(PC) Cox v. Bal

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ERNEST LEE COX, JR., No. 2:22-cv-00804 WBS EFB 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 I. BAL, M. WILLIAMS, and T. PATTERSON, 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff, a state prisoner proceeding pro se, filed 20 this civil rights action seeking relief under 42 U.S.C. § 1983. 21 Plaintiff alleges that defendants violated his rights under the 22 Eighth Amendment in connection with inmate housing placements at 23 Mule Creek State Prison (“M.C.S.P.”) during the COVID-19 24 pandemic. (See Docket Nos. 19, 27.) 25 The Magistrate Judge’s findings and recommendations 26 recommend denying defendants’ motion to dismiss. (See Docket No. 27 49.) Neither side has filed objections to the findings and 28 recommendations. Nevertheless, because defendants are entitled 1 to qualified immunity, the court declines to follow the 2 Magistrate Judge’s recommendation for the following reasons. 3 As the Supreme Court has instructed, qualified immunity 4 is “an immunity from suit rather than a mere defense to 5 liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) 6 (emphasis added). While addressing qualified immunity at the 7 pleadings stage can “raise[] special problems for legal decision 8 making,” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), 9 the court must do so here. “[F]orc[ing] the parties to endure 10 additional burdens of suit -- such as the costs of litigating 11 constitutional questions and delays attributable to resolving 12 them -- when the suit otherwise could be disposed of more 13 readily” would impair the objectives of the qualified immunity 14 doctrine. See Pearson, 555 U.S. at 237. Indeed, if the court 15 were to put off addressing qualified immunity until summary 16 judgment, that immunity would be “effectively lost.” See id. at 17 231. 18 In determining whether a government official is 19 entitled to qualified immunity at the pleadings stage, courts 20 consider “(1) whether, taken in the light most favorable to the 21 party asserting the injury, the facts alleged show the officer’s 22 conduct violated a constitutional right; and (2) if so, whether 23 the right was clearly established.” Keates, 883 F.3d at 1235 24 (cleaned up). The complaint here fails to satisfy either step of 25 the analysis, and defendants are therefore entitled to qualified 26 immunity. 27 I. No Constitutional Violation 28 Prison officials violate the Eighth Amendment when they 1 are “deliberately indifferent” to a prisoner’s serious medical 2 needs. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). The 3 test for “deliberate indifference” is “that ‘the official knows 4 of and disregards an excessive risk to inmate health or safety . 5 . . .’” Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) 6 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Under 7 this standard, “prison officials who actually knew of a 8 substantial risk to inmate health or safety may be found free 9 from liability if they responded reasonably to the risk, even if 10 the harm ultimately was not averted.” Farmer, 511 U.S. at 844. 11 “Mere negligence . . . without more, does not violate a 12 prisoner’s Eighth Amendment rights.” Toguchi v. Chung, 391 F.3d 13 1051, 1057 (9th Cir. 2004). 14 “[A] prison official’s duty under the Eighth Amendment 15 is to ensure ‘reasonable safety,’” and therefore “prison 16 officials who act reasonably cannot be found liable under the 17 Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 844– 18 45 (cleaned up). Thus, “[i]n examining whether a prison official 19 subjectively acted with deliberate indifference to the risk of 20 COVID-19, the key inquiry is not whether the official responded 21 perfectly, complied with every CDC guideline, or completely 22 averted the risk; instead, the key inquiry is whether [he] 23 ‘responded reasonably to the risk.’” Fuller v. Amis, No. 21-cv- 24 127-SSS-AS, 2023 WL 3822057, at *4 (C.D. Cal. Apr. 13, 2023), 25 report and recommendation adopted, 2023 WL 3819181 (C.D. Cal. 26 June 2, 2023) (quoting Benitez v. Sierra Conservation Ctr., No. 27 1:21-cv-00370 BAM, 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 28 2021)). 1 According to the First Amended Complaint, beginning in 2 October 2020, “inmates infected with COVID-19 were housed in 3 M.C.S.P. facility A, B, and C gyms . . . . As these gyms were 4 filled to capacity, Facility D and E gyms were being used to 5 house[] COVID-19 infected inmates; each gym [was] filled with 100 6 inmates. Once facility D and E gyms were filled to capacity, 7 Facility E building 20 became the COVID-19 overflow housing 8 building.” (FAC (Docket No. 19) ¶ 14.) However, these 9 gymnasiums were obviously not originally designed or intended to 10 serve as hospital infirmaries, and in response to inmate 11 complaints concerning poor conditions, a fire marshal inspected 12 the D and E gyms and ordered that all the inmates be removed from 13 those facilities. (See id. ¶ 17.) Thirteen of those inmates 14 were moved into facility D building 16, where plaintiff resided, 15 but were housed in the “multi-purpose rooms” and “mental health 16 program rooms” rather than the regular cells. (Id. ¶ 19.) The 17 COVID-infected inmates shared circulated breathing air, showers, 18 and telephones with plaintiff and the other non-infected inmates. 19 (Id. ¶ 23-24.) The movements of the COVID-infected inmates were 20 not controlled and they were able to “move freely all day.” (Id. 21 ¶ 24.) 22 The prison offered single cell housing to patients 23 considered medically high risk, and required those inmates to 24 sign waivers if they refused the single cell housing. (Id. ¶ 25 26.) These cells were also obviously not originally intended or 26 designed for this purpose, and while plaintiff was not offered a 27 single cell, defendants represented that they did not have 28 adequate space to house all of the high-risk inmates in single 1 cells. (Id. ¶¶ 25-26.) Non-infected inmates were tested for 2 COVID twice weekly. (Id. ¶ 22.) On January 5, 2021, plaintiff 3 tested positive for COVID-19. He was then required to move to 4 Facility E building 20, the “COVID-19 overflow building.” (Id. ¶ 5 27.) 6 As this court has previously explained, COVID-19 was a 7 “quickly evolving area of science . . . about which scientific 8 conclusions have been hotly contested.” See Høeg v. Newsom, 652 9 F. Supp. 3d 1172, 1188 (E.D. Cal. 2023). This court has also 10 previously noted “the various discrepancies and shifts in [public 11 health] recommendations concerning COVID-19,” see Kory v. Bonta, 12 No. 2:24-cv-00001 WBS AC, 2024 WL 1742037, at *9 (E.D. Cal. Apr. 13 23, 2024), which may well have added to the uncertainty faced by 14 prison officials trying to stem the spread of the disease. The 15 novel nature of COVID-19 and the atmosphere of confusion 16 concerning the proper methods of addressing it are particularly 17 salient here given that the events alleged in the complaint 18 occurred in late 2020, less than a year into the pandemic. 19 With this context in mind, it is clear that the prison 20 officials were trying to do the best they could in unprecedented 21 circumstances. The allegations of the complaint acknowledge that 22 officials were making real efforts to contain the spread of 23 COVID-19. They had transformed gym facilities into makeshift 24 quarantine housing for the infected inmates, but were forced to 25 move those inmates back to the regular housing buildings. Even 26 so, officials continued to try to keep the infected inmates 27 separate from the rest of the population by housing infected 28 inmates in the multi-purpose and mental health rooms and offering 1 medically vulnerable inmates single cells to the extent possible. 2 The prison also maintained a frequent testing protocol and moved 3 inmates who tested positive -- including plaintiff -- out of the 4 general housing areas where possible. 5 Moreover, the circumstances faced by the officials here 6 underscore just how limited their options were. By the very 7 nature of a prison, officials are extremely constrained by 8 existing facilities. Add to that the decision of the fire 9 marshal that officials were barred from using the gymnasium 10 buildings, and a picture of officials stuck between a rock and a 11 hard place emerges. Officials had to comply with the orders of 12 the fire marshal to ensure that conditions were not unsafe in 13 case of fire, while also trying to maintain adequate spacing and 14 isolation of inmates to prevent the spread of COVID-19, with 15 access only to the necessarily limited facilities and resources 16 available in the prison context. The complaint provides no 17 plausible suggestion of what else defendants could or should have 18 done differently under these constraints. Even plaintiff 19 acknowledges that it was “impossible to practice six-feet social 20 distance” in the building where he was housed. (See FAC at p. 21 11.) 22 While the solutions implemented by prison officials may 23 not have been perfect, in that there was some contact between 24 infected and uninfected inmates, their actions were plainly 25 sufficient to “ensure reasonable safety” in the face of a novel 26 public health crisis, see Farmer, 511 U.S. at 844–45, given that 27 “proximity to other inmates is an unavoidable condition of 28 confinement,” Richardson v. Allison, No. 1:21-cv-00070 BAK GSA, 1 2022 WL 1409835, at *6 (E.D. Cal. May 4, 2022), report and 2 recommendation adopted, 2022 WL 2080054 (E.D. Cal. June 9, 2022). 3 Accordingly, the conduct of the defendants does not rise to the 4 high level of deliberate indifference. See Toguchi, 391 F.3d at 5 1060 (deliberate indifference is a “high legal standard”). 6 To the contrary, “[t]he very fact that [d]efendants . . 7 . enacted such policies supports that they have not been 8 subjectively indifferent to the risks poses by COVID-19.” See 9 Gonzalez v. Kline, 464 F. Supp. 3d 1078, 1090 (D. Ariz. 2020) 10 (emphasis added); see also Fields v. Sec’y of CDCR, No. 2:21-cv- 11 00548 KJM EFB, 2022 WL 2181997, at *6 (E.D. Cal. June 16, 2022), 12 report and recommendation adopted, No. 2:21-cv-0548 DAD EFB, 2022 13 WL 4124865 (E.D. Cal. Sept. 9, 2022) (the plaintiff’s “wish for 14 more rigorous [COVID-19] protocols, and/or his preference to be 15 single-celled” were not sufficient to establish deliberate 16 indifference); Lucero-Maney v. Brown, 464 F. Supp. 3d 1191, 1211 17 (D. Or. 2020) (“The Court cannot fault [the prison], which has no 18 control over the number of [inmates], for failing at the 19 impossible task of maintaining six feet between all [inmates] at 20 all times.”). 21 Accordingly, plaintiff has failed to plead that 22 defendants’ conduct violated the Eighth Amendment. 23 II. No Violation of a Clearly Established Right 24 Even if the facts alleged here constituted an Eighth 25 Amendment violation, plaintiff has not pled that defendants 26 violated clearly established law. “The relevant, dispositive 27 inquiry in determining whether a right is clearly established is 28 whether it would be clear to a reasonable officer that his 1 conduct was unlawful in the situation he confronted.” Saucier v. 2 Katz, 533 U.S. 194, 202 (2001); see also Keates, 883 F.3d at 1235 3 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)) (“At the 4 pleadings stage, defendants are entitled to qualified immunity 5 unless plaintiff sufficiently pleads violation of a “clearly 6 established constitutional right[] of which a reasonable officer 7 would be aware ‘in light of the specific context of the case.’”). 8 It is clearly established law that prison officials 9 violate the Eighth Amendment when they are “deliberately 10 indifferent to the exposure of inmates to a serious, communicable 11 disease.” Helling v. McKinney, 509 U.S. 25, 33 (1993). However, 12 qualified immunity should not automatically be denied in every 13 case involving contagious diseases, and to conclude otherwise 14 would defy the Supreme Court’s admonition “not to define clearly 15 established law at a high level of generality.” See Kisela v. 16 Hughes, 584 U.S. 100, 104 (2018). “[D]etermining whether the law 17 was clearly established ‘must be undertaken in light of the 18 specific context of the case, not as a broad general 19 proposition.’” Hampton v. California, 83 F.4th 754, 769 (9th 20 Cir. 2023), cert. denied sub nom. Diaz v. Polanco, 144 S. Ct. 21 2520 (2024) (quoting Saucier, 533 U.S. at 201). 22 That an inmate was exposed to a serious, communicable 23 disease such as COVID-19 does not itself alone make out a 24 violation of clearly established law. See Hines v. Youseff, 914 25 F.3d 1218, 1230–31 (9th Cir. 2019) (granting qualified immunity 26 to prison officials accused of violating Eighth Amendment by 27 exposing inmates to heightened risk of Valley Fever). As the 28 preceding section indicates, far more than that is required. And 1 under the particular circumstances facing the prison officials 2 here, it would not have been “clear” to “every reasonable 3 official . . . that what he is doing is unlawful.” See Dist. of 4 Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quotation marks 5 omitted). 6 In Hampton, the Ninth Circuit considered whether prison 7 officials were entitled to qualified immunity from Eighth 8 Amendment claims premised on their transfer of inmates from one 9 prison, the California Institution for Men (“CIM”), to another, 10 San Quentin. 83 F.4th at 759. As of May 2020, CIM had already 11 faced a severe outbreak with nine inmates dead and over six 12 hundred infected. The officials were aware that, in contrast, 13 San Quentin had no known cases of COVID-19 at the time, as well 14 as that containing an outbreak at San Quentin would be especially 15 difficult due to its unique design and facilities. Id. 16 Nonetheless, the officials decided to transfer over a hundred CIM 17 inmates to San Quentin, most of whom had not been tested for 18 COVID-19 for over three weeks and none of whom were adequately 19 screened for symptoms prior to transfer. Id. Although some 20 inmates started experiencing COVID-19 symptoms while en route to 21 San Quentin, the buses did not turn back, and none of the inmates 22 were quarantined upon arrival, but rather were placed into a 23 housing unit with other inmates. Id. 24 The transfer occurred following a conference call 25 during which the Marin County Public Health Officer warned 26 defendants of the high risk posed by the transfer and advised 27 defendants to take measures to prevent the spread of COVID-19, 28 which they ignored. Id. at 759-60. After the transfer, 1 defendants were further warned that the transfer could lead to a 2 health care crisis and were advised to, among other things, 3 provide personal protective equipment and institute a COVID-19 4 testing protocol. Defendants did not implement those 5 recommendations, even refusing an offer from a lab to provide 6 free testing. Id. at 760. By August, more than 2,000 7 individuals -- more than two-thirds of the inmate population -- 8 at San Quentin had been infected. Id. 9 The Ninth Circuit concluded that the prison officials 10 were not entitled to qualified immunity, reasoning that the 11 outbreak at San Quentin could have been avoided or at least 12 mitigated had officials chosen to transfer the inmates to a less 13 high-risk prison or implemented the recommended available safety 14 measures. “In other words, as alleged, a good option did exist . 15 . . . [H]ad Defendants tried, they could have moved the CIM 16 inmates without exposing other inmates to an unreasonable risk.” 17 Id. at 771. 18 In stark contrast to the facts alleged in Hampton, 19 there is no indication that officials here were presented with 20 recommendations from public health experts that they chose not to 21 comply with, nor does it appear that there was some alternative 22 “good option” by which officials could have mitigated the spread. 23 To the contrary, the First Amended Complaint indicates that 24 prison officials tried to implement the options available to them 25 using the limited resources at their disposal. Under these 26 facts, it would not have been clear to a reasonable officer that 27 the actions taken by defendants leading to plaintiff’s COVID-19 28 exposure were “unlawful in the situation he confronted.” See eee EI IE EIEN III EOI IEE III IIE SIGE III EES eee

1 Saucier, 533 U.S. at 202. Plaintiff has thus failed to plausibly 2 plead that defendants violated a clearly established right. 3 As the Supreme Court has taught us, qualified immunity 4 protects “all but the plainly incompetent or those who knowingly 5 | violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 6 | There is nothing in the record to permit an inference that 7 defendants here were either plainly incompetent or knowingly 8 violated the law. Accordingly, even if the court were to 9 | conclude that defendants’ conduct violated the Eighth Amendment, 10 at the very least they would be entitled to qualified immunity 11 because plaintiff has not alleged a violation of a clearly 12 established right. 13 IT IS THEREFORE ORDERED that defendants’ motion to 14 dismiss (Docket No. 43) be, and the same hereby is, GRANTED.! 15 | The Clerk of Court is directed to close this case. 16 | Dated: December 3, 2024 bette 2d. □□ 17 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 ff — 1 The court declines to grant leave to amend as 27 “allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Telesaurus 28 | vec, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). 11