1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS ANDRE GARNER, Case No. 2:23-cv-00494-WBS-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 RICK HILL, et al., 15 Defendants. 16 17 Defendants Rick Hill, the warden of Folsom State Prison, and Folsom State Prison 18 removed this action from Sacramento Superior Court on March 15, 2023. ECF No. 1. Plaintiff 19 Marcus Garner is a state inmate proceeding without counsel in this civil rights action brought 20 under 42 U.S.C. § 1983. In his complaint, he alleges that defendants failed to adequately protect 21 him from contracting COVID-19. These allegations are not sufficient to state a claim. I will give 22 plaintiff an opportunity to file an amended complaint. 23 Screening and Pleading Requirements 24 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 25 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 26 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 27 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 28 1 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 2 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 3 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 4 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 5 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 7 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 8 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 9 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 10 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 11 n.2 (9th Cir. 2006) (en banc) (citations omitted). 12 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 13 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 14 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 15 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 16 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 17 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 18 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 19 Analysis 20 Plaintiff’s complaint alleges that Folsom State Prison and warden Hill violated his Eighth 21 and Fourteenth Amendment rights.1 ECF No. 1-2 at 5, 9. Plaintiff alleges that the prison has 22 failed to mitigate his risk of contracting COVID a second time, after he contracted the disease in 23 1 Plaintiff styles his claims as arising under both the Eights and Fourteenth Amendments. 24 See ECF No. 1-2 at 5. The Fourteenth Amendment’s due process clause applies to persons in custody prior to conviction. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 25 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). Since plaintiff has not shown that he was in custody prior to conviction, he has not established that the Fourteenth Amendment 26 protections apply to his claims. See Cole v. Sinclair, No. 3:21-cv-05089-RSM-BAT, 2021 WL 27 5889377, at *7 (W.D. Wash. Nov. 8, 2021). Additionally, plaintiff has not alleged other claims under the Fourteenth Amendment. Thus, I review plaintiff’s claims under the Eighth 28 Amendment. 1 August 2020 while at the prison. Id. at 8-10. He states that he suffers from several underlying 2 medical conditions that put him at heightened risk of suffering greater complications from 3 COVID. Id. at 10. He additionally alleges that the conditions at the prison are unsanitary; 4 specifically, he alleges that in June 2020 a prison block was put under quarantine and tested for 5 COVID, however, those inmates were allowed, by the warden, to use the dining hall before 6 receiving their test results. Id. Plaintiff complains that those inmates should have been fed in 7 their cells. Id. Plaintiff attached to his complaint several healthcare grievances and 8 accompanying responses, his medical records, declarations from other inmates, daily program 9 status reports, court documents for a different matter, and more. 10 Plaintiff’s complaint fails to state a claim. There is no question that COVID poses a 11 substantial risk of serious harm to inmates. Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. 12 Cal. 2020) (“[N]o one questions that [COVID-19] poses a substantial risk of serious harm” to 13 prisoners). The question is whether plaintiff alleges that a defendant’s actions or inactions 14 demonstrated deliberate indifference to that risk of harm. Peyton v. Cates, No. 1:22-cv-00151- 15 JLT-EPG (PC), 2022 WL 1430752, at *6 (E.D. Cal. May 5, 2022) (explaining that a plaintiff 16 alleging an Eighth Amendment claim must allege “sufficient facts to satisfy the subjective 17 prong,” meaning the plaintiff must allege that the defendant “acted with deliberate indifference by 18 disregarding a serious risk to his health or safety”). “The key inquiry is not whether Defendants 19 perfectly responded, complied with every [COVID] CDCR guideline, or whether their efforts 20 ultimately averted the risk; instead, the key inquiry is whether they ‘responded reasonably to the 21 risk.’” Burgess v. Newsom, No. 1:21-cv-00077-SAB (PC), 2021 WL 4061611, at *4 (E.D. Cal. 22 Sept. 7, 2021) (quoting Stevens v. Carr, No. 20-C-1735, 2021 WL 39542, at *4 (E.D. Wis. Jan. 5, 23 2021). 24 While plaintiff alleges that he contracted COVID at the prison previously and is 25 concerned about contracting the disease again, he has not demonstrated that the prison failed to 26 take steps necessary to address the spread of the disease. Sanford v. Eaton, No. 1:20-cv-00792- 27 BAM (PC), 2021 WL 1172911, at *6 (E.D. Cal. Mar. 29, 2021) (explaining that “in order to state 28 a cognizable Eighth Amendment claim against the warden, associate wardens and the other 1 defendants named, Plaintiff must provide more than generalized allegations that the warden, 2 associate wardens and other defendants have not done enough regarding overcrowding to control 3 the spread” of COVID-19). Furthermore, he does not allege that the prison engaged in any 4 particular wrongdoing or that it took specific actions suggesting that it was deliberately 5 indifferent to his serious medical needs.
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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 MARCUS ANDRE GARNER, Case No. 2:23-cv-00494-WBS-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 RICK HILL, et al., 15 Defendants. 16 17 Defendants Rick Hill, the warden of Folsom State Prison, and Folsom State Prison 18 removed this action from Sacramento Superior Court on March 15, 2023. ECF No. 1. Plaintiff 19 Marcus Garner is a state inmate proceeding without counsel in this civil rights action brought 20 under 42 U.S.C. § 1983. In his complaint, he alleges that defendants failed to adequately protect 21 him from contracting COVID-19. These allegations are not sufficient to state a claim. I will give 22 plaintiff an opportunity to file an amended complaint. 23 Screening and Pleading Requirements 24 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 25 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 26 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 27 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 28 1 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 2 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 3 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 4 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 5 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 7 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 8 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 9 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 10 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 11 n.2 (9th Cir. 2006) (en banc) (citations omitted). 12 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 13 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 14 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 15 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 16 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 17 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 18 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 19 Analysis 20 Plaintiff’s complaint alleges that Folsom State Prison and warden Hill violated his Eighth 21 and Fourteenth Amendment rights.1 ECF No. 1-2 at 5, 9. Plaintiff alleges that the prison has 22 failed to mitigate his risk of contracting COVID a second time, after he contracted the disease in 23 1 Plaintiff styles his claims as arising under both the Eights and Fourteenth Amendments. 24 See ECF No. 1-2 at 5. The Fourteenth Amendment’s due process clause applies to persons in custody prior to conviction. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 25 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). Since plaintiff has not shown that he was in custody prior to conviction, he has not established that the Fourteenth Amendment 26 protections apply to his claims. See Cole v. Sinclair, No. 3:21-cv-05089-RSM-BAT, 2021 WL 27 5889377, at *7 (W.D. Wash. Nov. 8, 2021). Additionally, plaintiff has not alleged other claims under the Fourteenth Amendment. Thus, I review plaintiff’s claims under the Eighth 28 Amendment. 1 August 2020 while at the prison. Id. at 8-10. He states that he suffers from several underlying 2 medical conditions that put him at heightened risk of suffering greater complications from 3 COVID. Id. at 10. He additionally alleges that the conditions at the prison are unsanitary; 4 specifically, he alleges that in June 2020 a prison block was put under quarantine and tested for 5 COVID, however, those inmates were allowed, by the warden, to use the dining hall before 6 receiving their test results. Id. Plaintiff complains that those inmates should have been fed in 7 their cells. Id. Plaintiff attached to his complaint several healthcare grievances and 8 accompanying responses, his medical records, declarations from other inmates, daily program 9 status reports, court documents for a different matter, and more. 10 Plaintiff’s complaint fails to state a claim. There is no question that COVID poses a 11 substantial risk of serious harm to inmates. Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. 12 Cal. 2020) (“[N]o one questions that [COVID-19] poses a substantial risk of serious harm” to 13 prisoners). The question is whether plaintiff alleges that a defendant’s actions or inactions 14 demonstrated deliberate indifference to that risk of harm. Peyton v. Cates, No. 1:22-cv-00151- 15 JLT-EPG (PC), 2022 WL 1430752, at *6 (E.D. Cal. May 5, 2022) (explaining that a plaintiff 16 alleging an Eighth Amendment claim must allege “sufficient facts to satisfy the subjective 17 prong,” meaning the plaintiff must allege that the defendant “acted with deliberate indifference by 18 disregarding a serious risk to his health or safety”). “The key inquiry is not whether Defendants 19 perfectly responded, complied with every [COVID] CDCR guideline, or whether their efforts 20 ultimately averted the risk; instead, the key inquiry is whether they ‘responded reasonably to the 21 risk.’” Burgess v. Newsom, No. 1:21-cv-00077-SAB (PC), 2021 WL 4061611, at *4 (E.D. Cal. 22 Sept. 7, 2021) (quoting Stevens v. Carr, No. 20-C-1735, 2021 WL 39542, at *4 (E.D. Wis. Jan. 5, 23 2021). 24 While plaintiff alleges that he contracted COVID at the prison previously and is 25 concerned about contracting the disease again, he has not demonstrated that the prison failed to 26 take steps necessary to address the spread of the disease. Sanford v. Eaton, No. 1:20-cv-00792- 27 BAM (PC), 2021 WL 1172911, at *6 (E.D. Cal. Mar. 29, 2021) (explaining that “in order to state 28 a cognizable Eighth Amendment claim against the warden, associate wardens and the other 1 defendants named, Plaintiff must provide more than generalized allegations that the warden, 2 associate wardens and other defendants have not done enough regarding overcrowding to control 3 the spread” of COVID-19). Furthermore, he does not allege that the prison engaged in any 4 particular wrongdoing or that it took specific actions suggesting that it was deliberately 5 indifferent to his serious medical needs. Burgess, 2021 WL 4061611, at *4 (“The bare 6 allegations of the existence of [COVID] and the contraction of [COVID] simply are not enough to 7 state a claim against any defendant for deliberate indifference.”); Blackwell v. Covello, No. 2:20- 8 cv-01755-DB (P), 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (concluding that “in order to 9 state a cognizable Eighth Amendment claim against the warden plaintiff must provide more than 10 generalized allegations that the warden has not done enough to control the spread” of COVID). 11 Plaintiff’s allegation that one prison block was tested and placed under isolation, but allowed to 12 use the dining hall, does not demonstrate that the either defendant failed to take steps appropriate 13 to address the disease. See Lucero-Gonzalez v. Kline, 464 F. Supp. 3d 1078, 1090 (D. Ariz. 2020) 14 (finding that the “[t]he very fact” that the defendants enacted policies to respond to COVID 15 “supports that they have not been subjectively indifferent to the risks posed by COVID-19” to 16 inmates). 17 I will grant plaintiff a chance to amend his complaint before recommending that this 18 action be dismissed. If plaintiff decides to file an amended complaint, the amended complaint 19 will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th 20 Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 21 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 22 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 23 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 24 defendant’s involvement in sufficient detail. The amended complaint should be titled “First 25 Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 26 amended complaint, I will recommend that this action be dismissed. 27 Accordingly, it is ORDERED that: 28 1. Defendant’s request for screening, ECF No. 3, is granted. 1 2. Within twenty-one days from the service of this order, plaintiff must either file an 2 | amended complaint or advise the court he wishes stand by his current complaint. If he selects the 3 | latter option, I will recommend that this action be dismissed. 4 3. Failure to comply with this order may result in the dismissal of this action. 5 4. The clerk’s office is directed to send plaintiff a complaint form. 6 7 IT IS SO ORDERED.
Dated: _ April 23, 2023 q——— 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE
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