(PC) Suarez v. Shirley

• Court: District Court, E.D. California
• Decided: May 3, 2021
• Docket: 1:21-cv-00085
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS SUAREZ, Case No. 1:21-cv-0085-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 H. SHIRLEY, et al., FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION 15 Defendants. FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF 16 17 (ECF No. 12)

18 FOURTEEN (14) DAY DEADLINE

20 21 Plaintiff Thomas Suarez (“Plaintiff”) is a former state prisoner proceeding pro se and in 22 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s complaint, filed on January 21, 2021, and granted Plaintiff leave to amend. Plaintiff’s 23 first amended complaint is currently before the Court for screening. (Doc. 12.) 24 I. Screening Requirement and Standard 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 28 1 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 2 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 8 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 9 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 10 To survive screening, Plaintiff’s claims must be facially plausible, which requires 11 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 12 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 13 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently out of custody. The events alleged in the complaint occurred while 17 Plaintiff was housed at Wasco State Prison (“Wasco”). Plaintiff names the following defendants: 18 (1) Dr. Olga Berkousky, Chief Medical Officer, (2) H. Carn, Head Nurse of Operations, (3) 19 Connie Gipson, D.A.I. Secretary. 20 Plaintiff claims cruel and unusual punishment and medical malpractice. Plaintiff alleges: 21 They, the nurses, put us in 12 x 12 foot holding cells with 15 or so people, no face 22 masks and from different housing units that were already sick from COVID. Contaminated us when we were sent to take blood samples. I was put in harms 23 way of life or limb deprived of basic human needs exposed to unreasonable risk & 24 serious harm. We were deprived of washing our clothes, new bed sheets & blankets, toilet paper. Got sick from COVID-19 b4. A months time. Nothing I 25 could do behind bars or in a jail cell. (Doc. 12, p. 3-4, unedited text).

26 Staff failed to take action. They are trained to protect & serve. They neglected to quarantine when they got sick & after Thanks giving – November 26, 2020. I 27 arrived 23 days prior. Nov. 3, 2020. The staff acted deliberately with indifference 28 after their thanks giving gatherings. They did not track & trace or hold their 1 employees accountable. My nose still can’t smell. My lungs are worse. (Doc. 12, p. 4, unedited text). 2

Plaintiff seeks financial compensation for pain and suffering, trauma and for lifetime of 3 injury. 4 III. Discussion 5 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 6 state a cognizable claim under 42 U.S.C. § 1983. Despite being provided relevant legal and 7 pleading standards, Plaintiff has been unable to cure the deficiencies. 8 A. Federal Rule of Civil Procedure 8 9 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 10 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 11 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 12 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation 13 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 14 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 15 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; 16 see also Twombly, 550 U.S. at 556–557. 17 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic 18 matter, the complaint does not clearly state what happened, when it happened or who was 19 involved. Plaintiff’s allegations in the amended complaint are less clear than in the original 20 complaint. Plaintiff’s allegations must be based on facts as to what happened and not 21 conclusions. Despite being informed of what must be alleged, Plaintiff attributes all COVID 22 issues to the named defendants, but does not state what each person did or did not do which 23 violated his constitutional rights. He does not identify what Defendants Berkousky, Carn or 24 Gipson did or did not do. Plaintiff has been unable to cure the deficiency 25 B. Supervisor Liability 26 Insofar as Plaintiff is attempting to sue Defendants Carn, Gipson or Berkousky, or any 27 other defendant, based solely upon her supervisory role, he may not do so. Liability may not be 28 1 imposed on supervisory personnel for the actions or omissions of their subordinates under the 2 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 3 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); 4 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 5 Supervisors may be held liable only if they “participated in or directed the violations, or 6 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 7 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 8 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an 9 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 10 know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 570. 11 Supervisory liability may also exist without any personal participation if the official implemented 12 “a policy so deficient that the policy itself is a repudiation of the constitutional rights and is the 13 moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other grounds by Farmer 14 v. Brennan, 511 U.S. 825 (1970). 15 To prove liability for an action or policy, the plaintiff “must...demonstrate that his 16 deprivation resulted from an official policy or custom established by a...policymaker possessed 17 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 18 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 19 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 20 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 21 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 22 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 23 1982). 24 Plaintiff fails to state a cognizable claim. Plaintiff does not alleges that any Defendant 25 engaged in conduct that violated his constitutional rights. Plaintiff has failed to allege direct 26 participation in the alleged violations. Despite being informed he must do so, Plaintiff has failed 27 to allege the causal link between each defendant and the claimed constitutional violation which 28 1 must be specifically alleged. He does not make a sufficient showing of any personal 2 participation, direction, or knowledge on the defendant’s part regarding any other prison officials' 3 actions. Plaintiff has not alleged that any defendant personally participated in the alleged 4 deprivations. 5 In addition, it is unclear what the policy is that is purportedly at issue. Plaintiff has failed 6 to “demonstrate that his deprivation resulted from an official policy or custom established by 7 a...policymaker possessed with final authority to establish that policy.” Supervisory defendants 8 may not generally be held liable under a respondeat superior theory. Plaintiff has been unable to 9 cure this deficiency 10 C. Deliberate Indifference to Conditions of Confinement 11 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. 12 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 13 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with 14 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 15 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 16 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. 17 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 18 1981). 19 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 20 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious." Id. (internal 21 quotation marks and citation omitted). Second, “prison officials must have a sufficiently culpable 22 state of mind,” which for conditions of confinement claims, “is one of deliberate indifference.” 23 Id. (internal quotation marks and citation omitted). Prison officials act with deliberate 24 indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at 25 837. The circumstances, nature, and duration of the deprivations are critical in determining 26 whether the conditions complained of are grave enough to form the basis of a viable Eighth 27 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the 28 1 part of a prison official is not sufficient to establish liability, but rather, the official's conduct must 2 have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 3 Extreme deprivations are required to make out a conditions of confinement claim, and 4 only those deprivations denying the minimal civilized measure of life's necessities are sufficiently 5 grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. 6 McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the deprivations are 7 critical in determining whether the conditions complained of are grave enough to form the basis 8 of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the prison official must 9 “know[ ] of and disregard[ ] an excessive risk to inmate health or safety....” Farmer, 511 U.S. at 10 837. Thus, a prison official may be held liable under the Eighth Amendment for denying humane 11 conditions of confinement only if he knows that inmates face a substantial risk of harm and 12 disregards that risk by failing to take reasonable measures to abate it. Id. at 837-45. 13 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 questions that [COVID-19] poses a 14 substantial risk of serious harm” to prisoners.). However, in order to state a cognizable Eighth 15 Amendment claim against the warden, Plaintiff must provide more than generalized allegations 16 that the warden has not done enough to control the spread. See Booth v. Newsom, No. 2:20-cv- 17 1562 AC P, 2020 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020); see Blackwell v. Covello, No. 18 2:20-CV-1755 DB P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (failure to state a claim 19 against warden for failure to adequately control the spread of COVID-19 in the prison). 20 As an initial matter, the Court notes that overcrowding, by itself, is not a constitutional 21 violation. Doty v. County of Lassen, 37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 22 F.2d at 1248-49 (noting that overcrowding itself not Eighth Amendment violation but can lead to 23 specific effects that might violate Constitution), abrogated in part on other grounds by Sandin v. 24 Conner, 515 U.S. 472 (1995); See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 25 1989) (allegations of prison overcrowding alone are insufficient to state a claim under the Eighth 26 Amendment.); see also Rhodes v. Chapman, 452 U.S. at 348-49 (double-celling of inmates by 27 itself does not inflict unnecessary or wanton pain or constitute grossly disproportionate 28 1 punishment in violation of Eighth Amendment). An overcrowding claim is cognizable only if the 2 plaintiff alleges that crowding has caused an increase in violence, has reduced the provision of 3 other constitutionally required services, or has reached a level rendering the institution no longer 4 fit for human habitation. See Balla, 869 F.2d at 471; See, e.g., Akao v. Shimoda, 832 F.2d 119, 5 120 (9th Cir. 1987) (per curiam) (as amended) (reversing district court's dismissal of claim that 6 overcrowding caused increased stress, tension, and communicable disease among inmate 7 population); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that Eighth 8 Amendment violation may occur as result of overcrowded prison conditions causing increased 9 violence, tension, and psychiatric problems). 10 Plaintiff has failed to allege any factual allegations that the defendant supervisors, Carn, 11 Gipson or Berkousky, were deliberately indifferent to COVID transmission. Plaintiff fails to 12 attribute any specific conduct to these defendants, other than that they were supervisors. As 13 explained, supra, supervisor liability is insufficient to state a cognizable claim against these defendants. Plaintiff has been unable to cure this deficiency. 14 IV. Conclusion and Order 15 Plaintiff’s amended complaint fails to state a cognizable federal claim for relief. Despite 16 being provided with relevant pleading and legal standards, Plaintiff has been unable to cure the 17 deficiencies in his complaint by amendment, and thus further leave to amend is not warranted. 18 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 19 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 20 district judge to this action. 21 Furthermore, IT IS HEREBY RECOMMENDED as follows: 22 1. The federal claims in this action be dismissed, with prejudice, based on Plaintiff’s 23 failure to state a cognizable claim upon which relief may be granted; and 24 2. The Court decline to exercise supplemental jurisdiction over Plaintiff’s purported state 25 law claim. 26

27 These Findings and Recommendation will be submitted to the United States District Judge 28 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 2 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 3 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 4 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 5 specified time may result in the waiver of the “right to challenge the magistrate’s factual 6 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 7 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED.

10 Dated: May 3, 2021 /s/ Barbara A. McAuliffe _ 11 UNITED STATES MAGISTRATE JUDGE

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