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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 ROBERT LIONEL SANFORD, Case No. 1:22-cv-01400-JLT-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 RECOMMENDING THAT PLAINTIFF’S v. 14 FEDERAL CLAIMS BE DISMISSED FOR PATRICK EATON, et al., FAILURE TO STATE A CLAIM AND 15 THAT PLAINTIFF’S STATE LAW Defendants. CLAIMS BE REMANDED TO TUOLUMNE 16 COUNTY SUPERIOR COURT 17 (ECF No. 1) 18 OBJECTIONS, IF ANY, DUE WITHIN 19 FOURTEEN (14) DAYS 20 Robert Sanford (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 21 action filed pursuant to 42 U.S.C. § 1983, which includes state law claims. This action was 22 removed from Tuolumne County Superior Court on October 31, 2022. (ECF No. 1). Plaintiff 23 generally alleges that Defendants did not respond appropriately to the threat posed by COVID- 24 19. 25 The Court screened the complaint and found “that Plaintiff fail[ed] to state any 26 cognizable federal claims. As there are no federal claims, the Court also [found] that exercise 27 of supplemental jurisdiction over Plaintiff’s state law claims is not appropriate.” (ECF No. 9, 28 1 p. 1). 2 The Court gave Plaintiff leave to file a First Amended Complaint to cure the 3 deficiencies identified by the Court. (Id. at 13-14). The Court also gave Plaintiff the option of 4 standing on his complaint, subject to the Court issuing findings and recommendations to a 5 district judge recommending dismissal of Plaintiff’s federal claims and remand of Plaintiff’s 6 state law claims consistent with the screening order. (Id. at 14). 7 On June 29, 2023, Plaintiff filed a notice, notifying the Court that he wants to stand on 8 his complaint. (ECF No. 13).1 Accordingly, for the reasons set forth below, the Court 9 recommends that Plaintiff’s federal claims be dismissed, with prejudice, for failure to state a 10 claim, and that Plaintiff’s state law claims be remanded to Tuolumne County Superior Court. 11 The parties have fourteen days from the date of service of these findings and 12 recommendations to file their objections. 13 I. SCREENING REQUIREMENT 14 The Court is required to screen complaints brought by prisoners seeking relief against a 15 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 16 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 17 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 18 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 19 § 1915A(b)(1), (2). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26
27 1 Plaintiff’s notice also includes objections to the Court’s screening order. The undersigned will not 28 address any objections raised by Plaintiff. Instead, Plaintiff should file objections to these findings and recommendations. 1 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 2 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 3 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 4 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 5 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 6 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 7 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 8 pro se complaints should continue to be liberally construed after Iqbal). 9 II. SUMMARY OF PLAINTIFF’S COMPLAINT 10 Plaintiff alleges as follows in his complaint: 11 The incidents occurred at Sierra Conservation Center (“SCC”). 12 On or about March of 2020, Gavin Newsom issued an executive order mandating 13 citizens of the State of California to stay at home and practice social distancing of six feet apart, 14 while wearing face masks and washing hands to mitigate the infection and spread of COVID- 15 19. 16 On or about April 15, 2020, Plaintiff filed a Health Care Grievance regarding the unsafe 17 dorm conditions that placed Plaintiff at a heighted exposure to COVID-19. California 18 Correctional Health Care Services was aware that Plaintiff had pre-existing medical issues that 19 placed him at a higher risk of danger regarding exposure to COVID-19 due to lack of available 20 social distancing in the severely overcrowded dorms at SCC A Yard. 21 Defendants rejected Plaintiff’s grievance, claiming that the overcrowded dorms had to 22 be addressed with a custody grievance, not a health care grievance. Plaintiff complied with the 23 directive and filed an emergency 602 Grievance on May 11, 2020. Plaintiff stated that SCC A 24 Yard and B Yard were not in compliance with the Receiver’s directive to facilitate social 25 distancing. 26 Defendants replied, stating that the average dorm at SCC houses 18 inmates. Plaintiff 27 refutes this claim made by defendant Quinn. Plaintiff replied on June 12, 2020, explaining the 28 danger that existed at SCC in Dorm 17 where Plaintiff was housed because it was severely 1 overcrowded and the SCC dorms were not in compliance with the social distancing 2 requirement. Plaintiff further stated that on May 26, 2020, there were 32 inmates housed in 3 Dorm 17. Defendant Eaton allowed his staff to deliberately overcrowd this dorm, while having 4 knowledge that this would certainly contribute to a heightened exposure to COVID-19. This 5 put Plaintiff, who is a dependent adult, at an unreasonable risk of harm with his preexisting 6 medical issues of asthma, alpha thalassemia, and anemia. 7 In Plaintiff’s response to the first level of this appeal, and the second level review, 8 Plaintiff clearly outlined the fact that SCC was insisting on placing inmates in an ultra- 9 hazardous condition of unsanitized dorms and overcrowded conditions, along with mixing 10 inmates with new arrival inmates from reception centers throughout the State. Plaintiff 11 provided a roster of inmates housed at the facility and drawn blueprints of the dorm to show 12 that Dorm 17 was not in compliance with social distancing requirements. Plaintiff further 13 stated in his response that SCC would impede the timely processing of the appeal to the third 14 level of review. Plaintiff timely filed the appeal on July 9, 2020, but did not receive a response 15 until November 2021, a whole fifteen months after Plaintiff’s emergency request. 16 Defendant Quinn was the responding Associate Warden. She signed off and approved 17 the response where it is clear that defendant Quinn was aware of the overcrowded dorms at 18 SCC, and that she deliberately ignored policy regarding social distancing in the dorms. This 19 placed Plaintiff at an unreasonable risk of being exposed to COVID-19. “Their” deliberate 20 attempt of circumventing the appeal shows how SCC was willing to go to any length to delay 21 the appeal process regarding their non-compliance with COVID-19 protocols. 22 Plaintiff was transferred from SCC on June 18, 2020, after he filed his appeals. 23 However, Plaintiff was transferred back to SCC on November 9, 2021, and he was placed back 24 in the same unsafe dorm conditions. 25 The dorms were poorly cleaned by transient inmates with no training in COVID-19 26 cleaning protocols. Additionally, there was no oversight in the dorms at SCC A Yard Dorm 15. 27 Porters that were given an assignment did not have signed job performance applications, nor 28 were they in compliance with cleaning procedures or training in accordance with California 1 Code of Regulation § 3205. 2 Despite knowing the hazard of COVID-19, that potentially infectious material may 3 contain SARS-COV-2, and that COVID-19 is airborne, on or about January 10, 2022, 4 defendant Eaton, the Warden, and defendant Quinn, failed to act and failed to train staff and 5 inmates at SCC regarding the hazard of cross contamination of soiled materials from infected 6 inmates. 7 On January 10, 2022, defendants Eaton, Quinn, and Does not yet named authorized 8 mass movements of inmates during an outbreak of COVID-19 at the facility, where Plaintiff 9 was forced to move from an already severely overcrowded dorm (Dorm 15) to Dorm 36. Dorm 10 36 was in a deplorable and unsanitized condition. There was black mold in the ceiling and 11 walls, asbestos exposed in holes in the ceiling, walls collapsing from water, rust, broken and 12 busted sinks, one toilet, leaking sinks, and inadequate ventilation. The dorm was clearly unfit 13 to house humans. 14 Plaintiff outlined the details and situation to correctional officers Pearson and 15 Satariano,2 who witnessed the deplorable unsafe dorm conditions. These correctional officers 16 said that there was nothing they could do, and they informed inmates in the dorm that they 17 would have to file a 602 and appeal it to the Warden of the facility. 18 Plaintiff filed a grievance because the unsafe conditions created a high risk of 19 contracting COVID-19. In his grievance, Plaintiff described these facts. Other inmates 20 provided sworn eyewitness testimony regarding the deplorable conditions that placed everyone 21 housed in the dorm at an unreasonable risk of danger. Defendants were aware of these dangers. 22 Plaintiff had already been exposed and infected on two different occasions at the facility 23 that he was transferred to on June 18, 2020. That facility also had overcrowded dorms and 24 practiced moving mass amounts of inmates from dorm to dorm, with no available social 25 distancing or partitions between bunks. Plaintiff was already suffering the “Long Haulers 26 Effect” due to the heightened exposure to COVID-19. 27
28 2 These correctional officers are not named as defendants in this case. 1 The conditions that Plaintiff was now deliberately subjected to in Dorm 36, which were 2 authorized by defendants Eaton and Quinn, placed Plaintiff at an unreasonable risk of being 3 exposed and infected a third time. 4 On January 24, 2022, Plaintiff was able to voice his health concerns regarding the dorm 5 conditions to defendant Quinn, who was escorting outside visitors. Plaintiff clearly pointed out 6 the obvious dangerous conditions of asbestos, falling ceilings, rust, mold everywhere on the 7 ceilings, and inadequate ventilation. While in Dorm 36, Plaintiff and the other inmates were 8 placed at an unreasonable risk of being exposed to known dangerous communicable diseases, 9 including cancer and hepatitis, as well as to airborne diseases like COVID-19, because of the 10 overcrowding. 11 On January 26, 2022, after defendant Quinn observed the obviously unsafe conditions, 12 Plaintiff and the other inmates in Dorm 36 were moved to other dorms. The twenty-eight 13 inmates in Dorm 36 were split between Dorms 22, 26, and 28. Defendants again authorized 14 movement during an outbreak of COVID-19 that was spreading throughout the facility, with 15 defendants Eaton and Quinn authorizing all the inmates in Dorm 36 to be divided up and mixed 16 in with infected inmates. This contributed to the spread of the virus. Plaintiff had already been 17 through this same situation at his previous institution of confinement. 18 Plaintiff was again subjected to a known dangerous condition of being housed in a dorm 19 with inmates that were not testing or were fake testing and not getting swabbed by staff at 20 medical. This put Plaintiff at a heightened exposure to COVID-19. Additionally, Dorm 26, 21 which is where Plaintiff was placed, was also in a deplorable condition. There was mold, poor 22 ventilation, rusted beds, and soiled mattresses. Moreover, it was unsanitized, and there was a 23 mix of healthy and infected inmates. 24 On January 28, 2022, an outbreak started spreading that infected half the inmates that 25 moved in with Plaintiff. The forced movement of inmates during an outbreak contributed to 26 the spread of COVID-19 within the facility. Social distancing was not available. Additionally, 27 there were no partitions between the bunks, which were less than three feet apart. This put 28 Plaintiff at a heighted risk of contracting COVID-19. 1 On February 14, 2022, Plaintiff contracted COVID-19 for a third time. Plaintiff has no 2 ability to smell or taste, his headaches intensified, he experiences excruciating joint pain, he 3 coughs blood, and he has memory loss. 4 Defendant Eaton failed to act in the face of a known dangerous condition. He was put 5 on notice to the facts surrounding the hazardous conditions that existed and continue to exist. 6 The dorms are severely overcrowded. Social distancing is not available, there are no partitions 7 between bunks, and SCC administrators will not remove beds in overcrowded dorms. 8 Defendant Quinn actually signed a 602 stating that the average dorm only had eighteen 9 inmates. If this were true, why not remove six bunk beds from each dorm to create room for 10 social distancing instead of having sixteen beds in each dorm that are only two and a half feet 11 apart. 12 Defendants were aware of the Executive Order (20-19 CAEO 84-20) issued in response 13 to the COVID-19 pandemic. Additionally, California Code of Regulations, Title 8, § 3205 14 defines close contact as being within six feet of a COVID-19 case for a cumulative total of 15 fifteen minutes or greater in any twenty-four-hour period. This section also clearly identifies 16 the COVID-19 hazard. 17 Plaintiff gave Defendants notice that due to the overcrowded dorms at SCC, there was 18 no possible way to create six feet of social distancing without removing double bunk beds from 19 the dorms. As social distancing was not available, Defendants should have placed partitions 20 between bunk beds, but did not. Defendants failed to act with any preventative measures at 21 SCC to prevent the spread of COVID-19 according to the COVID Prevention Plan. 22 Additionally, pursuant to Center of Disease Control Guidelines in Correctional and 23 Detention Centers, a cleaning and disinfection plan should have been in place. However, SCC 24 failed to have such a plan. There were no signed work performance sheets for porters on A 25 Facility at SCC on how to clean dorms in accordance with COVID-19 procedures, neither are 26 there supervisor reports on how these porters were trained on how to clean vents, mop floors, 27 mix cleaning solutions, clean showers, or clean bathrooms. The disinfecting and sanitizing 28 were not properly done according to COVID-19 protocols issued by the Center for Disease 1 Control. 2 Defendant Quinn denied Plaintiff’s request to remove eight beds from each dorm to 3 create six feet of social distance in every direction. 4 Plaintiff brings the following claims: Negligence, Intentional Tort, Dependent Adult 5 Abuse, Gross Negligence, Failure to Train, and cruel and unusual punishment in violation of 6 the Eighth Amendment. 7 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 8 A. Section 1983 9 The Civil Rights Act under which this action was filed provides: 10 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 11 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 12 secured by the Constitution and laws, shall be liable to the party injured in an 13 action at law, suit in equity, or other proper proceeding for redress.... 14 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 15 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 16 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 17 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 18 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 19 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 20 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 21 under color of state law, and (2) the defendant deprived him of rights secured by the 22 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 23 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 24 “under color of state law”). A person deprives another of a constitutional right, “within the 25 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 26 omits to perform an act which he is legally required to do that causes the deprivation of which 27 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 28 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 1 causal connection may be established when an official sets in motion a ‘series of acts by others 2 which the actor knows or reasonably should know would cause others to inflict’ constitutional 3 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 4 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 5 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 6 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 7 A plaintiff must demonstrate that each named defendant personally participated in the 8 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 9 connection or link between the actions of the defendants and the deprivation alleged to have 10 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 11 658, 691, 695 (1978). 12 Supervisory personnel are not liable under section 1983 for the actions of their 13 employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisory position, the causal link between the supervisory defendant and the claimed 15 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 16 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 17 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 18 a plaintiff must allege some facts that would support a claim that the supervisory defendants 19 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 20 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 21 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 22 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 23 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 24 quotation marks omitted). 25 For instance, a supervisor may be liable for his or her “own culpable action or inaction 26 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 27 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 28 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 1 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 2 B. Conditions of Confinement 3 “It is undisputed that the treatment a prisoner receives in prison and the conditions 4 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 5 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 6 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 7 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 8 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 9 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 10 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 11 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 12 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 13 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 14 642 F.2d 1129, 1132-33 (9th Cir. 1981). 15 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 16 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. 17 (citation and internal quotation marks omitted). Second, “a prison official must have a 18 sufficiently culpable state of mind,” which for conditions of confinement claims “is one of 19 deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials 20 act with deliberate indifference when they know of and disregard an excessive risk to inmate 21 health or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are 22 critical in determining whether the conditions complained of are grave enough to form the basis 23 of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). 24 Mere negligence on the part of a prison official is not sufficient to establish liability, but rather, 25 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 26 F.3d 1124, 1128 (9th Cir. 1998). 27 The Court finds that Plaintiff fails to state an Eighth Amendment conditions of 28 confinement claim against any defendant. 1 Many courts have found that COVID-19 poses a substantial risk of serious harm, 2 satisfying the objective prong: 3 It is clear that COVID-19 poses a substantial risk of serious harm. See Plata v. Newsom, 445 F.Supp.3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one 4 questions that [COVID-19] poses a substantial risk of serious harm” to 5 prisoners.); see also Williams v. Dirkse, No. 1:21-cv-00047-BAM (PC), 2021 U.S. Dist. LEXIS 103673, at *22–23 (E.D. Cal. June 2, 2021) (“The 6 transmissibility of the COVID-19 virus in conjunction with [the prisoner plaintiff’s] living conditions are sufficient to satisfy that ‘conditions put the 7 plaintiff at substantial risk of suffering serious harm.’ ”); accord Sanford v. 8 Eaton, No. 1:20-CV-00792-BAM(PC), 2021 WL 3021447, at *7 (E.D. Cal. July 16, 2021); Benitez v. Sierra Conservation, Center, et al., No. 1:21-CV-00370 9 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021) (The transmissibility of the COVID-19 virus in conjunction with Plaintiff's living 10 conditions, which he alleges were overcrowded and poorly ventilated, are 11 sufficient to satisfy the objective prong). 12 Johnston v. CDCR Health Care, 2021 WL 5921461, at *5 (E.D. Cal. Dec. 15, 2021) (alterations 13 in original), report and recommendation adopted, 2022 WL 183432 (E.D. Cal. Jan. 20, 2022). 14 Accordingly, the Court finds that Plaintiff sufficiently alleges that he was subjected to a 15 serious risk of harm. “However, in order to state a cognizable Eighth Amendment claim 16 against the warden, associate wardens and the other defendants named, Plaintiff must provide 17 more than generalized allegations that the warden, associate wardens and other defendants have 18 not done enough regarding overcrowding to control the spread.” Sanford v. Eaton, 2021 WL 19 1172911, at *6 (E.D. Cal. Mar. 29, 2021). See also McKissick v. Gastelo, 2021 WL 2895679, 20 at *5 (C.D. Cal. July 9, 2021) (“[T]o state a cognizable Eighth Amendment claim, Plaintiff 21 must provide more than generalized allegations that Defendants have not done enough to 22 enforce six-feet social and living distancing, or provided sufficient cleaning supplies, in order 23 to control the spread of COVID-19.”). “The key inquiry is not whether Defendants perfectly 24 responded, complied with every CDC guideline, or whether their efforts ultimately averted the 25 risk; instead, the key inquiry is whether they responded reasonably to the risk.” Sanford, 2021 26 WL 1172911, at *7 (internal quotation marks omitted). 27 However, Plaintiff fails to sufficiently allege that any defendant failed to respond 28 \\\ 1 reasonably to the risk of COVID-19.3 Moreover, Plaintiff’s complaint alleges that prison 2 administrators failed to follow general guidance from the CDC regarding COVID-19, such as 3 social distancing. But Plaintiff acknowledges that social distancing was not feasible in 4 Plaintiff’s prison housing situation. At the relevant time, Plaintiff was housed in dormitory 5 housing that did not allow for such distancing. To state a violation of his constitutional rights, 6 it is not enough for Plaintiff to allege a violation of general guidelines, especially by a prison 7 with limitations on what measures it can undertake given its facilities and confinement 8 requirements. 9 Further, Plaintiff alleges that at least some protective measures were taken. While 10 Plaintiff complains about how well the testing worked, Plaintiff does appear to allege that 11 inmates were being tested for COVID-19. Additionally, while Plaintiff alleges that it was not 12 done well, Plaintiff does allege that the dorms were cleaned. Thus, while the prison did not 13 implement all recommended measures to protect against COVID-19, Plaintiff’s allegations 14 show that the prison did attempt to limit the spread of COVID-19. While such measures may 15 have fallen short of what the CDC or Plaintiff recommended, they show concern and action — 16 not deliberate indifference to Plaintiff’s health and safety. 17 Moreover, many of Plaintiff’s allegations are conclusory. For example, Plaintiff alleges 18 that defendant Eaton allowed his staff to deliberately overcrowd the dorm in which Plaintiff 19 was housed in 2020, but there are no factual allegations supporting this conclusory assertion. 20 Plaintiff also generally alleges a failure to sanitize according to protocol, but he provides no 21 factual allegations regarding how the cleaning that occurred was deficient or how the deficient 22 cleaning subjected Plaintiff to a serious risk of harm. Plaintiff also complains generally about 23 the inability to social distance in the dorms, but he includes little to no factual allegations 24 regarding his own inability to social distance while incarcerated at SCC. Plaintiff also alleges 25 that Defendants failed to enact any measures at SCC to prevent the spread of COVID-19 26 27 3 Plaintiff does not appear to bring an Eighth Amendment claim based on the “deplorable” conditions in Dorm 36. Moreover, even if he did, he fails to sufficiently allege that any defendant acted with deliberate 28 indifference. According to Plaintiff, every inmate was removed from Dorm 36 within two days after Plaintiff was able to show defendant Quinn the conditions in that dorm. 1 according to the COVID Prevention Plan, but he includes almost no factual allegations 2 regarding what preventative measures should have been enacted under the Plan but were not.4 3 He also fails to sufficiently allege how each defendant was responsible for failing to enact 4 measures pursuant to this plan. Finally, Plaintiff alleges that “SCC” mixed inmates with new 5 arrivals from reception centers. However, Plaintiff fails to include factual allegations 6 suggesting that this mixing of inmates posed a serious risk to Plaintiff, such as, that the new 7 arrivals were not put in quarantine or tested prior to (or after) the transfer. Plaintiff also fails to 8 allege whether Plaintiff himself was ever placed with the new arrivals or how any defendant’s 9 actions or inactions were responsible for the mixing of inmates. 10 Based on the foregoing, Plaintiff fails to sufficiently allege that Defendants acted with 11 deliberate indifference to Plaintiff’s serious medical needs regarding COVID-19 or disregarded 12 an excessive risk to Plaintiff’s health. 13 Finally, as to the Doe defendants, Plaintiff includes little to no factual allegations 14 regarding anything that these defendants did or failed to do that violated his constitutional 15 rights. 16 Accordingly, based on the foregoing, the Court finds that Plaintiff fails to state an 17 Eighth Amendment conditions of confinement claim against any defendant. 18 C. Supplemental Jurisdiction 19 Plaintiff brings state law claims, including for Negligence, Dependent Adult Abuse, and 20 Gross Negligence. Because the Court has found at the screening stage that Plaintiff fails to 21 state any cognizable federal claims, the Court finds that the exercise of supplemental 22 jurisdiction over Plaintiff’s state law claims is not appropriate. 28 U.S.C. § 1367(c)(3); Acri v. 23 Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“The Supreme Court has stated, 24 and we have often repeated, that ‘in the usual case in which all federal law claims are 25 eliminated before trial, the balance of factors ... will point towards declining to exercise 26 jurisdiction over the remaining state-law claims’”) (alteration in original) (citation omitted). 27 28 4 Plaintiff does complain about the failure to place partitions between beds, but he fails to include allegations regarding any other preventative measures in the Plan. 1 IV. CONCLUSION AND RECOMMENDATIONS 2 The Court finds that Plaintiff's complaint fails to state any cognizable federal claims, 3 || and that exercise of supplemental jurisdiction over Plaintiffs state law claims is not 4 || appropriate. 5 The Court previously provided Plaintiff with applicable legal standards, explained why 6 || Plaintiff's complaint failed to state a federal claim, explained why exercise of supplemental 7 || jurisdiction is not appropriate, and gave Plaintiff leave to file a First Amended Complaint, but 8 || Plaintiff chose to stand on his complaint. Accordingly, the Court finds that granting further 9 || leave to amend would be futile. 10 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 11 1. Plaintiff's federal claims be dismissed, with prejudice, for failure to state a claim; 12 2. Plaintiffs state law claims be remanded to Tuolumne County Superior Court; and 13 3. The Clerk of Court be directed to take the necessary action to remand this case to 14 Tuolumne County Superior Court and to close the case. 15 These findings and recommendations are submitted to the United States district judge 16 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 17 || (14) days after being served with these findings and recommendations, any party may file 18 || written objections with the Court. Such a document should be captioned “Objections to 19 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 20 || served and filed within fourteen (14) days after service of the objections. The parties are 21 || advised that failure to file objections within the specified time may result in the waiver of rights 22 ||on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 23 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 25 || Dated: _ July 5, 2023 [Je hoy —— 26 UNITED STATES MAGISTRATE JUDGE 27 28 14