Paris v. Pollard

• Court: District Court, S.D. California
• Decided: July 27, 2023
• Docket: 3:22-cv-00565
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ANDREW PARIS, Case No.: 3:22-cv-00565-AGS-AHG

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING DEFENDANT’S 14 MARCUS POLLARD, MOTION TO DISMISS 15 Defendant. [ECF No. 8] 16

17 18 19 20 21 Plaintiff Michael Andrew Paris (“Plaintiff”), a state prisoner proceeding pro se and 22 in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that 23 former warden, Marcus Pollard (“Defendant”), violated his rights under the Eighth 24 Amendment when Defendant failed to adequately protect Plaintiff’s health and safety 25 during a COVID-19 outbreak at Richard J. Donovan Correctional Facility (“RJD”). ECF 26 Nos. 1, 4. Defendant filed a motion to dismiss, which Plaintiff opposes. ECF Nos. 8, 10. 27 For the reasons outlined below, the Court RECOMMENDS that the District Judge 28 GRANT the motion to dismiss with leave to amend. 1 I. BACKGROUND 2 In his complaint, Plaintiff alleges that, in December 2020, there was a COVID-19 3 outbreak at RJD, during which “over 1,000 inmates and correctional staff,” including 4 Plaintiff, contracted COVID-19. ECF No. 1 at 3. Plaintiff contends Defendant, the warden 5 of RJD at that time, was “negligent under deliberate indifference” because he failed to 6 require all RJD employees be tested for COVID-19 before entering the prison until 7 December 16, 2020, after1 the outbreak had already begun. Id. Plaintiff contends Defendant 8 was “responsible for the health and safety of all inmates and his deliberate indifference 9 [was] inexcusable.” Id. Plaintiff further contends he has suffered “long term effects” from 10 contracting COVID-19. Id. Plaintiff claims Defendant violated his Eighth Amendment 11 rights and seeks compensatory and punitive damages. Id. at 3, 7. 12 On January 7, 2023, Defendant filed a motion to dismiss Plaintiff’s complaint. ECF 13 No. 8. Plaintiff timely filed his opposition on February 3, 2023. ECF No. 10. Defendant 14 timely filed his reply on March 1, 2023. ECF No. 12. The Court finds the matter suitable 15 for submission without oral argument pursuant to CivLR 7.1(d)(1). 16 II. PARTIES’ POSITIONS 17 Defendant contends that Plaintiff’s complaint should be dismissed because Plaintiff 18 failed to state a claim upon which relief can be granted and because Defendant is entitled 19 to qualified immunity. ECF No. 8 at 7.2 Defendant argues that Plaintiff failed to state a 20 21 1 It is unclear from Plaintiff’s complaint whether the COVID-19 outbreak, where Plaintiff presumably contracted COVID-19, occurred before or after the testing of employees began 22 on December 16, 2020. See ECF No. 1 at 3 (explaining that “in December 2020 RJD had 23 a COVID-19 outbreak[,]” and noting that Plaintiff “tested positive for COVID-19 in December of 2020”). However, the Court will liberally construe Plaintiff’s complaint as 24 alleging the outbreak occurred before testing began. See, e.g., Hebbe v. Pliler, 627 F.3d 25 338, 342 (9th Cir. 2010) (“liberal construction to the filings of pro se litigants, especially 26 when they are civil rights claims by inmates”). 27 2 Due to discrepancies between original and imprinted page numbers, page numbers for docketed materials cited in this Order refer to those imprinted by the court’s electronic case 28 1 claim for deliberate indifference because: (1) Plaintiff’s allegations are too general; (2) the 2 failure to adopt alternative preventive measures does not constitute deliberate indifference; 3 (3) Plaintiff fails to allege that Defendant acted unreasonably; and (4) Plaintiff does not 4 allege that Defendant knew of the risk to safety and deliberately disregarded the risk. Id. at 5 12. Defendant argues that he is entitled to qualified immunity because it was not clearly 6 established that his COVID-19 response was constitutionally deficient. Id. at 17. 7 In response, Plaintiff contends that he had a higher risk of contracting COVID-19 8 due to his medical history. ECF No. 10 at 2. Plaintiff contends that Defendant disregarded 9 an excessive risk to Plaintiff’s health because he knew or should have known that COVID- 10 19 was spreading rapidly in correctional institution settings due to several recent outbreaks. 11 Id. at 1. Plaintiff argues that, since RJD had prohibited visitors due to the risks of the 12 pandemic, it should have required those essential employees to be tested for COVID-19. 13 Id. Plaintiff further argues that, as the warden of the prison, Defendant had a duty to 14 mitigate the effects of the pandemic and prevent outbreaks of COVID-19. Id. 15 Defendant responds that Plaintiff’s more detailed allegations in his opposition still 16 do not state a claim upon which relief can be granted, because Defendant’s failure to adopt 17 alternative preventative measures does not constitute deliberate indifference. ECF No. 11 18 at 2–3; see also id. at 3 (“Plaintiff identifies an action Defendant might have taken to reduce 19 to spread of the virus, i.e., testing earlier, but provides no factual or legal support that failure 20 to take such action constituted deliberate indifference to Plaintiff’s safety”). Defendant 21 further responds that, although Plaintiff alleged Defendant was aware of the risk to inmates 22 generally, Plaintiff failed to allege that Defendant was aware of an elevated risk to Plaintiff 23 in particular. Id. at 3. 24 III. LEGAL STANDARD 25 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 26 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A 27 complaint must contain “a short and plain statement of the claim showing that the pleader 28 is entitled to relief.” FED. R. CIV. P. 8(a)(2). However, plaintiffs must also plead “enough 1 facts to state a claim to relief that is plausible on its face.” FED. R. CIV. P. 12(b)(6); Bell 2 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard thus demands 3 more than a formulaic recitation of the elements of a cause of action, or conclusory 4 allegations, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 5 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of underlying 6 facts sufficient to give fair notice and to enable the opposing party to defend itself 7 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 8 In determining whether a complaint states a claim to relief that is plausible on its 9 face, factual allegations are accepted as true and construed in the light most favorable to 10 plaintiff. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the 11 “tenet that a court must accept as true all of the allegations contained in a complaint is 12 inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; see also Chavez v. United States, 13 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements, which are 14 not entitled to the presumption of truth, before determining whether a claim is plausible”). 15 Accordingly, after discounting any unsupported conclusory allegations, the factual 16 allegations in the pleading, when accepted as true, need “only plausibly suggest an 17 entitlement to relief.” Starr, 652 F.3d at 1216–17 (internal quotation marks omitted). 18 Pro se litigants “must be ensured meaningful access to the courts.” Rand v. Rowland, 19 154 F.3d 952, 957 (9th Cir. 1998) (en banc). When a plaintiff is appearing pro se, the court 20 must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. See, 21 e.g., Hebbe, 627 F.3d at 342; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 22 623 (9th Cir. 1988). In giving liberal interpretation to a pro se complaint, however, the 23 court is not permitted to “supply essential elements of the claim that were not initially 24 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 IV. DISCUSSION 26 Defendant seeks dismissal of Plaintiff’s complaint (1) because Plaintiff failed to 27 state a claim upon which relief can be granted and (2) because Defendant is entitled to 28 qualified immunity. ECF No. 8 at 7. The Court will address each in turn. 1 A. Whether Plaintiff States a Claim for Deliberate Indifference 2 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” 3 U.S. CONST. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel 4 and unusual punishment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Estelle v. Gamble, 5 429 U.S. 97, 105–06 (1976). As such, it is “cruel and unusual punishment to hold convicted 6 criminals in unsafe conditions.” Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982); see 7 also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (“The Eighth 8 Amendment’s prohibition against cruel and unusual punishment protects prisoners not only 9 from inhumane methods of punishment but also from inhumane conditions of 10 confinement”). Thus, prison officials have a constitutional obligation to protect inmates 11 from a “serious, communicable disease.” See Helling v. McKinney, 509 U.S. 25, 32–34 12 (1993); see also Hutto v. Finney, 437 U.S. 678, 682–83 (1978) (affirming Eighth 13 Amendment violation, in part, because prisoners were kept in crowded cells with others 14 suffering from infectious diseases, such as hepatitis and venereal disease); Andrews v. 15 Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (recognizing a cause of action under the 16 Eighth Amendment and 42 U.S.C. § 1983 “premised on the danger of contracting various 17 communicable diseases” from being housed with contagious inmates during a known 18 “epidemic”). “It is clear that COVID-19 poses a substantial risk of serious harm to 19 prisoners.” Patton v. Gastello, No. 21-cv-6634-JFW-PLA, 2022 WL 18228258, at *4 (C.D. 20 Cal. Oct. 26, 2022), report and recommendation adopted, 2023 WL 1931325 (C.D. Cal. 21 Feb. 10, 2023); see, e.g., Fuller v. Amis, No. ED-CV-21-127-SSS-AS, 2023 WL 3822057, 22 at *4 (C.D. Cal. Apr. 13, 2023) (collecting cases). 23 To plead an Eighth Amendment claim, prisoners must allege facts sufficient to 24 plausibly show that officials acted with deliberate indifference to a substantial risk of harm 25 to their health or safety. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The deliberate 26 indifference standard involves an objective and subjective prong. First, the plaintiff must 27 allege, in objective terms, a “sufficiently serious” deprivation. Id. at 834 (citing Wilson v. 28 Seiter, 501 U.S. 294, 298 (1991)). Second, the inmate must allege the prison official “knew 1 of and disregarded an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837. 2 Put another way, a prison official may be held liable under the Eighth Amendment for 3 denying humane conditions of confinement only if he knows that inmates face a substantial 4 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. 5 at 837–45. 6 In his complaint,3 Plaintiff alleges that, as RJD’s warden, Defendant was responsible 7 for ensuring the safety of RJD prisoners during the COVID-19 pandemic and his failure to 8 require testing of employees entering the facility amounted to a violation of Plaintiff’s 9 Eighth Amendment rights. ECF No. 1 at 3. However, vague and conclusory allegations 10 concerning the involvement of official personnel in civil rights violations are not sufficient 11 to state a cognizable cause of action. See Ivey, 673 F.2d at 268; see, e.g., Hall v. Allison, 12 No. 21-cv-1520-JFW-E, 2022 WL 3013162, at *11 (C.D. Cal. Jul. 18, 2022) (finding 13 plaintiff’s “conclusory allegations” that prison warden “purportedly failed to prevent or 14 mitigate the outbreak of Covid” to be insufficient to state a cognizable Eighth Amendment 15 claim); Peyton v. Cates, No. 22-cv-151-JLT-EPG-PC, 2022 WL 1430752, at *6 (E.D. Cal. 16 May 5, 2022) (“Plaintiff’s generalized allegations that Defendant, as the head of the prison, 17 should have better responded to the COVID pandemic are insufficient to show that 18 Defendant knew of and disregarded an excessive risk to Plaintiff’s health.”). 19 Further, a “plaintiff’s generalized allegations of the risks associated with COVID- 20 19 without any causal link between defendant[’s] actions or inaction and plaintiff’s 21 22 23 3 Though Plaintiff’s opposition contains additional allegations, the focus of the Court’s analysis is the complaint. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194, 24 1197 n.1 (9th Cir. 1998) (when resolving a motion to dismiss for failure to state a claim, a 25 “court may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss” because any “new 26 allegations contained in the inmates’ opposition … are irrelevant for Rule 12(b)(6) 27 purposes”) (emphasis omitted); see, e.g., Morgan v. Aurora Loan Servs., LLC, 646 F. App’x 546, 549 n.2 (9th Cir. 2016) (refusing to consider statements contained only in 28 1 subsequent harm are insufficient to state a claim under the Eighth Amendment.” Patton, 2 2022 WL 18228258, at *5. Here, Plaintiff alleges that he tested positive for COVID-19 3 during a prison-wide outbreak as a result of Defendant’s failure to test correctional staff 4 entering the prison. ECF No. 1 at 3. This conclusory allegation lacks a causal link. See 5 Tran v. Tampkins, No. ED-CV-22-167-MCS-DFM, 2023 U.S. Dist. LEXIS 8922, at *13 6 (C.D. Cal. Jan. 18, 2023) (dismissing complaint where the plaintiff alleged that the prison 7 “did not conduct staff testing as early as they were required to do [] and that, as a result, 8 Plaintiff contracted COVID-19” from an administrative staff member, explaining that 9 plaintiff’s conclusory statement failed to establish a causal connection). 10 The Court also finds that Plaintiff has failed to allege sufficient facts to show 11 Defendant “knew of and disregarded an excessive risk to inmate health or safety[.]” See 12 Farmer, 511 U.S. at 837. In his complaint, Plaintiff states Defendant was “negligent under 13 deliberate indifference.” ECF No. 1 at 3. Deliberate indifference requires a defendant 14 possess a subjective “state of mind more blameworthy than negligence,” akin to criminal 15 recklessness. Farmer, 511 U.S. at 835, 839–40. Plaintiff must allege specific facts to show 16 not only that Defendant was personally aware of the facts from which he could draw an 17 inference that a substantial risk existed, “and he must also draw the inference.” Farmer, 18 511 U.S. at 837. 19 For example, in his complaint, Plaintiff alleges that Defendant failed to properly 20 protect all inmates. See ECF No. 1 at 2 (“[Defendant] failed to properly protect the inmates 21 at RJD”); id. (“the warden is responsible for the health and safety at RJD for all inmates”). 22 As such, Plaintiff fails to establish that Defendant was subjectively aware of the risk to 23 Plaintiff in particular.4 See, e.g., Tran, 2023 U.S. Dist. LEXIS 8922, at *13 (dismissing 24

25 4 A “factfinder may conclude that a prison official knew of a substantial risk from the very 26 fact that the risk was obvious.” Farmer, 511 U.S. at 842; see, e.g., Jones v. Pollard, No. 27 21-cv-162-MMA-RBM, 2022 WL 706926, at *8–*9 (S.D. Cal. Mar. 9, 2022) (noting that the increased risk of COVID-19 infection due the intentional placement of infected inmates 28 1 complaint, explaining that, “[w]hile the Court could reasonably infer that these Defendants 2 were generally aware of the risk of COVID-19 to inmates, there is no indication that any 3 of these Defendants were subjectively aware of a serious risk of substantial harm to 4 Plaintiff”); Jones, 2022 WL 706926, at *7–*9 (granting motion to dismiss as to warden’s 5 “failure to control the spread of COVID-19 within RJD, generally, including the allegations 6 pertaining to the failure to provide appropriate masks” and denying motion to dismiss as 7 to specific allegations regarding warden’s affirmative decision to place inmates infected 8 with COVID-19 in the mental health building where Plaintiff was housed); see cf. Victory 9 v. Allison, No. 22-cv-1118-JLT-SAB-PC, 2023 WL 3824827, at *8 (E.D. Cal. June 5, 10 2023) (recommending dismissal of complaint where the “complaint fails to set forth 11 sufficient factual allegations to demonstrate that Defendants knowingly disregarded an 12 excessive risk to Plaintiff’s health and safety. Rather, Plaintiff’s allegations amount to 13 potential negligence, at most, which is not sufficient to give rise to a claim for relief”). 14 In addition, when an inmate names the warden as a defendant, he must specifically 15 allege the warden’s personal involvement in the constitutional deprivation or a causal 16 connection between the alleged wrongful conduct and the alleged constitutional 17 deprivation. Iqbal, 556 U.S. at 676. This is because “wardens are not liable based solely on 18 their role in supervising prisons.” McKissick v. Gastelo, No. 21-cv-1945-VAP-MAA, 2021 19 WL 1388346, at *3 (C.D. Cal. Apr. 13, 2021). “A defendant may be held liable as a 20 supervisor under § 1983 ‘if there exists either (1) his or her personal involvement in the 21 constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s 22 wrongful conduct and the constitutional violation.’” Starr, 652 F.3d at 1207 (quoting 23 24 25 the heightened risk to Plaintiff of contracting COVID-19 and disregarded that risk”). However, here, by failing to allege any medical risk factors, or means that the virus was 26 spread such as through a specific housing unit, Plaintiff has not adequately pled that the 27 risk to him was obvious. Additionally, Plaintiff argued to the contrary in his opposition, noting that “masks were required and social distancing w[as] part of the plan to mitigate 28 1 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 2 Supervisory liability may exist without any personal participation if the official 3 implemented “a policy so deficient that the policy itself is a repudiation of the 4 constitutional rights and is the moving force of the constitutional violation.” Redman v. 5 Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks 6 omitted), abrogated on other grounds, Farmer, 511 U.S. at 825. To prove liability for an 7 action or policy, the plaintiff must “demonstrate that his deprivation resulted from an 8 official policy or custom established by a … policymaker possessed with final authority to 9 establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 10 2010). When a defendant holds a supervisory position, the causal link between such 11 defendant and the claimed constitutional violation must be specifically alleged. See Fayle 12 v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 13 Cir. 1978). Vague and conclusory allegations concerning the involvement of supervisory 14 personnel in civil rights violations are not sufficient. See Ivey, 673 F.2d at 268. 15 While Plaintiff alleges that Defendant failed to take action to abate the spread of 16 COVID-19 until December 16, 2020, when he instituted testing of employees, Plaintiff 17 fails to allege specific facts to show that Defendant knew of the risk to inmate safety and 18 disregarded it by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 825. 19 It is not enough to show inmates were at risk of contracting COVID-19 generally, or that 20 Defendant was aware of that risk. Under the second subjective prong, “[a] prison official 21 may be held liable under the Eighth Amendment for acting with ‘deliberate indifference’ 22 to inmate health or safety only if he knows that inmates face a substantial risk of serious 23 harm and disregards that risk by failing to take reasonable measures to abate it.” Id. 24 Thus, to the extent Plaintiff roots his Eighth Amendment claim solely on 25 Defendant’s status as warden of the prison, it also does not provide a cognizable basis for 26 liability. See Kersh v. Gastelo, No. 21-cv-1921-CAS, 2022 WL 1037754, at *4 (C.D. Cal. 27 Feb. 28, 2022) report and recommendation adopted, 2022 WL 1032389 (C.D. Cal. Apr. 6, 28 2022) (dismissing complaint that warden did not do enough to abate the spread of COVID- 1 19); McKissick, 2021 WL 1388346, at *1–*3 (finding no supervisory liability and 2 dismissing complaint against warden for failing to protect inmates from spread of COVID- 3 19 where plaintiff alleged a failure to implement social distancing and noted that the staff 4 failed to wear face masks to ensure Plaintiff’s safety). Here, Plaintiff has failed to allege 5 facts plausibly showing that Defendant violated the Eighth Amendment by acting with 6 deliberate indifference to Plaintiff’s safety with regard to implementing COVID-19 7 mitigation strategies. See, e.g., Tran, 2023 U.S. Dist. LEXIS 8922, at *18 (even if wardens 8 “could have taken additional steps to follow applicable health and safety guidelines and 9 further reduce the risk of COVID-19 for inmates, the Complaint fails to show the level of 10 unreasonable response to COVID-19 necessary to state a claim for deliberate 11 indifference”); Burgess v. Newsom, No. 21-cv-77-SAB-PC, 2021 WL 4061611, at *4 (E.D. 12 Cal. Sept. 7, 2021), report and recommendation adopted, 2021 WL 4975140 (E.D. Cal. 13 Oct. 25, 2021) (finding no supervisory liability and dismissing complaint against warden, 14 which alleged failures to enforce social distancing to control the spread of COVID-19, 15 explaining that, “even if the response at [the] Prison has been inadequate, there are 16 insufficient allegations to demonstrate that [the wardens or associate wardens] disregarded 17 a known risk or failed to take any steps to address the risk”). 18 Accordingly, because Plaintiff fails to state a claim against Defendant as an 19 individual or as a supervisor, the Court recommends that Defendant’s motion to dismiss be 20 granted. 21 B. Whether Plaintiff Should be Permitted to Amend his Complaint 22 If a complaint fails to state a claim but the defects could be cured, the court should 23 provide leave to amend, especially if the plaintiff is pro se. See Lopez v. Smith, 203 F.3d 24 1122, 1130–31 (9th Cir. 2000) (en banc); see also Cato v. United States, 70 F.3d 1103, 25 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave to amend his or 26 her complaint, and some notice of its deficiencies, unless it is absolutely clear that the 27 deficiencies of the complaint could not be cured by amendment”). 28 1 Because Plaintiff is proceeding pro se, and because the Court cannot determine with 2 certainty that Plaintiff will be unable to state a claim, the Court recommends giving 3 Plaintiff the opportunity to amend his complaint to remedy the deficiencies. 4 The Court reminds Plaintiff, if the instant Report and Recommendation is adopted, 5 Plaintiff’s amended complaint must be complete by itself without reference to any previous 6 version of his pleading—i.e., defendants not named and any claims not re-alleged in the 7 amended complaint will be considered waived. See CivLR 15.1; Hal Roach Studios, Inc. 8 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 9 pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 10 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 11 amended pleading may be “considered waived if not repled”). 12 C. Whether Defendant is Entitled to Qualified Immunity 13 Qualified immunity shields a public official from a suit for damages if, under the 14 Plaintiff’s version of the facts, a reasonable official in the Defendant’s position could have 15 believed that his conduct was lawful in the light of clearly established law and the 16 information the official possessed at the time the conduct occurred. See Pearson v. 17 Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 18 When determining whether a public official is entitled to qualified immunity, the inquiry 19 is twofold. Courts have discretion to decide which step to address first. Pearson, 555 U.S. 20 at 236. First, the Court must determine whether the plaintiff has alleged the deprivation of 21 an actual constitutional right. Id. Second, the Court must determine whether the right was 22 clearly established. Id. The determination of whether the law was clearly established “must 23 be undertaken in light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 24 201 (2001), overruled in part on other grounds, Pearson, 555 U.S. at 236. 25 The Court notes that “qualified immunity is generally a fact specific inquiry.” 26 Patton, 2022 WL 18228258, at *7 (citing Saucier, 533 U.S. at 201). Because the Court is 27 recommending the granting of leave to amend—substantially because Plaintiff has not 28 alleged sufficient factual allegations against Defendant—such a fact-intensive 1 determination is inappropriate at this stage of the proceedings. See id. At the present time, 2 the Court simply cannot determine whether Defendant’s actions are shielded by qualified 3 immunity because Plaintiff has failed to identify the specific actions or inaction of 4 Defendant in the complaint. See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) 5 (“a Rule 12(b)(6) dismissal is not appropriate unless we can determine, based on the 6 complaint itself, that qualified immunity applies”). Therefore, the Court recommends that 7 Defendant’s motion to dismiss on qualified immunity grounds should be denied without 8 prejudice at this time. See Patton, 2022 WL 18228258, at *7 (denying without prejudice 9 defendant’s motion to dismiss on qualified immunity grounds because it had granted 10 defendant’s motion to dismiss for failure to state a claim); Esparza v. Baca, No. 07-cv- 11 4119-PSG-OP, 2010 WL 4536786, at *12 (C.D. Cal. Aug. 31, 2010), report and 12 recommendation adopted, 2010 WL 4530364 (C.D. Cal. Oct. 29, 2010) (declining to 13 address qualified immunity defense when it had dismissed plaintiff’s complaint with leave 14 to amend, explaining that “[g]iven the Court’s ruling on the other issues herein, such a fact 15 intensive determination is inappropriate at this stage of the proceedings”); see cf. Jones, 16 2022 WL 706926, at *10 (denying defendant’s motion to dismiss as to qualified immunity 17 defense “without prejudice to Defendant raising the defense at a later stage of the 18 litigation,” because “qualified immunity should be more appropriately addressed at a later 19 stage[,]” while also collecting cases that show that an “existing precedent clearly 20 establishes the right of an individual in custody to protection from heightened exposure to 21 a serious communicable disease”). 22 V. CONCLUSION AND RECOMMENDATION 23 The Court submits this Report and Recommendation to United States District Judge 24 Andrew G. Schopler under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3 of the United 25 States District Court for the Southern District of California. In addition, IT IS HEREBY 26 RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report 27 and Recommendation, (2) directing that Defendant’s Motion to Dismiss be GRANTED as 28 to Plaintiff’s failure to state a claim and DENIED without prejudice as to Defendant’s 1 || qualified immunity defense, (3) dismissing Plaintiffs complaint, and (4) directing 2 || Plaintiff, if he still wishes to pursue this action, to file an Amended Complaint that remedies 3 || the deficiencies discussed above. 4 IT IS HEREBY ORDERED that any party to this action may file written objections 5 || with the Court and serve a copy on all parties no later than August 11, 2023. The document 6 ||should be captioned “Objections to Report and Recommendation.” 7 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 8 Court and served on all parties no later than August 18, 2023. 9 The parties are advised that failure to file objections within the specified time may 10 || waive the right to raise those objections on appeal of the Court’s Order. See Turner v. 11 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 12 1991). 13 IT IS SO ORDERED. 14 Dated: July 27, 2023 15 _ AnwioenH. Honorable Allison H. Goddard 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28