates. Id. at 6-7, 8. Plaintiff also claims 21 that the transfer itself did not comport with social distancing guidelines such that inmates 22 likely became infected during transit. Id. at 9. 23 As part of the transfer order discussed above, 122 inmates from CIM arrived at 24 SQSP on May 30, 2020. Dkt. No. 91- at 10. Plaintiff claims that SQSP nursing staff 25 noticed two of the inmates had symptoms for COVID-19; the two inmates were placed in 26 cells with open doors, allowing air to flow in-and-out. Id. Plaintiff claims that on June 1, 1 with Warden Broomfield, Director Cryer, and Dr. Pachynski, informing them that safety 2 precautions needed to be in place, e.g., the sequestering of the transferred inmates from the 3 SQSP population, masks worn, and restricted movements of exposed staff, etc.. Id. at 10, 4 13. However, Defendants chose not to implement those basic safety measures and 5 informed Dr. Willis that he lacked authority to mandate measures to state run prisons. Id. 6 at 10. The transferred inmates were not tested until they had already been at SQSP for at 7 least six days, by which time the virus had already begun to spread. Id. at 10-11. 8 Plaintiff relies on an “Urgent Memo” authored by experts at the University of San 9 Francisco (“UCSF”), dated June 15, 2020, which “assigned central importance to the 10 prompt reduction of the population of SQ by at least 50% of current capacity.” Id. at 12. 11 Plaintiff also points to an order by Judge Tigar under Plata, stating that the CDCR’s only 12 option for minimizing the harm of the virus, particularly to elderly and otherwise 13 medically vulnerable inmates, was to dramatically reduce the population at SQSP. Id. at 14 11. Plaintiff claims Defendants still refused to follow the recommendation of the Urgent 15 Memo and Judge Tigar. Id. at 13. 16 Plaintiff claims that on June 25, 2020, he and his cellmate were tested for COVID- 17 19. Dkt. No. 9-1 at 11. His cellmate was informed several days later that he tested 18 positive for the virus while Plaintiff tested negative. Id. However, Plaintiff was forced to 19 remain in the same cell with his infected inmate, as well as required to shower with other 20 inmates who had tested positive. Id. Plaintiff claims he tested positive for the virus on 21 July 7, 2020. Id. Plaintiff claims that he continues to experience adverse effects from the 22 COVID-19 virus due to “numerous other etiological ailments, e.g., obesity, i.e., over 40 23 BMI, prior TB and Hepatitis B and C, extreme muscle pain correlative with worn 4th and 24 5th vertebrae in the neck region, further exacerbated by constant fatigue.” Id. 25 Plaintiff claims that on October 20, 2020, the First District Court held that the 26 CDCR acted with deliberate indifference to the risk of substantial harm to elderly and 1 experts. Id. at 12. 2 Lastly, Plaintiff mentions a planned transfer of 50 inmates from North Kern State 3 Prison which was approved by Mr. Davis despite some having tested positive for Covid- 4 19. Id. at 12. Plaintiff claims that Correctional Officer S. Beaton at “Receiving and 5 Release” refused the transfer stating, “I don’t want to be on that lawsuit.” Id. Plaintiff 6 does not allege that this transfer actually took place and what resulted from it. 7 Based on the foregoing, Plaintiff seeks declaratory relief, injunctive relief to 8 provide him with medical and dental care, and damages. Dkt. No. 9-1 at 14-15. 9 B. Legal Claims 10 Plaintiff is suing each defendant individually and “in his [or her] official capacity.” 11 Dkt. No. 9-1 at 4. The Eleventh Amendment to the U.S. Constitution bars a person from 12 suing a state in federal court without the state’s consent. See Pennhurst State Sch. & Hosp. 13 v. Halderman, 465 U.S. 89, 98-100 (1984). The U.S. Supreme Court has held that state 14 officials acting in their official capacities are not “persons” under Section 1983 because “a 15 suit against a state official in his or her official capacity is not a suit against the official but 16 rather is a suit against the official’s office.” See Will v. Mich. Dep’t of State Police, 491 17 U.S. 58, 71 (1989). Thus, such a suit is therefore no different from a suit against the state 18 itself. Id. Accordingly, the Eleventh Amendment bars Plaintiff’s claims for monetary 19 relief to the extent that they are based on acts by Defendants in their official capacities. 20 See id. Such claims for damages must be dismissed. 21 With respect to the lack of certain safety precautions at the start of the pandemic in 22 March 2020, such allegations indicate nothing more than negligence, especially where 23 SQSP had no known cases of COVID-19 at the time. See supra at 5. Neither negligence 24 nor gross negligence is actionable under § 1983 in the prison context. See Farmer v. 25 Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood v. Housewright, 900 F.2d 1332, 1334 26 (9th Cir. 1990) (gross negligence insufficient to state claim for denial of medical needs to 1 regarding the transfer of inmates from North Kern Prison fails to state a claim as there is 2 no indication that the transfer actually took place and Plaintiff fails to allege how this 3 incident resulted in the violation of his constitutional rights. 4 Based on the remaining allegations, the amended complaint states an Eighth 5 Amendment deliberate indifference claim against unsafe conditions at SQSP. See Farmer 6 v. Brennan, 511 U.S. 825, 832, 834 (1994). This claim shall proceed against the named 7 individuals who were involved in the decision to transfer CIM based on the following 8 allegations: (1) inmates who were already exposed to COVID-19 were not tested prior to 9 their transfer out of CIM; (2) these potentially infected inmates were transported to SQSP 10 in conditions that did not comply with recommended social distancing protocols, 11 increasing the likelihood of further spread; (3) CIM inmates were exposed to the SQSP 12 population without additional safety protocols in place; and (4) the failure by SQSP to 13 properly quarantine infected inmates during the outbreak resulted in Plaintiff contracting 14 COVID-19 and suffering its ill effects within one month after the transfer. 15 On the other hand, Plaintiff requests dental and optometry care as a form of relief 16 but fails to explain how such medical needs are tied to his Eighth Amendment claim 17 regarding COVID-19. Dkt. No. 9-1 at 15. If he wishes to assert an Eighth Amendment 18 claim for inadequate dental and optometric care, he must explain what objectively serious 19 conditions he suffered from that required dental and optometric care and describe how 20 each defendant involved knew that he was facing a substantial risk of serious harm and 21 disregarded that risk by failing to take reasonable steps to abate it. See supra at 2-3; 22 Estelle, 429 U.S. at 104; McGuckin, 974 F.2d at 1059. However, if such a claim is not 23 related to his COVID-19 claim, he must file the denial of optometric and dental care needs 24 claim in a separate action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 25 (unrelated claims against different defendants belong in different suits, and prisoners must 26 pay the required filing fees under the PRLA). 2 For the reasons state above, the Court orders as follows: 3 1. Plaintiff’s claim for damages based on Defendants’ actions in their official 4 capacity is DISMISSED as barred by the Eleventh Amendment. The claim for damages 5 against each in his individual capacity may proceed. Plaintiff’s negligence claim for 6 failure to provide masks at the start of the pandemic is DISMISSED for a failure to state a 7 claim. 8 2. The claim for inadequate dental and optometric care is DISMISSED with 9 leave to amend. Within twenty-eight (28) days of the date this order is filed; Plaintiff 10 shall file a second amended complaint to correct the deficiencies described above. The 11 second amended complaint must include the caption and civil case number used in this 12 order, Case No. C 20-09415 BLF (PR), and the words “SECOND AMENDED 13 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer 14 all the questions on the form in order for the action to proceed. The second amended 15 complaint supersedes the original and amended complaints, these filings being treated 16 thereafter as non-existent. Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th 17 Cir. 2015). Consequently, claims not included in a second amended complaint are no 18 longer claims and defendants not named in a second amended complaint are no longer 19 defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 20 In the alternative, Plaintiff may file notice in the same time provided above that he 21 wishes to proceed solely on the Eighth Amendment failure to protect from unsafe 22 conditions claim, and strike all other claims from this action. The Court will then order the 23 matter served on all named Defendants. 24 4. Failure to respond in accordance with this order by filing a second 25 amended complaint in the time provided will result in this matter proceeding on the 26 cognizable Eighth Amendment claim discussed above and all other claims being 1 5. The Clerk shall enclose two copies of the court’s form complaint with a copy 2 of this order to Plaintiff. 4 || Dated: _ May 4, 2021 heh Lous hormen) 5 BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 11 12

16 Z 18 19 20 21 22 23 24 25 Order of Partial Dism. and Dism. with Leave to Amend PRO-SE\BLF\CR.20\09415Cooper_dwlta 26 27