1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN INDIANA CURRY, No. 2:23-cv-00791-TLN-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROLLIN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Plaintiff initiated this action on April 26, 2023, and filed his first amended 19 complaint (FAC) on June 26, 2023. ECF Nos. 1 and 13. Plaintiff’s FAC alleges that defendant 20 correctional officers Duty, Kelley, Brown, Murray, and Rolland1 housed plaintiff in a building 21 designated for COVID-19 positive inmates even though plaintiff tested negative for the virus. 22 Plaintiff alleges that as a result, he contracted COVID-19 and became very ill. After screening 23 the FAC, this court found that plaintiff’s allegations stated potentially cognizable Eighth 24 Amendment deliberate indifference claims against all defendants. ECF No. 14. The parties 25 conducted discovery, and defendants have now filed a motion for summary judgment on both 26 procedural and substantive grounds. ECF No. 53. Plaintiff has opposed the motion. ECF No. 27
28 1 Defendant Rolland was erroneously sued as “Rollin.” 1 56. For the following reasons, defendants’ motion for summary judgment must be GRANTED. 2 I. The Complaint 3 Plaintiff is currently incarcerated at the California State Prison in Los Angeles County. 4 ECF No. 33. Plaintiff’s claims against defendants for deliberate indifference under the Eighth 5 Amendment arise from plaintiff’s previous incarceration at High Desert State Prison (HDSP), 6 where defendants were employed as correctional officers. ECF No. 13. 7 According to plaintiff, in 2022 he was wrongly housed in a COVID-19 designated 8 building (Facility C) that housed inmates that were sick with or positive for COVID-19. ECF No. 9 13 at 4. Plaintiff alleges that even though he tested negative for COVID-19, he was forced to 10 move to Facility C. Plaintiff subsequently contracted COVID-19, and suffered from, inter alia, 11 fever, chills, shortness of breath, body aches, loss of taste and smell, and diarrhea. Plaintiff 12 alleges that he continues to suffer daily headaches as a result of his COVID-19 infection, for 13 which he is required to take medication. Id. Plaintiff seeks compensatory and punitive damages, 14 and any other equitable relief deemed necessary. Id. at 7. 15 II. Summary Judgment Standard 16 Summary judgment is appropriate when there is “no genuine dispute as to any material 17 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 18 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 19 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 20 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 21 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 22 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 23 motion asks whether the evidence presents a sufficient disagreement to require submission to a 24 jury. 25 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 26 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 27 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 28 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 1 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 2 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 3 motion and identifying those portions of the record, together with affidavits, if any, that it 4 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 5 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 6 its burden with a properly supported motion, the burden then shifts to the opposing party to 7 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 8 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 9 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 10 to summary judgment procedures. Depending on which party bears that burden, the party seeking 11 summary judgment does not necessarily need to submit any evidence of its own. When the 12 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 13 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 14 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 15 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 16 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 17 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 18 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 19 should be entered, after adequate time for discovery and upon motion, against a party who fails to 20 make a showing sufficient to establish the existence of an element essential to that party’s case, 21 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 22 circumstance, summary judgment must be granted, “so long as whatever is before the district 23 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 24 satisfied.” Id. at 323. 25 To defeat summary judgment the opposing party must establish a genuine dispute as to a 26 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 27 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 28 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 1 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 2 determined by the substantive law applicable for the claim in question. Id. If the opposing party 3 is unable to produce evidence sufficient to establish a required element of its claim that party fails 4 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 5 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 6 at 322. 7 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 8 the court must again focus on which party bears the burden of proof on the factual issue in 9 question. Where the party opposing summary judgment would bear the burden of proof at trial on 10 the factual issue in dispute, that party must produce evidence sufficient to support its factual 11 claim.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN INDIANA CURRY, No. 2:23-cv-00791-TLN-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROLLIN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Plaintiff initiated this action on April 26, 2023, and filed his first amended 19 complaint (FAC) on June 26, 2023. ECF Nos. 1 and 13. Plaintiff’s FAC alleges that defendant 20 correctional officers Duty, Kelley, Brown, Murray, and Rolland1 housed plaintiff in a building 21 designated for COVID-19 positive inmates even though plaintiff tested negative for the virus. 22 Plaintiff alleges that as a result, he contracted COVID-19 and became very ill. After screening 23 the FAC, this court found that plaintiff’s allegations stated potentially cognizable Eighth 24 Amendment deliberate indifference claims against all defendants. ECF No. 14. The parties 25 conducted discovery, and defendants have now filed a motion for summary judgment on both 26 procedural and substantive grounds. ECF No. 53. Plaintiff has opposed the motion. ECF No. 27
28 1 Defendant Rolland was erroneously sued as “Rollin.” 1 56. For the following reasons, defendants’ motion for summary judgment must be GRANTED. 2 I. The Complaint 3 Plaintiff is currently incarcerated at the California State Prison in Los Angeles County. 4 ECF No. 33. Plaintiff’s claims against defendants for deliberate indifference under the Eighth 5 Amendment arise from plaintiff’s previous incarceration at High Desert State Prison (HDSP), 6 where defendants were employed as correctional officers. ECF No. 13. 7 According to plaintiff, in 2022 he was wrongly housed in a COVID-19 designated 8 building (Facility C) that housed inmates that were sick with or positive for COVID-19. ECF No. 9 13 at 4. Plaintiff alleges that even though he tested negative for COVID-19, he was forced to 10 move to Facility C. Plaintiff subsequently contracted COVID-19, and suffered from, inter alia, 11 fever, chills, shortness of breath, body aches, loss of taste and smell, and diarrhea. Plaintiff 12 alleges that he continues to suffer daily headaches as a result of his COVID-19 infection, for 13 which he is required to take medication. Id. Plaintiff seeks compensatory and punitive damages, 14 and any other equitable relief deemed necessary. Id. at 7. 15 II. Summary Judgment Standard 16 Summary judgment is appropriate when there is “no genuine dispute as to any material 17 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 18 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 19 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 20 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 21 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 22 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 23 motion asks whether the evidence presents a sufficient disagreement to require submission to a 24 jury. 25 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 26 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 27 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 28 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 1 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 2 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 3 motion and identifying those portions of the record, together with affidavits, if any, that it 4 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 5 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 6 its burden with a properly supported motion, the burden then shifts to the opposing party to 7 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 8 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 9 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 10 to summary judgment procedures. Depending on which party bears that burden, the party seeking 11 summary judgment does not necessarily need to submit any evidence of its own. When the 12 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 13 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 14 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 15 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 16 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 17 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 18 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 19 should be entered, after adequate time for discovery and upon motion, against a party who fails to 20 make a showing sufficient to establish the existence of an element essential to that party’s case, 21 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 22 circumstance, summary judgment must be granted, “so long as whatever is before the district 23 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 24 satisfied.” Id. at 323. 25 To defeat summary judgment the opposing party must establish a genuine dispute as to a 26 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 27 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 28 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 1 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 2 determined by the substantive law applicable for the claim in question. Id. If the opposing party 3 is unable to produce evidence sufficient to establish a required element of its claim that party fails 4 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 5 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 6 at 322. 7 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 8 the court must again focus on which party bears the burden of proof on the factual issue in 9 question. Where the party opposing summary judgment would bear the burden of proof at trial on 10 the factual issue in dispute, that party must produce evidence sufficient to support its factual 11 claim. Conclusory allegations, unsupported by evidence, are insufficient to defeat the motion. 12 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 13 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 14 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 15 demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such 16 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 17 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 18 The court does not determine witness credibility. It believes the opposing party’s 19 evidence and draws inferences most favorably for the opposing party. See id. at 249, 255; 20 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 21 proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l 22 Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing 23 Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary 24 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On 25 the other hand, the opposing party “must do more than simply show that there is some 26 metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead 27 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 28 Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary 1 judgment. 2 Concurrent with their motion for summary judgment, defendants advised plaintiff of the 3 requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. 4 ECF No. 34-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 5 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999). 6 III. Analysis 7 A. Administrative Exhaustion as to Defendant Rolland 8 Defendant Rolland maintains that she was not named in any of plaintiff’s grievances he 9 submitted regarding his claims in this action. Thus, she argues, she is entitled to dismissal of the 10 claims against her. 11 The Prison Litigation Reform Act (PLRA) of 1995 provides that “[n]o action shall be 12 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 13 prisoner confined in any jail, prison, or other correctional facility until such administrative 14 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA applies to all suits 15 about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), and a prisoner is required to exhaust 16 those remedies which are available. See Booth v. Chumer, 532 U.S. 731, 736 (2001). To satisfy 17 the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has 18 included in the complaint. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 19 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials “time and 20 opportunity to address complaints internally before allowing the initiation of a federal case”). 21 Dismissal for failure to exhaust should generally be brought and determined by way of a 22 motion for summary judgment under Rule 56. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 23 2014). Under this rubric, defendant bears the burden of demonstrating that administrative 24 remedies were available, and that the plaintiff did not exhaust those remedies. Id. at 1172. If 25 defendant carries this burden, then plaintiff must “come forward with evidence showing that there 26 is something in his particular case that made the existing and generally available administrative 27 remedies effectively unavailable to him.” Id. If the undisputed evidence, construed in the light 28 most favorable to plaintiff, demonstrates that plaintiff did not exhaust the available administrative 1 remedies, then defendant is entitled to summary judgment. Id. at 1166. 2 Here, a two-step process was available to plaintiff to resolve health care grievances. See 3 Cal. Cod Regs. tit. 15, § 3999.225, et seq. The first step requires a grievance submitted to the 4 Health Care Grievance Office (HCGO). Id. at § 3999.227(b). If a plaintiff is dissatisfied with the 5 result of a grievance, he or she may file an appeal. Id. at § 3999.229(a). 6 Plaintiff filed three grievances addressing his claims in this action. ECF No. 53-2; 7 Declaration of D. Gouldy (Gouldy Decl) ¶¶ 7-9, Exs. 2-4. Defendant Rolland was not named in 8 any of these grievances. Plaintiff does not submit any argument explaining why defendant 9 Rolland was not named, or why the claims against her should move forward. The undisputed 10 evidence, construed in the light most favorable to plaintiff, demonstrates that plaintiff did not 11 exhaust the available administrative remedies as to defendant Rolland. Albino, 747 F.3d at 1166. 12 Thus, defendant Rolland is entitled to summary judgment and *-the claims against her should be 13 dismissed. See, e.g., Robinson v. Cryer, 2023 WL 3007344 at *6-7 (E.D. Cal. 2023) (finding that 14 administrative remedies are unexhausted against any defendant not identified in a medical 15 grievance). 16 B. Eighth Amendment Claims 17 Plaintiff’s Eighth Amendment claims for deliberate indifference to medical needs against 18 defendants Duty, Kelly, Brown, and Murray are properly exhausted. Specifically, plaintiff 19 maintains that all defendants were indifferent to his medical needs in violation of the Eighth 20 Amendment by placing him in a housing unit designed for COVID-19 positive inmates when he 21 was negative for COVID-19. ECF No. 13. Plaintiff also alleges that as a result, he contracted 22 COVID-19 and continues to suffer as a result. Id. 23 1. Undisputed Facts2 24 In response to the COVID-19 pandemic, the California Correctional Health Care Services 25 (CCHCS) promulgated Interim Guidance for the management of COVID-19 at CDCR facilities. 26 ECF No. 53-5; Declaration of J. Bassett (Bassett Decl.) ¶ 3. During the relevant time period of 27
28 2 Defendants filed a separate Statement of Undisputed Facts. ECF No. 53-1. 1 summer 2022, the CCHCS Interim Guidance in effect s*tated that sick inmates with a confirmed 2 or suspected case of COVID-19 must be isolated. In addition, inmates exposed to COVID-19 but 3 not ill must be quarantined. All inmates in isolation received twice daily nursing assessments and 4 could be released after: 1) a negative COVID-19 test and 2) the longer of fourteen days after the 5 onset of symptoms or a positive test if no symptoms, or five days after the resolution of fever 6 without the use of anti-pyretic medication. Id. at ¶ 3(a)-3(c), Ex. 1. Under the Interim Guidance, 7 prison health care providers had the sole discretion to assign or remove inmates from isolation or 8 quarantine; corrections staff did not have that authority. Id. at ¶ 4. 9 On June 16, 2022, plaintiff was seen by health care staff for a sore throat. Id. at ¶ 5. 10 According to the progress notes recording plaintiff’s visit with health care staff, plaintiff reported 11 “10/10 pain on the right side of throat [and] state[d] ‘it feels like someone choked me and pressed 12 their thumb into my neck.’” Id., Ex. 2. Plaintiff’s doctor ordered a “[r]apid flu and Covid [test, 13 and] both were negative.” Id. Nonetheless, the physician ordered plaintiff to quarantine based on 14 the “[n]eed to rule out COVID 19 infection.” Id. Plaintiff was ordered to be transferred to pre- 15 isolation in Section A of Facility C, the COVID isolation section. ECF No. 53-4; Declaration of 16 T. Murray (Murray Decl.) ¶ 4 17 On June 16, 2022, plaintiff was subsequently placed in pre-isolation in Section A of 18 Facility C, and he remained there until June 23, 2022, when he was transferred to quarantine. 19 ECF No. 13. Plaintiff’s cell was a single cell with solid walls and a solid door. Id.; Pl. Dep. 20 33:2-5, 34:10-22, 78:5-16. According to an outside consultant, there was little risk of inmates 21 contracting COVID-19 between cells. ECF No. 53-7; Declaration of M. Brown (Brown Decl.) ¶ 22 3. Whenever a cell door was opened, both inmates and staff were required to wear masks. Id. 23 Plaintiff’s claims of deliberate indifference arise from his placement in isolation from June 16-23, 24 2022, and he does not challenge any other placements. Pl. Dep. 39-50. 25 Plaintiff had contact with medical staff every day while he was in isolation. Pl. Dep. 26 59:22-60:1, 61:11-17; ECF No. 53-3; Declaration of J. Duty (Duty Decl.) ¶ 5. Around June 19 or 27 20, plaintiff told Licensed Vocational Nurse Folorunzo that he should not be in isolation because 28 of his negative COVID test. Pl. Dep. 60-61. 1 Plaintiff initiated three grievances about his time in the isolation unit. His first grievance 2 was on June 17, 2022 (Grievance 323); his second was on June 27, 2022 (Grievance 332); his 3 third was on July 8, 2022 (Grievance 352). ECF No. 53-2; Declaration of D. Gouldy (Gouldy 4 Decl.) ¶¶ 7-9. Plaintiff first tested positive for COVID-19 on July 6, 2022, thirteen days after he 5 left the isolation unit. Pl. Dep. 41. 6 2. Legal Standard 7 To succeed on an Eighth Amendment claim predicated on deliberate indifference to 8 medical need, a plaintiff must establish that: 1) he or she had a serious medical need; and 2) the 9 defendant’s response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 10 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical 11 need exists if the failure to treat the condition could result in further significant injury or the 12 unnecessary and wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may 13 be shown by the denial, delay, or intentional interference with medical treatment, or by the way in 14 which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 15 To act with deliberate indifference, a prison official must both be aware of facts from 16 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 17 draw the inference. Farmer, 511 U.S. at 837. Thus, a defendant will be liable for violating the 18 Eighth Amendment if he knows that plaintiff faces “a substantial risk of serious harm and 19 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. A physician 20 need not fail to treat an inmate altogether in order to violate that inmate’s Eighth Amendment 21 rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently 22 treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate 23 indifference in a particular case. Id. 24 It is important to differentiate common law negligence claims of malpractice from claims 25 predicated on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. 26 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 27 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 28 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 1 Cir. 2004). Rather, plaintiff must show a deliberate disregard for a known medical need. The 2 Ninth Circuit has made clear that a difference of medical opinion is, as a matter of law, 3 insufficient to establish deliberate indifference. Toguchi, 391 F.3d at 1058. 4 Because plaintiff’s allegations concern custody and housing decisions, the court also 5 reviews his allegations under the general Eighth Amendment standard applicable to non-medical 6 claims. A prison official violates the Eighth Amendment prohibition against cruel and unusual 7 punishment “only when two requirements” – one objective, one subjective – “are met.” Farmer, 8 511 U.S. at 834. Under the objective prong, the inmate must show that he is incarcerated under 9 conditions posing a substantial risk of serious harm. Id. at 833, 837. To satisfy the subjective 10 prong of the deliberate indifference standard, a plaintiff must show that that a prison official 11 “knows that inmates face a substantial risk of serious harm and disregard[s] that risk by failing to 12 take reasonable measures to abate it.” Farmer, 511 U.S. at 825. 13 3. Analysis 14 a. Objective Prong 15 Defendants do not specifically address the objective prong in their motion. ECF No. 53. 16 Nonetheless, in the interests of thoroughness, the court will do so.3 17 Under the objective prong, the inmate must show that he is incarcerated under conditions 18 posing a substantial risk of serious harm. Farmer, 511 U.S. at 833, 837. “[T]here is no question 19 that an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison 20 does not take adequate measures to counter the spread of the virus. Courts have long recognized 21 that conditions posing an elevated chance of exposure to an infectious disease can pose a 22 substantial risk of serious harm.” Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020); see 23 also Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020) (“[n]o one questions that 24 [COVID-19] poses a substantial risk of serious harm” to prisoners). 25 Here, the undisputed facts show that plaintiff was transferred to Section A Facility C, 26 designated as the COVID isolation section, when he had tested negative for COVID-19. 27 3 Defendants instead focus on their argument that plaintiff cannot meet his burden under 28 the subjective prong for numerous reasons. ECF No. 53 at 5-8. 1 Declaration of T. Murray (Murray Decl.) ¶ 4; Plaintiff’s Depo. at 32:22-24; 78:5-16; 33:2-5; 2 34:10-22. It is also undisputed that plaintiff informed a nurse that he should not be in the COVID 3 isolation section because of his negative test results, and that plaintiff subsequently tested positive 4 for COVID. Plaintiff’s Depo. at 41:1-3, 60-61. As such, plaintiff can show that he was 5 incarcerated under conditions posing a substantial risk of serious harm. See, e.g., Jones v. 6 Sherman, 2022 WL 783452, *7 (E.D. Cal. March 11, 2022), report and recommendation adopted, 7 2022 WL 4238875 (E.D. Cal. Sept. 13, 2022) (finding that “many courts have found that COVID- 8 19 poses a substantial risk of serious harm, satisfying the objective prong”). 9 b. Subjective Prong 10 For numerous reasons, defendants maintain that they were not deliberately indifferent to 11 plaintiff’s medical needs, and thus that they are entitled to summary judgment. First, defendants 12 maintain that their placement of plaintiff into Section A of Facility C complied with the 13 applicable guidance and thus as a matter of law cannot be evidence of knowledge of an excessive 14 disregard for inmate safety. 15 Plaintiff was placed into isolation after he was seen by medical staff for severe sore throat 16 pain. Bassett Decl. ¶ 5. Although plaintiff’s COVID test was negative, he was actively 17 symptomatic, and his physician ordered him quarantined based on the “[n]eed to rule out COVID 18 19 infection.” Id. at Ex. 2. The Interim Guidance in place mandated isolation of inmates with 19 confirmed or suspected cases of COVID. Id. at ¶ 3(a)-3(c), Ex. 1. 20 “As it concerns prison officials’ response to the COVID-19 pandemic, ‘[t]he key inquiry 21 is not whether prison officials perfectly responded, complied with every CDC guideline, or 22 whether their efforts ultimately averted the risk; instead the key inquiry is whether they responded 23 reasonably to the risk.’” Jones v. Pollard, 2023 WL 4728802, at *7 (S.D. Cal. July 24, 2023). 24 When a placement decision complies with applicable “[g]uidelines to limit the spread of COVID- 25 19, that decision cannot, without more, demonstrate [deliberate indifference].” Id. at *8. Here, 26 the physician’s medical decision to place plaintiff in isolation substantially complied with the 27 applicable guidance. Although plaintiff had tested negative for COVID, a negative test does not 28 guarantee lack of infection, and plaintiff was actively symptomatic with symptoms consistent 1 with COVID. Plaintiff has failed to raise a genuine issue of material fact that his approximately 2 week-long placement in a single cell with solid walls and a door, and daily interactions with 3 medical staff, constituted unreasonable behavior and disregard of an excessive risk to plaintiff’s 4 health and safety. Id.; see also Farmer, 511 U.S. at 845; McCord v. Haynes, 2022 WL 2194984, 5 at *4 (W.D. Wash. May 24, 2022), report and recommendation adopted by 2022 WL 2192944 6 (June 17, 2022) (finding that there was no showing of deliberate indifference where defendants 7 addressed and attempted to mitigate COVID-19 risks). 8 Defendants also maintain that plaintiff is unable to demonstrate deliberate indifference 9 where, as here, defendants were following the orders of medical staff in good faith. It is 10 undisputed that none of the defendants were part of plaintiff’s medical care team. It is also 11 undisputed that plaintiff’s physician ordered plaintiff to be housed in the isolation unit. Bassett 12 Decl. ¶ 5, Ex. 2. As defendants correctly point out, “[n]on-medical personnel are generally 13 entitled to rely on the opinions of medical professionals with respect to an inmate’s treatment.” 14 Goode v. Canedo, 2024 WL 1914352, at *5 (S.D. Cal. May 1, 2024) (collecting cases). In his 15 opposition to defendants’ motion for summary judgment, plaintiff relies on cases finding 16 deliberate indifference where prison officials disregarded medical advice. ECF No. 56 at 7. 17 Here, however, plaintiff was ordered into isolation by a physician and the defendants plainly did 18 not ignore medical advice.4 Under such circumstances, plaintiff cannot demonstrate that a 19 rational trier of fact would find that defendants’ compliance with the orders of medical staff 20 constituted unreasonable behavior and disregard of an excessive risk to plaintiff’s health and 21 safety. 22 Plaintiff also argues in his opposition that he repeatedly requested removal from his single 23 cell isolation placement, and that ignoring prisoners’ requests for medical attention can constitute 24 deliberate indifference. ECF No. 56 at 9. There is no doubt that failure to respond to multiple 25 4 In addition to his opposition to defendants’ motion for summary judgment, plaintiff has 26 filed a sur-reply and a supplement. ECF Nos. 61 and 67. Although plaintiff did not request or receive leave of court to file these pleadings, the court has reviewed them. They do not refute the 27 court’s conclusion that plaintiff is unable to demonstrate deliberate indifference on the part of defendants. 28 1 requests for medical attention can result in a finding of deliberate indifference. See, e.g. Jett v. 2 Penner, 439 F.3d 1091, 1048 (9th Cir. 2006). But that was not the case here. In Jett, the 3 defendant physician did not order orthopedic follow-up for plaintiff’s fracture until six months 4 after plaintiff’s injury, despite plaintiff’s repeated requests for such care. Id. at 1096-97. Under 5 such circumstances, the court found that a jury could “‘infer deliberate indifference from the fact 6 that [the doctor] knew the extent of the [the inmate’s] pain, knew the course of treatment was 7 largely ineffective, and declined to do anything more to attempt to improve [the inmate’s] 8 situation.’” Id. at 1098 (citing Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994)). In 9 addition, the court found that the case was not one involving differing medical opinions because 10 defendant physician – as well as other physicians who had seen plaintiff – recognized plaintiff’s 11 need to see an orthopedist, but did not promptly make the necessary referrals. Id. 12 Here, by contrast, none of the defendants were a part of plaintiff’s medical team who 13 ordered him into COVID isolation; rather, they followed the orders of medical professionals in 14 doing so. See Goode, 2024 WL 1914352, at *5 (finding that “[n]on-medical personnel are 15 generally entitled to rely on the opinions of medical professionals with respect to an inmate’s 16 treatment.”). In addition, as discussed supra, plaintiff’s placement complied with the applicable 17 California Correctional Health Care Services Interim Guidance, and plaintiff had daily 18 interactions with medical staff. See Jones, 2023 WL 4728802, at *7 (S.D. Cal. July 24, 2023) 19 (finding that where a prison official’s “decision designating isolation/quarantine cells rested on 20 CCHCS’ Guidelines to limit the spread of COVID-19, that decision cannot, without more, 21 demonstrate he was deliberately indifferent to Plaintiff’s health and safety.”) Finally, as he 22 requested, plaintiff was moved from his single cell isolation after eight days – in contrast to a six- 23 month delay in treatment in Jett. Under such circumstances, plaintiff cannot demonstrate a 24 genuine issue of material fact as to whether defendants’ conduct constituted deliberate 25 indifference to plaintiff’s medical needs. Thus, even accepting plaintiff’s allegations as true, and 26 viewing the evidence in the light most favorable to plaintiff, a rational trier of fact could not find 27 that plaintiff’s placement in a COVID isolation cell from June 16-June 23, 2022 violated the 28 Eighth Amendment. 1 IV. Recommendation 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion 3 || for summary judgment (ECF No. 53) be GRANTED. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 || within the specified time may waive the right to appeal the District Court's order. Turner v. 10 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 1] Daal ZBL 12 | Dated: August 7, 2025 ZAP ibbtie FeLZAEDZ 3 EDMUND F. BREN NAN UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13