IN RE CIM-SQ TRANSFER CASES

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 IN RE CIM-SQ TRANSFER CASES Case No. 5:20-cv-06326-EJD

9 ORDER OF SERVICE This Document Relates To: 10

24-cv-04253-EJD; Baylis v. State of 11 California et al. 12

13 INTRODUCTION 14 Plaintiff, a California prisoner, filed a pro se civil rights action in state court. Plaintiff 15 alleged that defendants violated his constitutional rights by transferring over 100 inmates, some of 16 whom were infected with COVID-19, from the California Institution for Men (CIM) to San 17 Quentin State Prison (SQSP)1 in May 2020. Dkt. No. 1 at 18-19. The case is now before the Court 18 for screening pursuant to 28 U.S.C. § 1915A(a), and service of the complaint on defendants is 19 ordered. Plaintiff will be granted leave to proceed in forma pauperis by separate order. 20 This case has been consolidated with cases in this district related to the 2020 prisoner 21 transfer and related to the first case filed, No. 5:20-cv-06326-EJD, which now has the caption “In 22 Re CIM-SQ Transfer Cases.” Pro se prisoner cases that are part of the consolidated matter are 23 stayed except for the purposes of service. Service shall therefore proceed in plaintiff’s case as 24 ordered below, but the case will remain stayed for all other purposes. The docket for Case No. 24- 25 cv-04253-EJD and all other individual dockets have been closed. If plaintiff wishes to file any 26 motions, he must file them in Case No. 5:20-cv-06326-EJD and include his original case number, 27 1 No. 24-cv-04253, on the left side of the heading. 2 STANDARD OF REVIEW 3 Federal courts must engage in a preliminary screening of cases in which prisoners seek 4 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 5 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 6 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 7 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 8 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 9 F.2d 696, 699 (9th Cir. 1990). 10 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 11 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 12 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 13 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 14 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 15 formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must 16 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 17 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 18 state a claim for relief that is plausible on its face.” Id. at 1974. 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 20 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 21 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 22 42, 48 (1988). 23 If a court dismisses a complaint for failure to state a claim, it should “freely give 24 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 25 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 26 repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 27 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 1 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 2 LEGAL CLAIMS 3 Plaintiff’s complaint refers to an attached complaint in the name of another CDCR prisoner 4 James Smith. Dkt. No. 1 at 4. Plaintiff also includes his own positive test results for COVID-19 5 dated June 29, 2020. Id. at 49. The Court construes plaintiff’s claim to be that he contracted 6 COVID-19 as a result of the same conduct as alleged in plaintiff Smith’s case as described below. 7 The Court will not incorporate the portions of the attached Smith complaint that refer to plaintiff 8 Smith’s personal characteristics, including his asthma, PTSD, age, and race, nor the accompanying 9 Rehabilitation Act claim. Id. at 43-44. If plaintiff wishes to amend his complaint to include a 10 Rehabilitation Act claim, he may file an amended complaint describing his own disabilities within 11 the time provided at the end of this Order. 12 Defendants were involved in the decision to transfer over 100 prisoners, some of whom 13 were infected with COVID-19, from the CIM to SQSP in May 2020. Dkt. No. 1 at 18-19. 14 Defendants then failed to take adequate safety precautions before, during, and after the transfer, 15 including failing to test the transferring prisoners or screen them for symptoms at the appropriate 16 times, failing to implement distancing measures on the transfer buses, and failing to test and 17 isolate the transferred prisoners upon arrival. Id at 19-20. Over the course of three weeks, SQSP 18 went from having no cases of COVID to 499 cases, and by late July, SQSP had more than 2,000 19 prisoner cases and 26 prisoners had died from the virus. Id. at 19, 23. Then defendants failed to 20 follow the recommendations of a Marin County public health official to mitigate spread, and that 21 there was “a grave lack of personal protective equipment and masks at San Quentin . . . even 22 though masks and PPE were easily obtainable.” Id. at 20-21. Defendants failed to follow the 23 recommendations of a group of public health experts, who toured SQSP at the request of federal 24 receiver Clark Kelso, to release or transfer prisoners and avoid reliance on punitive housing to 25 quarantine the sick. Id. at 21-22. Further, defendants refused offers by the Innovative Genomics 26 Institute at Berkeley and by a research laboratory at UCSF Medical Center to provide free COVID 27 testing. Id. at 22. 1 Plaintiff names the following defendants: 2 1. The State of California 3 2. California Department of Corrections and Rehabilitation (“CDCR”) 4 3. SQSP 5 4. Ralph Diaz, former secretary of CDCR 6 5. Estate of Robert S. Tharratt, former Medical Director of CDCR 7 6. Ronald Davis, Warden of SQSP 8 7. Ronald Broomfield, Acting Warden of SQSP 9 8. Clarence Cryer, Chief Executive Officer of SQSP 10 9. Alison Pachynski, Chief Medical Executive of SQSP 11 10. Shannon Garrigan, Chief Physician and Surgeon of SQSP 12 11. Louie Escobell, Health Care Chief Executive Officer of CIM 13 12. Muhammad Farooq, Chief Medical Executive for CIM 14 13. Kirk Torres, Chief Physician and Surgeon for CIM 15 14. Does 1 through 20. 16 Dkt. No. 1 at 4. Plaintiff sues all defendants who are people in their individual capacities. Id. 17 Plaintiff alleges that defendants Diaz, Estate of Tharratt, Davis, Broomfield, Cryer, 18 Pachynski, Garrigan, Escobell, Farooq, Torres, and Does 1-20 violated his rights under the Eighth 19 Amendment by being deliberately indifferent, either directly or via supervisory liability, to his 20 medical and safety needs, and violated his rights under California Civil Code section 52.1. ECF 1 21 at 34-41. Plaintiff also brings a negligent infliction of emotional distress claim against those 22 defendants. Id. at 42. 23 Plaintiff seeks declaratory relief, compensatory damages, punitive damages, and costs. Id. 24 at 43. 25 ANALYSIS 26 A. Eighth Amendment Claim 27 The allegations regarding the May 2020 transfer of CIM inmates into SQSP state 1 Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres. Farmer v. Brennan, 511 2 U.S. 825, 837 (1994) (prison official is deliberately indifferent if he or she knows that prisoner 3 faces substantial risk of serious harm and disregards that risk by failing to take reasonable steps to 4 abate it). 5 B. Bane Act 6 California Civil Code section 52.1, the Bane Act, “protects individuals from conduct aimed 7 at interfering with rights that are secured by federal or state law, where the interference is carried 8 out ‘by threats, intimidation or coercion’.” Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 9 (9th Cir. 2018) (quoting Venegas v. County of Los Angeles, 153 Cal.App.4th 1230, 1239 (2007)). 10 A defendant must have “specific intent” to violate the plaintiff’s rights. “But it is not necessary 11 for the defendants to have been ‘thinking in constitutional or legal terms at the time of the 12 incidents, because a reckless disregard for a person’s constitutional rights is evidence of a specific 13 intent to deprive that person of those rights’.” Id. at 1035, 1045 (quoting United States v. Reese, 2 14 F.3d 870, 885 (9th Cir. 1993)) (triable issue as to specific intent where the defendant deputy 15 sheriffs, responding to a 911 call about a gunshot and a man with a knife, fired at the plaintiff as 16 he answered the door with a knife). Here, liberally construed, plaintiff has stated a cognizable 17 claim that defendants acted with reckless disregard for his constitutional rights, meeting the 18 elements of the Bane Act. 19 C. Negligent Infliction of Emotional Distress 20 Plaintiff has also stated a cognizable state-law claim for negligent infliction of emotional 21 distress. Under California law, “there is no independent tort of negligent infliction of emotional 22 distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993). A negligent 23 infliction of emotional distress claim is only available where the “defendant has assumed a duty to 24 plaintiff in which the emotional condition of the plaintiff is an object,” and “recovery is available 25 only if the emotional distress arises the defendant’s breach of some other legal duty and the 26 emotional distress is proximately caused by that breach of duty.” Id. at 985. Here, defendants 27 have a duty to plaintiff as a prisoner under state tort law. California “[c]ase law holds that ‘there is 1 latter’.” Lawson v. Superior Ct., 180 Cal. App. 4th 1372, 1389–90 (2010) (quoting Giraldo v. 2 Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 250 (2008)). Plaintiff alleges 3 that the emotional distress arose out of defendants’ breach of their duty to him by exposing him to 4 COVID-19. 5 D. Rehabilitation Act Claim and Remaining Defendants 6 Because plaintiff has copied or incorporated plaintiff Smith’s complaint and has not 7 included any personal information about his own disabilities, he has not stated a Rehabilitation 8 Act claim action against defendants State of California, CDCR, or SQSP. This claim and these 9 defendants will therefore be dismissed. 10 CONCLUSION 11 1. Plaintiff may amend his complaint within 28 days of the date of this Order to 12 include a Rehabilitation Act claim explaining his own disabilities, if applicable. If plaintiff does 13 not file an amended complaint within that time, his complaint will proceed only on his other 14 claims as described below. If he chooses to file an amended complaint, he must use the words 15 FIRST AMENDED COMPLAINT and list case number 5:20-cv-06326 on the right side of the 16 heading and his name and case number 24-cv-04253-EJD on the left side of the heading, as in this 17 Order. 18 2. Defendants the State of California, CDCR, and SQSP are DISMISSED. 19 3. Plaintiff has stated the following cognizable claims against defendants Diaz, Estate 20 of Tharratt, Davis, Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres: 21 violation of the Eighth Amendment by deliberate indifference to his health and safety needs; 22 California Civil Code section 52.1; and negligent infliction of emotional distress. 23 4. The Court orders that service on the following defendants shall proceed under the 24 California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for civil 25 rights cases from prisoners in the CDCR’s custody: 26 a. Ralph Diaz, former secretary of CDR 27 b. Estate of Robert S. Tharratt, former Medical Director of CDR 1 d. Ronald Broomfield, Acting Warden of SQSP 2 e. Clarence Cryer, Chief Executive Officer of SQSP 3 f. Alison Pachynski, Chief Medical Executive of SQSP 4 g. Shannon Garrigan, Chief Physician and Surgeon of SQSP 5 h. Louie Escobell, Health Care Chief Executive Officer of CIM 6 i. Muhammad Farooq, Chief Medical Executive for CIM 7 j. Kirk Torres, Chief Physician and Surgeon for CIM 8 In accordance with the program, the clerk is directed to serve on the CDCR via email the 9 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 10 of E-Service Waiver form, and a summons. The clerk also shall serve a copy of this order on the 11 plaintiff. 12 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 13 provide the court a completed CDCR Report of E-Service Waiver advising the court which 14 defendant(s) listed in this order will be waiving service of process without the need for service by 15 the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR 16 also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney 17 General’s Office which, within 21 days, shall file with the Court a waiver of service of process for 18 the defendant(s) who are waiving service. 19 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 20 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 21 USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies 22 of this order, the summons and the operative complaint for service upon each defendant who has 23 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 24 Service Waiver. 25 1. All defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 26 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 27 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on ] cost of such service unless good cause can be shown for their failure to sign and return the waiver 2 || form. 3 2. All communications by plaintiff with the Court must be served on defendants’ 4 || counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 5 any document which a party files but fails to send a copy of to his opponent. Until defendants’ 6 || counsel has been designated, plaintiff may mail a true copy of the document directly to 7 || defendants, but once defendants are represented by counsel, all documents must be mailed to 8 counsel rather than directly to defendants. 9 3. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 10 || Court informed of any change of address and must comply with the Court’s orders in a timely 11 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 12 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 13 || pending case every time he is moved to a new facility. 14 4. Any motion for an extension of time must be filed no later than the deadline sought 3 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that a 16 || he must include the case name and case number for this case on any document he submits to the 2 17 || Court for consideration in this case. Z 18 5. The case will remain stayed for all purposes other than service of the complaint on 19 || defendants. 20 IT IS SO ORDERED. 21 Dated: April 15, 2025 22 23 EDWARD J. DAVILA 24 United States District Judge 25 26 27 28