1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SALVADOR LOPEZ, No. 2:21-cv-02380-DJC-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SINGH PRAVEEN, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. ECF No. 1. This case proceeds on an Eighth Amendment claim against 19 defendant Praveen based on alleged deliberate indifference to plaintiff’s risk of becoming 20 infected with Covid-19. ECF Nos. 7 & 17. Defendant moved for summary judgment (ECF No. 21 32) and on March 27, 2024, the district judge concluded that genuine disputes of material fact 22 preclude summary judgment.1 ECF No. 51. Specifically, the district judge found that there are 23 genuine disputes over whether the defendant knew or should have known that he had Covid-19 24 symptoms and risked transmitting the disease to plaintiff, and whether the defendant took 25 reasonable and appropriate action in light of those symptoms, or instead disregarded the risk of 26 harm he posed to plaintiff. ECF No. 51 at 5. The district judge also found a genuine factual 27 1 That ruling declined to follow findings and a recommendation (ECF No. 32) that the 28 motion be granted. ECF No. 45. 1 dispute as to causation. Accordingly, the matter was referred back to the magistrate judge to 2 consider defendant’s argument that he is entitled to qualified immunity. 3 For the reasons set forth below, it is recommended that defendant’s motion for summary 4 judgment on the basis of qualified immunity be denied. 5 I. The Complaint 6 Plaintiff alleges that, at all relevant times, defendant Praveen operated the canteen on the 7 Facility A yard at Mule Creek State Prison (MCSP). ECF No. 1 at 10. In November 2020, 8 plaintiff was working at the canteen, and defendant was his supervisor. Id. at 14, ¶ 17. 9 According to the complaint, defendant had “flu-like symptoms,” including red eyes and a runny 10 nose, and did not wear a face mask or other protective equipment. Id. Defendant allegedly told 11 plaintiff he was not reporting his illness because he didn’t want someone else running the canteen 12 in his absence. Id. at 14, ¶ 18. On November 19, 2020, defendant reported to work but was sent 13 home because he had tested positive for Covid-19. Id., ¶ 19. Plaintiff was moved to quarantine 14 housing and, on November 23, 2020, tested positive for Covid-19. Id., ¶¶ 20-21. 15 II. Legal Standards 16 A. Summary Judgment under Rule 56 17 Summary judgment is appropriate when it is demonstrated that there “is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 20 “citing to particular parts of materials in the record….” Fed. R. Civ. P. 56(c)(1)(A). In resolving 21 the summary judgment motion, the evidence of the opposing party is to be believed. See 22 Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed 23 before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 24 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 25 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 26 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 27 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 28 show that there is some metaphysical doubt as to the material facts.... Where the record taken as 1 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 2 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 3 B. Qualified Immunity 4 Qualified immunity protects government officials from civil liability where “their conduct 5 does not violate clearly established statutory or constitutional rights of which a reasonable person 6 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). A 7 defendant is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the 8 official violated a statutory or constitutional right, and (2) that the right was “clearly established” 9 at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “Qualified 10 immunity gives government officials breathing room to make reasonable but mistaken judgments 11 about open legal questions.” Id. at 743. 12 Showing the unlawfulness of the conduct was “clearly established” requires a showing 13 that “at the time of the officer’s conduct, the law was sufficiently clear that every reasonable 14 official would understand that what he is doing is unlawful.” Id. (citation and internal quotation 15 marks omitted); see also Kisela v. Hughes, 540 U.S. 100, 105 (2018) (per curiam) (“An officer 16 ‘cannot be said to have violated a clearly established right unless the right's contours were 17 sufficiently definite that any reasonable official in the defendant’s shoes would have understood 18 that he was violating it.’” (citation omitted)). “While there does not have to be ‘a case directly on 19 point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’” 20 Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021) (alteration in original) (quoting 21 Wesby, 138 S. Ct. at 590). 22 The Supreme Court has warned courts not to define clearly established law “at too high a 23 level of generality.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (per curiam); Kisela, 540 24 U.S. at 104. “[T]he farther afield existing precedent lies from the case under review, the more 25 likely it will be that the officials’ acts will fall within that vast zone of conduct that is perhaps 26 regrettable but is at least arguably constitutional.” Hamby v. Hammond, 821 F.3d 1085, 1095 27 (9th Cir. 2016). But “officials can still be on notice that their conduct violates established law 28 even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that 1 “a general constitutional rule already identified in the decisional law may apply with obvious 2 clarity to the specific conduct in question, even though ‘the very action in question has [not] 3 previously been held unlawful’” (alteration in original) (quoting United States v. Lanier, 520 U.S. 4 259, 271 (1997)). Whether such a clearly established right exists is “a question of law” for the 5 court to decide. Morales v. Fry, 873 F.3d 817, 819 (9th Cir. 2017). 6 III. Factual Background 7 In November 2020, plaintiff was assigned as an inmate canteen worker in the canteen at 8 Facility A. DSUF 19. He worked Monday through Friday from November 1, 2020 to November 9 18, 2020. DSUF 20, 21. 10 During this time, various restrictions related to Covid-19 were in place, and all inmates 11 and staff members were required to wear masks. DSUF 4, 5. Prison employees were tested 12 multiple times per week for Covid-19. DSUF 12. In November 2020, employees at MCSP who 13 tested positive for Covid-19 were required to isolate at home and not return to work for at least 10 14 days.
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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 SALVADOR LOPEZ, No. 2:21-cv-02380-DJC-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SINGH PRAVEEN, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. ECF No. 1. This case proceeds on an Eighth Amendment claim against 19 defendant Praveen based on alleged deliberate indifference to plaintiff’s risk of becoming 20 infected with Covid-19. ECF Nos. 7 & 17. Defendant moved for summary judgment (ECF No. 21 32) and on March 27, 2024, the district judge concluded that genuine disputes of material fact 22 preclude summary judgment.1 ECF No. 51. Specifically, the district judge found that there are 23 genuine disputes over whether the defendant knew or should have known that he had Covid-19 24 symptoms and risked transmitting the disease to plaintiff, and whether the defendant took 25 reasonable and appropriate action in light of those symptoms, or instead disregarded the risk of 26 harm he posed to plaintiff. ECF No. 51 at 5. The district judge also found a genuine factual 27 1 That ruling declined to follow findings and a recommendation (ECF No. 32) that the 28 motion be granted. ECF No. 45. 1 dispute as to causation. Accordingly, the matter was referred back to the magistrate judge to 2 consider defendant’s argument that he is entitled to qualified immunity. 3 For the reasons set forth below, it is recommended that defendant’s motion for summary 4 judgment on the basis of qualified immunity be denied. 5 I. The Complaint 6 Plaintiff alleges that, at all relevant times, defendant Praveen operated the canteen on the 7 Facility A yard at Mule Creek State Prison (MCSP). ECF No. 1 at 10. In November 2020, 8 plaintiff was working at the canteen, and defendant was his supervisor. Id. at 14, ¶ 17. 9 According to the complaint, defendant had “flu-like symptoms,” including red eyes and a runny 10 nose, and did not wear a face mask or other protective equipment. Id. Defendant allegedly told 11 plaintiff he was not reporting his illness because he didn’t want someone else running the canteen 12 in his absence. Id. at 14, ¶ 18. On November 19, 2020, defendant reported to work but was sent 13 home because he had tested positive for Covid-19. Id., ¶ 19. Plaintiff was moved to quarantine 14 housing and, on November 23, 2020, tested positive for Covid-19. Id., ¶¶ 20-21. 15 II. Legal Standards 16 A. Summary Judgment under Rule 56 17 Summary judgment is appropriate when it is demonstrated that there “is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 20 “citing to particular parts of materials in the record….” Fed. R. Civ. P. 56(c)(1)(A). In resolving 21 the summary judgment motion, the evidence of the opposing party is to be believed. See 22 Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed 23 before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 24 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 25 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 26 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 27 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 28 show that there is some metaphysical doubt as to the material facts.... Where the record taken as 1 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 2 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 3 B. Qualified Immunity 4 Qualified immunity protects government officials from civil liability where “their conduct 5 does not violate clearly established statutory or constitutional rights of which a reasonable person 6 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). A 7 defendant is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the 8 official violated a statutory or constitutional right, and (2) that the right was “clearly established” 9 at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “Qualified 10 immunity gives government officials breathing room to make reasonable but mistaken judgments 11 about open legal questions.” Id. at 743. 12 Showing the unlawfulness of the conduct was “clearly established” requires a showing 13 that “at the time of the officer’s conduct, the law was sufficiently clear that every reasonable 14 official would understand that what he is doing is unlawful.” Id. (citation and internal quotation 15 marks omitted); see also Kisela v. Hughes, 540 U.S. 100, 105 (2018) (per curiam) (“An officer 16 ‘cannot be said to have violated a clearly established right unless the right's contours were 17 sufficiently definite that any reasonable official in the defendant’s shoes would have understood 18 that he was violating it.’” (citation omitted)). “While there does not have to be ‘a case directly on 19 point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’” 20 Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021) (alteration in original) (quoting 21 Wesby, 138 S. Ct. at 590). 22 The Supreme Court has warned courts not to define clearly established law “at too high a 23 level of generality.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (per curiam); Kisela, 540 24 U.S. at 104. “[T]he farther afield existing precedent lies from the case under review, the more 25 likely it will be that the officials’ acts will fall within that vast zone of conduct that is perhaps 26 regrettable but is at least arguably constitutional.” Hamby v. Hammond, 821 F.3d 1085, 1095 27 (9th Cir. 2016). But “officials can still be on notice that their conduct violates established law 28 even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that 1 “a general constitutional rule already identified in the decisional law may apply with obvious 2 clarity to the specific conduct in question, even though ‘the very action in question has [not] 3 previously been held unlawful’” (alteration in original) (quoting United States v. Lanier, 520 U.S. 4 259, 271 (1997)). Whether such a clearly established right exists is “a question of law” for the 5 court to decide. Morales v. Fry, 873 F.3d 817, 819 (9th Cir. 2017). 6 III. Factual Background 7 In November 2020, plaintiff was assigned as an inmate canteen worker in the canteen at 8 Facility A. DSUF 19. He worked Monday through Friday from November 1, 2020 to November 9 18, 2020. DSUF 20, 21. 10 During this time, various restrictions related to Covid-19 were in place, and all inmates 11 and staff members were required to wear masks. DSUF 4, 5. Prison employees were tested 12 multiple times per week for Covid-19. DSUF 12. In November 2020, employees at MCSP who 13 tested positive for Covid-19 were required to isolate at home and not return to work for at least 10 14 days. DSUF 14. 15 Defendant worked at MCSP, supervising inmate-employees in the canteen. DSUF 27. 16 On or around November 20, 2020, defendant learned that he had tested positive for Covid-19. 17 DSUF 28. Per prison policy, he did not report to work from November 20, 2020 to November 30, 18 2020. DSUF 30. 19 A nasal swab was taken from plaintiff on November 23, 2020, and on November 27, 20 2020, he tested positive for Covid-19. DSUF 22. 21 In his March 26, 2024 order, the district judge summarized the “genuine dispute of fact” 22 as to plaintiff’s Eighth Amendment claim as follows: 23 In his Declaration, Plaintiff attests that despite exhibiting Covid-19 symptoms including coughing, runny nose, and red eyes, Defendant reported to work at the 24 prison and worked in close proximity to Plaintiff without wearing proper protective equipment such as a face mask. Plaintiff and Defendant worked 25 together on Friday, November 13, 2020, and Monday through Wednesday, November 16 through 18, 2020. On November 17, 2020, Defendant took a 26 Covid-19 test which returned a positive test result on either November 19 or 20, 2020, confirming that Defendant was infected with Covid-19 as of at least 27 November 17, 2020. 28 ECF No. 51 at 2 (emphasis added, record citations omitted). The district judge determined that 1 plaintiff’s “core allegations are that Defendant flouted the prison’s protocols and disregarded the 2 risk of exposing Plaintiff to Covid before Defendant received a positive test result.” ECF No. 51 3 at 3. 4 IV. Discussion 5 Here, the district judge has already found that triable issues of fact preclude summary 6 judgment on the question of whether defendant’s actions of reporting to work and without a face 7 mask2 knowing he had symptoms deliberately created an unreasonable risk of infecting plaintiff. 8 Thus, the remaining question is whether the right in question was clearly established in November 9 2020. 10 To be clearly established, “[t]he contours of the right must be sufficiently clear that a 11 reasonable official would understand that what [the official] is doing violates that right.” 12 Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean, however, that “official 13 action is protected by qualified immunity unless the very action in question has previously been 14 held unlawful, but it is to say that in light of the pre-existing law the unlawfulness must be 15 apparent.” Id. 16 The Supreme Court has long established the right of prisoners to protection from 17 heightened exposure to serious communicable diseases. See, e.g., Helling v. McKinney, 509 U.S. 18 25, 33 (1993) (holding that the Eighth Amendment prevents prison officials from being 19 “deliberately indifferent to the exposure of inmates to a serious, communicable disease”). “For 20 purposes of qualified immunity, that legal duty need not be litigated and then established disease 21 by disease or injury by injury.” Estate of Clark v. Walker, 865 F.3d 544, 553 (7th Cir. 2017). 22 COVID-19 is such a serious communicable disease. Accordingly, multiple courts in this Circuit 23 2 One court has concluded that a correctional officers’ disregard of prison Covid-19 24 protocols by failing to wear face masks in 2020 did not amount to an Eighth Amendment violation. See, e.g., Munoz v. Gipson, 2024 WL 1182860, *13 (N.D. Cal. March 19, 2024). That 25 court found that “even if [defendant] had not followed the institution’s procedures and protocols, such actions would amount at most to negligence, which is insufficient to demonstrate that 26 [defendant] was deliberately indifferent to [plaintiff’s] health or safety.” Id. Here, the district 27 judge has already found that triable issues of fact exist as to whether the defendant’s conduct violated Eighth Amendment. Furthermore, the claim of deliberative indifference here includes 28 conduct more culpable than simply failing to wear a mask. 1 have concluded that “the law is clearly established that individuals in government custody have a 2 constitutional right to be protected against a heightened exposure to serious, easily communicable 3 diseases, and . . . this clearly established right extends to protection from COVID-19.” Maney v. 4 Brown, 2020 WL 7364977, at *6 (D. Or. Dec. 15, 2020) (denying qualified immunity to prison 5 officials because inmates had “a clearly established constitutional right to protection from a 6 heightened exposure to COVID-19, despite the novelty of the virus”); Jones v. Sherman, 2022 7 WL 783452, at *10 ( “[T]his clearly established right extends to protection from COVID-19.”); 8 Jones v. Pollard, 2022 WL 706926, at *9 (S.D. Cal. Mar. 9, 2022) (“Existing precedent clearly 9 establishes the right of an individual in custody to protection from heightened exposure to a 10 serious communicable disease.”); Hernandez v. Covello, 2024 WL 643874, at *5 (E.D. Cal. Feb. 11 15, 2024) (denying defendant’s motion for qualified immunity because inmates’ clearly 12 established right to be protected from serious, communicable diseases extends to protection from 13 COVID-19). This court finds those cases persuasive and concludes that the right to be protected 14 against a heightened exposure to serious, easily communicable diseases, including COVID-19, 15 was clearly established at the time of plaintiff’s infection in November 2020. 16 Here, although defendant had not yet tested positive for Covid-19,3 plaintiff’s declaration 17 attests that the defendant was coming to work the week of November 9 through November 13, 18 2020 displaying symptoms of Covid-19, including puffy red eyes, continuous running nose, 19 continuous cough and exhaustion. ECF No. 40 at 1. If plaintiff’s testimony is credited, the 20 defendant obviously was aware of his symptoms. According to plaintiff, the defendant stated that 21 he was not reporting his symptoms because he did not want to be excluded from work due to 22 prison protocols. ECF No. 40 at 18-19. Plaintiff also attests that during that time the defendant 23 refused to wear a face mask, all the while being in the presence of plaintiff and other inmates. 24 ECF No. 40 at 18. If plaintiff’s account of the facts is credited, the defendant’s conduct not only 25 manifests deliberate indifference, it shows that the defendant was aware of, but disregarded 26 protocols designed to protect inmates from an infection of Covid-19, in violation of a clearly 27
28 3 Defendant received his positive test result on November 20, 2020. 1 | established right to protection from a heightened exposure to “serious, communicable diseases.” 2 || Helling v. McKinney, 509 U.S. at 33. 3 Although the defendant may dispute plaintiffs version, the conflicting accounts of what 4 || occurred cannot be resolved on summary judgment. 5 Accordingly, it is HEREBY RECOMMENDED THAT: 6 Defendant’s motion for summary judgment (ECF No. 32) on the ground of qualified 7 || immunity be DENIED; 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 || DATED: August 27, 2024
17 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28