1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DESMOND JONES, No. 2:21-cv-1603-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 JOSEPH BICK, 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. In addition to filing a complaint and an amended complaint1 (ECF Nos. 1 & 8), 19 he has filed an application to proceed in forma pauperis (ECF No. 2) and a motion to order 20 service on defendants (ECF No. 5). 21 Application to Proceed In Forma Pauperis 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26
27 1 Prior to filing the amended complaint, plaintiff filed a motion to amend. ECF No. 4. Plaintiff’s motion was unnecessary because he was free to amend his complaint “once as a matter 28 of course” under Rule 15 of the Federal Rules of Civil Procedures. See Fed. R. Civ. P 15(a)(1). 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff’s amended complaint, which supersedes the original, alleges the following: (1) 3 California Department of Corrections and Rehabilitation (“CDCR”) Health Care Director Joseph 4 Bick was deliberately indifferent to plaintiff’s high risk of complications if infected with SARS- 5 CoV-2-RNA when he approved a “mass quarantine movement policy” for the purpose of 6 attaining herd immunity among the prison population (ECF No. 8 at 4); (2) California Men’s 7 Colony (“CMC”) Chief Medical Executive Dr. Johannes Harr, exposed plaintiff to substantial 8 harm when he executed Bick’s policy on or around December 20, 2020 and failed to provide 9 plaintiff with a “rapid test” following plaintiff’s “probable December 28th 2020 positive test 10 result” (id. at 4-5); (3) on August 21, 2020, plaintiff’s primary care provider, Dr. Tyler Campbell 11 was deliberately indifferent to plaintiff’s need for Ensure and failed to monitor plaintiff’s white 12 blood cell count during plaintiff’s “probable infection . . . with COVID-19” from December 28, 13 2020 to January 11, 2020 (id. at 7); and (4) on August 21, 2020, registered dietician nurse Ladon 14 Silva was deliberately indifferent o plaintiff’s need for Ensure to prevent plaintiff’s chronic 15 weight loss. (id.). 16 Plaintiff’s claims are too vague to survive screening.2 First, it is not clear whether 17 plaintiff contracted COVID-19 and if so, whether he was symptomatic. To establish a 18 constitutional violation “based on a failure to prevent harm, the inmate must [first] show that he is 19 incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 20 U.S. 825, 834 (1994). COVID-19 of course, poses a substantial risk of serious harm. Plata v. 21 Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID- 22 19] poses a substantial risk of serious harm” to prisoners.). Plaintiff, however, does not clearly 23 allege whether he suffered serious harm. Second, plaintiff does not describe Bick’s “mass 24 quarantine movement policy” or otherwise show – through specific allegations –the deliberate 25 indifference of any defendant. Liability arises only where a prison official “knows that inmates 26 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 27 2 Plaintiff’s request for an order directing service of the complaint (ECF No. 5) is 28 therefore denied at this time. 1 measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Several courts have held 2 that generalized allegations that supervisory prison officials did not do enough to control the 3 spread of COVID-19 are insufficient to state an Eighth Amendment claim. See Booth v. Newsom, 4 No. 2:20-cv-1562-AC P, 2020 U.S. Dist. LEXIS 215148, (E.D. Cal. Nov. 17, 2020); Blackwell v. 5 Covello, No. 2:20-cv-1755-DB P, 2021 U.S. Dist. LEXIS 45226 (E.D. Cal. Mar. 10, 2021). 6 Finally, it is not clear whether the COVID claims against Bick and Haar can be properly brought 7 in the same action as the claims against Campbell and Silva regarding plaintiff’s weight loss and 8 need for Ensure.3 These claims seemingly encompass discrete events and separate defendants, 9 rendering them ill-suited to proceed in a single suit. Plaintiff’s complaint will be dismissed with 10 leave to amend.
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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 DESMOND JONES, No. 2:21-cv-1603-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 JOSEPH BICK, 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. In addition to filing a complaint and an amended complaint1 (ECF Nos. 1 & 8), 19 he has filed an application to proceed in forma pauperis (ECF No. 2) and a motion to order 20 service on defendants (ECF No. 5). 21 Application to Proceed In Forma Pauperis 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26
27 1 Prior to filing the amended complaint, plaintiff filed a motion to amend. ECF No. 4. Plaintiff’s motion was unnecessary because he was free to amend his complaint “once as a matter 28 of course” under Rule 15 of the Federal Rules of Civil Procedures. See Fed. R. Civ. P 15(a)(1). 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff’s amended complaint, which supersedes the original, alleges the following: (1) 3 California Department of Corrections and Rehabilitation (“CDCR”) Health Care Director Joseph 4 Bick was deliberately indifferent to plaintiff’s high risk of complications if infected with SARS- 5 CoV-2-RNA when he approved a “mass quarantine movement policy” for the purpose of 6 attaining herd immunity among the prison population (ECF No. 8 at 4); (2) California Men’s 7 Colony (“CMC”) Chief Medical Executive Dr. Johannes Harr, exposed plaintiff to substantial 8 harm when he executed Bick’s policy on or around December 20, 2020 and failed to provide 9 plaintiff with a “rapid test” following plaintiff’s “probable December 28th 2020 positive test 10 result” (id. at 4-5); (3) on August 21, 2020, plaintiff’s primary care provider, Dr. Tyler Campbell 11 was deliberately indifferent to plaintiff’s need for Ensure and failed to monitor plaintiff’s white 12 blood cell count during plaintiff’s “probable infection . . . with COVID-19” from December 28, 13 2020 to January 11, 2020 (id. at 7); and (4) on August 21, 2020, registered dietician nurse Ladon 14 Silva was deliberately indifferent o plaintiff’s need for Ensure to prevent plaintiff’s chronic 15 weight loss. (id.). 16 Plaintiff’s claims are too vague to survive screening.2 First, it is not clear whether 17 plaintiff contracted COVID-19 and if so, whether he was symptomatic. To establish a 18 constitutional violation “based on a failure to prevent harm, the inmate must [first] show that he is 19 incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 20 U.S. 825, 834 (1994). COVID-19 of course, poses a substantial risk of serious harm. Plata v. 21 Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID- 22 19] poses a substantial risk of serious harm” to prisoners.). Plaintiff, however, does not clearly 23 allege whether he suffered serious harm. Second, plaintiff does not describe Bick’s “mass 24 quarantine movement policy” or otherwise show – through specific allegations –the deliberate 25 indifference of any defendant. Liability arises only where a prison official “knows that inmates 26 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 27 2 Plaintiff’s request for an order directing service of the complaint (ECF No. 5) is 28 therefore denied at this time. 1 measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Several courts have held 2 that generalized allegations that supervisory prison officials did not do enough to control the 3 spread of COVID-19 are insufficient to state an Eighth Amendment claim. See Booth v. Newsom, 4 No. 2:20-cv-1562-AC P, 2020 U.S. Dist. LEXIS 215148, (E.D. Cal. Nov. 17, 2020); Blackwell v. 5 Covello, No. 2:20-cv-1755-DB P, 2021 U.S. Dist. LEXIS 45226 (E.D. Cal. Mar. 10, 2021). 6 Finally, it is not clear whether the COVID claims against Bick and Haar can be properly brought 7 in the same action as the claims against Campbell and Silva regarding plaintiff’s weight loss and 8 need for Ensure.3 These claims seemingly encompass discrete events and separate defendants, 9 rendering them ill-suited to proceed in a single suit. Plaintiff’s complaint will be dismissed with 10 leave to amend. 11 Leave to Amend 12 Plaintiff is cautioned that any amended complaint must identify as a defendant only 13 persons who personally participated in a substantial way in depriving him of his constitutional 14 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 15 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 16 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 17 include any allegations based on state law that are so closely related to his federal allegations that 18 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 19 ///// 20
21 3 It is well settled that a claimant may not proceed with various unrelated claims against 22 separate defendants: 23 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party 24 asserting a claim to relief as an original claim, counterclaim, cross- claim, or third-party claim, may join, either as independent or as 25 alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.’ Thus multiple claims against a 26 single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” 27
28 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 1 The amended complaint must also contain a caption including the names of all defendants. 2 Fed. R. Civ. P. 10(a). 3 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 4 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 5 multiple defendants. Id. 6 Any amended complaint must be written or typed so that it so that it is complete in itself 7 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 8 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 9 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 10 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 11 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 12 1967)). 13 Any amended complaint should be as concise as possible in fulfilling the above 14 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 15 background which has no bearing on his legal claims. He should also take pains to ensure that his 16 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 17 and organization. Plaintiff should carefully consider whether each of the defendants he names 18 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 19 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 20 Conclusion 21 Accordingly, it is ORDERED that: 22 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 23 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 24 in accordance with the notice to the California Department of Corrections and Rehabilitation filed 25 concurrently herewith; 26 3. Plaintiff’s motion to amend (ECF No. 4) is DENIED as unnecessary; 27 4. Plaintiff’s amended complaint (ECF No. 8) is DISMISSED with leave to amend 28 within 30 days from the date of service of this order; 1 5. Plaintiffs motion for an order directing service of the complaint on defendants (ECF 2 || No. 5) is DENIED; and 3 6. Failure to comply with any part of this this order may result in dismissal of this action. 4 || DATED: December 6, 2021. tid, PDEA 6 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28