1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Case No. 21-cv-01693-JSW
8 Plaintiff, ORDER OF SERVICE; 9 v. DENYING LEAVE TO PROCEED IN 10 RON DAVIS, et al., FORMA PAUPERIS; 11 Defendants. DENYING MOTION TO SUPPLEMENT 12
13 14 INTRODUCTION 15 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 16 U.S.C. § 1983 against prison officials for violating his constitutional rights at San Quentin State 17 Prison. Plaintiff has paid the filing fee. For the reasons discussed below, Plaintiff’s Second 18 Amendment Complaint (SAC), Dkt. No. 20, is ordered served on Defendants. 19 ANALYSIS 20 A. STANDARD OF REVIEW 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 24 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 25 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 27 Cir. 1990). 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only ‘“give the defendant fair notice of what the . . . claim is and the grounds upon 3 which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 4 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s 5 obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 7 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 8 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 9 must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 12 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 13 487 U.S. 42, 48 (1988). 14 B. LEGAL CLAIMS 15 Plaintiff alleges that Defendants were involved in the decision to transfer over 100 16 prisoners, some of whom were infected with COVID-19, from the California Institute for Men 17 (CIM) to San Quentin State Prison (SQSP) around May 26, 2020, “without protective ge[a]r and 18 without proper exams.” Dkt. No. 20 at 3. He alleges that the transfer caused a COVID-19 19 outbreak at SQSP, during which he tested positive for the virus on June 29, 2020. 20 Plaintiff names the following Defendants: 21 1. Ronald Broomfield, Warden 22 2. Troy Allen, CDW(A) and TLR 23 3. Matt Verdier, CEO of SQSP 24 4. Ron Davis, Transportation Supervisor 25 5. J. Clark Kelso, Receiver 26 When liberally construed, Plaintiff’s allegations state a cognizable claim for deliberate 27 indifference to his safety, in violation of the Eighth Amendment, against all Defendants. 1 distress against all Defendants. Under California law, “there is no independent tort of negligent 2 infliction of emotional distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 3 (1993). A negligent infliction of emotional distress claim is only available where the “defendant 4 has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object,” and 5 “recovery is available only if the emotional distress arises the defendant’s breach of some other 6 legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985. 7 Here, Defendants have a duty to plaintiff as a prisoner under state tort law. California “[c]ase law 8 holds that ‘there is a special relationship between jailer and prisoner, imposing on the former a 9 duty of care to the latter’.” Lawson v. Superior Ct., 180 Cal. App. 4th 1372, 1389–90 (2010) 10 (quoting Giraldo v. Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 250 11 (2008)). Plaintiff alleges that the emotional distress arose out of Defendants’ breach of their duty 12 to him by exposing him to COVID-19. 13 CONCLUSION For the reasons set out above, 14 1. The Court ORDERS that service on the following Defendants shall proceed under 15 the California Department of Corrections and Rehabilitation (“CDCR”) e-service program for civil 16 rights cases from prisoners in the CDCR’s custody: 17 a. Ronald Broomfield 18 b. Troy Allen 19 c. Matt Verdier 20 d. Ron Davis 21 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 22 following documents: the operative complaint (Dkt. No. 20), this Order of Service, a CDCR 23 Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order 24 on the Plaintiff. 25 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 26 provide the court a completed CDCR Report of E-Service Waiver advising the court which 27 defendant(s) listed in this order will be waiving service of process without the need for service by 1 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 2 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 3 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 4 a waiver of service of process for the defendant(s) who are waiving service. 5 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 6 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 7 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 8 of this order, the summons and the operative complaint for service upon each defendant who has 9 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 10 Service Waiver. 11 2. The Court ORDERS that service on defendant Clark Kelso shall proceed 12 separately. The Clerk is directed to electronically serve Clark Kelso and his attorney via the email 13 address HCLitigationSupport@cdcr.ca.gov the following documents: the operative complaint 14 (Dkt. No. 20), this Order of Service, and a Waiver of the Service of Summons form. 15 No later than 40 days after service of this order via email on defendant Kelso and his 16 attorney, defendant Kelso shall file the Waiver of the Service of Summons or a Notice indicating 17 that he does not waive service. If defendant Kelso files such a notice, the Clerk shall prepare a 18 USM-205 Form and shall provide to the USMS the completed USM-205 form and copies of this 19 order, the summons, and the operative complaint for service upon defendant Kelso. 20 3. All Defendants are cautioned that Rule 4
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Case No. 21-cv-01693-JSW
8 Plaintiff, ORDER OF SERVICE; 9 v. DENYING LEAVE TO PROCEED IN 10 RON DAVIS, et al., FORMA PAUPERIS; 11 Defendants. DENYING MOTION TO SUPPLEMENT 12
13 14 INTRODUCTION 15 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 16 U.S.C. § 1983 against prison officials for violating his constitutional rights at San Quentin State 17 Prison. Plaintiff has paid the filing fee. For the reasons discussed below, Plaintiff’s Second 18 Amendment Complaint (SAC), Dkt. No. 20, is ordered served on Defendants. 19 ANALYSIS 20 A. STANDARD OF REVIEW 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 24 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 25 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 27 Cir. 1990). 1 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 2 statement need only ‘“give the defendant fair notice of what the . . . claim is and the grounds upon 3 which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 4 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s 5 obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 7 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 8 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 9 must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 12 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 13 487 U.S. 42, 48 (1988). 14 B. LEGAL CLAIMS 15 Plaintiff alleges that Defendants were involved in the decision to transfer over 100 16 prisoners, some of whom were infected with COVID-19, from the California Institute for Men 17 (CIM) to San Quentin State Prison (SQSP) around May 26, 2020, “without protective ge[a]r and 18 without proper exams.” Dkt. No. 20 at 3. He alleges that the transfer caused a COVID-19 19 outbreak at SQSP, during which he tested positive for the virus on June 29, 2020. 20 Plaintiff names the following Defendants: 21 1. Ronald Broomfield, Warden 22 2. Troy Allen, CDW(A) and TLR 23 3. Matt Verdier, CEO of SQSP 24 4. Ron Davis, Transportation Supervisor 25 5. J. Clark Kelso, Receiver 26 When liberally construed, Plaintiff’s allegations state a cognizable claim for deliberate 27 indifference to his safety, in violation of the Eighth Amendment, against all Defendants. 1 distress against all Defendants. Under California law, “there is no independent tort of negligent 2 infliction of emotional distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 3 (1993). A negligent infliction of emotional distress claim is only available where the “defendant 4 has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object,” and 5 “recovery is available only if the emotional distress arises the defendant’s breach of some other 6 legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985. 7 Here, Defendants have a duty to plaintiff as a prisoner under state tort law. California “[c]ase law 8 holds that ‘there is a special relationship between jailer and prisoner, imposing on the former a 9 duty of care to the latter’.” Lawson v. Superior Ct., 180 Cal. App. 4th 1372, 1389–90 (2010) 10 (quoting Giraldo v. Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 250 11 (2008)). Plaintiff alleges that the emotional distress arose out of Defendants’ breach of their duty 12 to him by exposing him to COVID-19. 13 CONCLUSION For the reasons set out above, 14 1. The Court ORDERS that service on the following Defendants shall proceed under 15 the California Department of Corrections and Rehabilitation (“CDCR”) e-service program for civil 16 rights cases from prisoners in the CDCR’s custody: 17 a. Ronald Broomfield 18 b. Troy Allen 19 c. Matt Verdier 20 d. Ron Davis 21 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 22 following documents: the operative complaint (Dkt. No. 20), this Order of Service, a CDCR 23 Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order 24 on the Plaintiff. 25 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 26 provide the court a completed CDCR Report of E-Service Waiver advising the court which 27 defendant(s) listed in this order will be waiving service of process without the need for service by 1 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 2 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 3 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 4 a waiver of service of process for the defendant(s) who are waiving service. 5 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 6 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 7 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 8 of this order, the summons and the operative complaint for service upon each defendant who has 9 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 10 Service Waiver. 11 2. The Court ORDERS that service on defendant Clark Kelso shall proceed 12 separately. The Clerk is directed to electronically serve Clark Kelso and his attorney via the email 13 address HCLitigationSupport@cdcr.ca.gov the following documents: the operative complaint 14 (Dkt. No. 20), this Order of Service, and a Waiver of the Service of Summons form. 15 No later than 40 days after service of this order via email on defendant Kelso and his 16 attorney, defendant Kelso shall file the Waiver of the Service of Summons or a Notice indicating 17 that he does not waive service. If defendant Kelso files such a notice, the Clerk shall prepare a 18 USM-205 Form and shall provide to the USMS the completed USM-205 form and copies of this 19 order, the summons, and the operative complaint for service upon defendant Kelso. 20 3. All Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 21 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 22 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 23 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 24 cost of such service unless good cause can be shown for their failure to sign and return the waiver 25 form. 26 4. This Court will issue a scheduling order for summary judgment or other dispositive 27 motion briefing after resolution of the common issues in the 22-mc-80066-WHO matter. See Dkt. 1 5. All communications by Plaintiff with the Court must be served on Defendants’ 2 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 3 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 4 counsel has been designated, Plaintiff may mail a true copy of the document directly to 5 Defendants, but once Defendants are represented by counsel, all documents must be mailed to 6 counsel rather than directly to Defendants. 7 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 8 Court informed of any change of address and must comply with the Court’s orders in a timely 9 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 10 pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of 11 address in every pending case every time he is moved to a new facility. 12 7. Any motion for an extension of time must be filed no later than the deadline sought 13 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 14 he must include the case name and case number for this case on any document he submits to the 15 Court for consideration in this case. 16 8. Plaintiff’s request to proceed in forma pauperis (see Dkt. Nos. 3-4) is DENIED in 17 light of his average trust account balance for the most recent 6-month period of over $10,000 in 18 accordance with 28 United States Code § 1915. Plaintiff has already paid the filing fee and service 19 has been ordered through the e-service program. However, if any Defendants do not waive service 20 and are required to be served by the USMS, the USMS may seek reimbursement from plaintiff for 21 any costs associated with the service of those defendants. 22 9. Plaintiff’s Motion to Add Supplement Exhibits (Dkt. No. 23) is DENIED. Plaintiff 23 asks “to add supplement exhibits to address the deliberate indifference that San Quentin State 24 Prison officials allowed to take place on or about May 26, 2020 thr[ough] December 23, 2021.” 25 Dkt. No. 23 at 1. He describes an order by a federal judge in the District of Oregon denying 26 prison officials qualified immunity for their COVID-19 response. He also cites a Fourth Circuit 27 case involving double-celling and overcrowding. Id. at 2-3. And he attaches documentation of 1 regarding a COVID-19 outbreak from Alison Pachynski to all SQSP residents; several letters from 2 attorneys declining to represent Plaintiff; and the Order of Limited Assignment at Docket No. 21 3 || from the 3:22-mc-80066-WHO matter. Jd. at 4. No briefing has yet been ordered in Plaintiff's 4 || case on this docket or on the docket for the 3:22-mc-80066-WHO matter. Plaintiff will have an 5 || opportunity in the future to submit briefing and exhibits regarding qualified immunity, should 6 || Defendants raise it. Plaintiff's supplemental materials are more relevant to such a later stage of 7 his case, and he may refile them later when appropriate. 8 This Order terminates Dkt. No. 23. 9 IT IS SO ORDERED. 10 Dated: August 4, 2022 a | 11 ff i flo Ss 12 i -- AEFBREY S. WHITE 13 / /Unipyd \Stater/District Judge | / □
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