Welch v. Daniels

• Court: District Court, D. Nevada
• Decided: June 23, 2025
• Docket: 3:22-cv-00557
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 KENTRELL D. WELCH, Case No. 3:22-cv-00557-MMD-CLB

7 Plaintiff, ORDER v. 8 CHARLES DANIELS, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Kentrell Welch, who is an inmate in the custody of the Nevada 13 Department of Corrections (“NDOC”), brings this civil-rights action under 42 U.S.C. § 14 1983 to redress constitutional violations he claims he suffered while he was incarcerated 15 at Ely State Prison (“ESP”). (ECF No. 1.) The Court screened Plaintiff’s Second Amended 16 Complaint (ECF No. 7 (“SAC”)) and found that Plaintiff states a colorable Eighth 17 Amendment claim for deliberate indifference to unsafe prison conditions related to 18 COVID-19 exposure at ESP. (ECF No. 9 (“Screening Order”).) Defendants1 filed a motion 19 to dismiss. (ECF No. 21 (“Motion”).) Plaintiff responded to the Motion (ECF Nos. 25, 26) 20 and Defendants replied (ECF No. 27). Before the Court is United States Magistrate Judge 21 Carla L. Baldwin’s Report and Recommendation (“R&R”), recommending that the Court 22 deny the Motion. (ECF No. 28.) Defendants timely objected to the R&R (ECF No. 29 23 (“Objection”)), and Welch responded (ECF No. 33 (“Response”)). For the reasons 24 explained below, the Court overrules the Objection and adopts the R&R in full. 25

26 1Defendant NDOC employees include Sean Donahue, Daniel Featherly, Cade Herring, Curtis Rigney, Corey Rowley, Alexander Werner, and Daniel Wheeler. (ECF No. 27 21.) In the Screening Order. the Court allowed claims to proceed against several additional NDOC Defendants who did not move to dismiss. (ECF No. 9.) Those 28 Defendants are not addressed in this order. 1 II. DISCUSSION 2 This Court “may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 4 timely objects to a magistrate judge’s R&R, the Court must “make a de novo determination 5 of those portions of the R&R to which objection is made.” Id. Defendants here object to 6 the R&R, which recommends denial of their motion to dismiss under Fed. R. Civ. P. 7 12(b)(6), on three bases: (1) the R&R improperly relied on the Screening Order as a 8 substitute for analyzing Defendants’ specific legal arguments outlined in the Motion; (2) 9 the Screening Order and R&R incorrectly determined that Welch states a plausible Eighth 10 Amendment claim to overcome the first prong of the qualified immunity test; and (3) the 11 R&R conducted the “clearly established law” prong of the qualified immunity analysis at 12 too high a level of generality. (ECF No. 29 at 3-6.) The Court first addresses Defendants’ 13 argument as to reliance on the Screening Order and finds the R&R did not improperly rely 14 on the previous screening of the SAC under 28 U.S.C. § 1915A(a). Next, even setting 15 aside that the Screening Order already appropriately addressed some aspects of the 16 analysis, the Court considers that Defendants essentially object to the R&R’s 17 recommendation that they are not entitled to qualified immunity in its entirety and finds, 18 on de novo review, that qualified immunity does not warrant dismissing Welch’s claims. 19 Dismissal of a complaint for failure to state a claim upon which relief can be granted 20 is provided for in Federal Rule of Civil Procedure 12(b)(6), the same standard the Court 21 applies under 28 U.S.C. § 1915(e)(2) when reviewing the adequacy of a prisoner 22 complaint or an amended complaint. Review under Rule 12(b)(6) is essentially a ruling 23 on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). 24 Dismissal for failure to state a claim is proper only if the plaintiff clearly cannot prove any 25 set of facts in support of the claim that would entitle them to relief. See Morley v. Walker, 26 2The Court incorporates by reference Judge Baldwin’s description of the 27 background of the case and recitation of pertinent allegations in the SAC, provided in the R&R. (ECF No. 28 at 1-2.) 28 1 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true 2 all factual allegations stated in the complaint and construes them in the light most 3 favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 4 Allegations are “liberally construed” in favor of the pro se plaintiff at this stage. See 5 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Generally, a district 6 court is permitted to “look only at the face of the complaint to decide a motion to dismiss.” 7 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). While the 8 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 9 provide more than mere labels, conclusions, or a formulaic recitation of the claim’s 10 elements. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 A. The R&R’s Reliance on Screening Order 12 Defendants first object to the R&R on the basis that Judge Baldwin should have 13 analyzed specific legal arguments in their Motion “regarding the first prong of qualified 14 immunity and the plausibility of Welch’s Eighth Amendment claim,” rather than relying on 15 the Court’s Screening Order to find Welch plausibly states an Eighth Amendment claim. 16 (ECF No. 29 at 3.) The Court overrules this ground asserted in the Objection and 17 additionally finds the R&R adequately analyzed Defendants’ arguments. 18 1. Approaches to post-screening motions to dismiss 19 District courts have adopted differing approaches when handling Rule 12(b)(6) 20 motions to dismiss complaints that were already screened under 28 U.S.C. § 1915A(b). 21 See Baldhosky v. Hubbard, No. 1:12-cv-01200-LJO-MJS PC, 2017 WL 68098, at *2 (E.D. 22 Cal. Jan. 5, 2017). The Court finds no mandatory authority favoring one approach over 23 another but finds persuasive the recurring reasoning across approaches that courts need 24 not revisit duplicative arguments on previously decided issues. 25 One approach utilizes the law of the case doctrine, which precludes a court “from 26 reconsidering an issue previously decided by the same court, or a higher court in the 27 identical case.” Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (quoting United 28 States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)). District courts following 1 this approach find “a screening order which utilized the same legal standard upon which 2 a subsequent motion to dismiss relies necessarily implicates the law of the case doctrine.” 3 Green v. Chakotos, No. 1:11-cv-01611-LJO-DLB PC, 2014 WL 3563314, at *3 (E.D. Cal. 4 July 18, 2014). To be excepted from the law of the case doctrine, the party seeking 5 dismissal must articulate grounds for their Rule 12(b)(6) motion “in light of a screening 6 order finding the complaint stated a claim.” Id. (citing Ingle, 408 F.3d at 594 (finding that 7 clear error in the earlier decision or an intervening change in the law are among the 8 exceptions to the law of the case doctrine which might merit revisiting a prior 9 determination)). 10 Under a second similar approach, a post-screening motion for dismissal under 11 12(b)(6) is treated as a motion for reconsideration. Multiple district courts, including district 12 courts within the Ninth Circuit, have found “a Rule 12(b)(6) motion to dismiss is almost 13 never an appropriate response when the Court has already screened a prisoner complaint 14 pursuant to 28 U.S.C. § 1915A(b).” Perez v. Ryan, No. CV 19-05602-PHX-MTL (JFM), 15 2021 WL 100855, at *2 (D. Ariz. Jan. 12, 2021). See also, e.g., White v. Nunley, No. 4:23- 16 CV-P130-JHM, 2024 WL 1904339, at *1 (W.D. Ky. Apr. 30, 2024); Thompson v. Yates, 17 No. 1:06-cv-00763-RCC, 2011 WL 1753149, at *1 (E.D. Cal. May 6, 2011). Consequently, 18 these courts find that “after the Court has screened a prisoner’s complaint . . . a Rule 19 12(b)(6) motion to dismiss should be granted only if the defendants can convince the 20 Court that reconsideration is appropriate. Reconsideration is appropriate only if the district 21 court (1) is presented with newly discovered evidence, (2) committed clear error or the 22 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 23 law.” Id. (quoting School Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 24 1263 (9th Cir. 1993)). See also Manon v. Hall, No. 3:14-CV-1510 (VLB) 2015 WL 25 8081945, at *3 (D. Conn. Dec. 7, 2015) (finding a party should never “seek dismissal of 26 claims that the Court has determined to be non-frivolous” if the sole basis for seeking 27 dismissal is that the moving party disagrees with the prior finding). 28 By contrast, other district courts follow a third approach and find that a 12(b)(6) 1 motion must be heard on its merits because 28 U.S.C. § 1915(e)’s “screening and 2 dismissal procedure is cumulative of, not a substitute for, any subsequent Rule 3 12(b)(6) motion that the defendant may choose to bring.” Teahan v. Wilhelm, 481 4 F.Supp.2d 1115, 1119 (S.D. Cal. 2007). But even then, at least one district court adopting 5 this approach has emphasized to defendants that they are “cautioned, in the future, to 6 move for dismissal wisely” when the Court has already screened the pleading. Martindale 7 v. Kirkegard, No. CV-15-00111-H-DLC-JTJ, 2016 WL 4275997, at *1 n.2 (D. Mont. July 8 15, 2016). 9 2. The R&R’s finding as to Welch’s Eighth Amendment claim 10 While there is no binding Ninth Circuit precedent requiring the Court adopt one of 11 these approaches, the Court agrees with courts who adopt the first and second 12 approaches. They apply the same reasoning—with which the Court agrees—counseling 13 against duplicative consideration of the same issues addressed at the screening stage. 14 The Supreme Court has recognized that “the PLRA mandated early judicial screening to 15 reduce the burden of prisoner litigation on the courts.” Jones v. Bock, 549 U.S. 199, 223 16 (2007) (emphasis added). As this Court has recognized in other contexts involving 17 screening under 28 U.S.C. § 1915, Defendants’ preferred result would increase, not 18 reduce, the burden on federal courts. See Olausen v. Sgt. Murguia, No. 3:13-cv-00288- 19 MMD-VPC, 2014 WL 6065622 (ECF No. 96) (D. Nev. Nov. 12, 2014). The Court 20 concludes that Judge Baldwin did not erroneously rely on the Screening Order’s finding 21 that Welch plausibly states an Eighth Amendment claim and agrees with the R&R that, 22 “because the District Court has already determined that Welch states a colorable Eighth 23 Amendment claim against Defendants, and Defendants provide no additional basis for 24 dismissal at this early stage of litigation,” Defendants’ Motion to Dismiss should be denied. 25 (ECF No. 28 at 5-6.) In fact, Judge Baldwin essentially followed the law of the case as 26 articulated in the Screening Order. 27 Defendants’ Motion articulates no grounds which would invoke an exception to the 28 law of the case doctrine or require reconsideration of the Screening Order’s findings. 1 Nowhere in the Motion did Defendants support a claim the Court erred in its Screening 2 Order or that a change in law since the Screening Order necessitates reexamining the 3 SAC’s plausibility. Moreover, any additional facts or evidence outside the SAC that 4 Defendants say undermine Welch’s Eighth Amendment claim’s plausibility—like those 5 related to COVID-19 testing and screening protocols for prison employees—fall outside 6 the scope of a Rule 12(b)(6) motion to dismiss, which looks to “the face of the complaint.” 7 Van Buskirk, 284 F.3d at 980. Thus, the Court rejects Defendants’ contention that Judge 8 Baldwin is required to analyze their arguments on the plausibility of Welch’s Eighth 9 Amendment claims when the Screening Order already contains that analysis. 10 3. Application to first prong of the qualified immunity analysis 11 When the scope of Defendants’ Objection is narrowed from the overall plausibility 12 of Welch’s Eighth Amendment claim to whether the R&R adequately considered their 13 arguments on the first prong of the qualified immunity test, Defendants still fail to show 14 Judge Baldwin’s analysis was inadequate. Because qualified immunity is “immunity from 15 suit rather than a mere defense to liability,” it may be raised early to allow a defendant to 16 avoid trial costs and the “burdens of broad-reaching discovery.” Mitchell v. Forsyth, 472 17 U.S. 511, 526 (1985). However, the Ninth Circuit has held that “determining claims of 18 qualified immunity at the motion-to-dismiss stage raises special problems for legal 19 decision making.” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). Moreover, though 20 qualified immunity can be raised on a Rule 12(b)(6) motion, the Court need not duplicate 21 its review of both prongs of the qualified immunity test when it has already evaluated the 22 first prong during screening. See C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 23 2014) (providing that the first prong of the qualified immunity analysis is “whether an 24 official violated a constitutional right”); Perez v. Ryan, No. CV 19-05602-PHX-MTL (JFM), 25 2021 WL 100855, at *3 (D. Ariz. Jan. 12, 2021) (finding that the “first prong of the qualified 26 immunity analysis is satisfied” for a motion to dismiss if the court’s prior screening order 27 found the plaintiff inmate sufficiently stated an Eighth Amendment claim). 28 Here, Defendants correctly note that screening orders do not explicitly account for 1 qualified immunity arguments, and the Screening Order did not address whether Welch’s 2 claimed harm was clearly established to satisfy the qualified immunity analysis’ second 3 prong. However, the Screening Order contains the Court’s thorough discussion of the first 4 prong of the qualified immunity analysis, including examination of the prong’s objective 5 and subjective requirements. (ECF No. 9 at 6-8.) The Court found Welch plausibly pleads 6 a violation of his constitutional rights. (Id.) Judge Baldwin adopted this finding and 7 analysis in the R&R. (ECF No. 28 at 5-6.) In sum, without Defendants articulating some 8 additional basis in the Motion, the Court is not required and declines to reexamine what 9 the Court already scrutinized during screening. 10 B. Qualified Immunity 11 To determine whether qualified immunity warrants granting dismissal in a case 12 regarding deliberate indifference to unsafe prison conditions, the Court applies the 13 12(b)(6) plausibility standard to a two-prong test—“(1) whether the official violated a 14 constitutional right and (2) whether the constitutional right was clearly established.” City 15 of Sonora, 769 F.3d at 1022 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). 16 District courts have discretion to address these prongs in any order. See Pearson, 555 17 U.S. at 236. Though the Court evaluated the first prong in the Screening Order, as 18 described above, and the R&R addressed the second prong, the Court conducts de novo 19 review of both prongs to address Defendants’ objections to the R&R’s recommendation 20 on qualified immunity. 21 1. Constitutional violation 22 Under the first prong, a plaintiff must meet two requirements to establish that an 23 official violated a constitutional right, one objective and the other subjective. See Farmer 24 v. Brennan, 511 U.S. 825, 834 (1994). Welch satisfies both here to plausibly claim 25 Defendants violated his constitutional rights. 26 a. Objective requirement 27 To meet the objective requirement, a plaintiff must plausibly allege that a defendant 28 exposed him involuntarily to a risk which is “contrary to current standards of decency for 1 anyone” to be exposed to. Hampton v. California, 83 F.4th 754, 766 (9th Cir. 2023) (citing 2 Helling v. McKinney, 509 U.S. 25, 33 (1993)). For purposes of the Motion only, 3 Defendants concede that the risk of involuntary exposure to COVID-19 fulfills this 4 requirement. (ECF No. 29 at 11.) The Court need not further analyze this requirement. 5 b. Subjective requirement 6 The subjective requirement asks whether defendant prison officials were 7 deliberately indifferent to inmate health or safety. See Farmer, 511 U.S. at 834. Deliberate 8 indifference “entails something more than mere negligence,” but “something less” than 9 purposefully causing harm or acting knowing that harm will result. Id. at 835. Defendants 10 contend that Welch fails to demonstrate deliberate indifference on three grounds, each of 11 which fail. First, Defendants dispute that Welch has pleaded they are the actual and 12 proximate cause of his harm. (ECF No. 29 at 11.) Second, they argue Welch does not 13 plausibly claim Defendants knew of and disregarded a risk of exposing Welch to COVID- 14 19. (Id. at 11-12.) Third, Defendants contend that even if they violated prison policy on 15 personal protective equipment (“PPE”), this does not constitute a deliberate indifference 16 to Welch’s Eighth Amendment rights. (Id. at 12.) The Court addresses each of these 17 arguments in order. 18 First, Defendants argue that Welch does not adequately establish they are the 19 actual and proximate cause of his injury because Welch never plausibly alleged “any 20 Defendant ever exposed Welch to COVID-19.”3 (ECF No. 29 at 11). This argument is 21 unconvincing considering the plain reading of the SAC. Welch alleges Defendants 22 “exhibited reckless disregard” by keeping him in the same unit with “highly symptomatic” 23 inmates and refusing to provide or wear PPE, “leaving him as medically vulnerable as a 24 sitting duck.” (ECF No. 7 at 7.) He alleges he and other inmates were not provided cloth 25 masks to reduce the spread of COVID-19 until June 2020, and were not provided N-95 26 masks until November 2021. (Id.) Defendants Featherly, Herring, Rowley, Werner, and

27 3Welch must show that Defendants’ deliberate indifference is the actual and proximate cause of his injury. See Lemire v. California Dept. of Corrections and 28 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013). 1 Wheeler “deliberately refused to adorn N-95 masks” and PPE while working on Welch’s 2 unit daily, “recklessly exposing” Welch to COVID-19. (Id.) Welch alleges he daily suffers 3 “shortness of breath, fatigue, lack of strength” in his legs, hands, and body, while also 4 facing three pre-existing chronic conditions. (Id. at 8.) He further alleges that Defendant 5 Werner refused to wear an N-95 mask or PPE while distributing mail and meals in the 6 prison unit, and Defendant Wheeler would tell Welch to “shut the fuck up” if Welch asked 7 Wheeler to wear an N-95 mask or to instruct “his subordinate Werner to put on a mask 8 per facility memo.” (Id.) He alleges Defendant Rowley multiple times rebuffed Welch’s 9 requests that Rowley wear an N-95 mask while escorting Welch to legal visits, telling 10 Welch to refuse visits if he did not want an escort. (Id.) Welch further alleges Defendant 11 Herring would tell Welch to “shut the fuck up” and “no, I will not” when Welch asked him 12 to wear an N-95 mask during “feedings.” (Id.) Meanwhile, Defendants Wheeler and 13 Featherly “refused to reprimand Herring to adorn safety gear.” (Id.). And Welch alleges 14 that Defendants Rigney and Donahue would not wear N-95 masks or PPE while serving 15 food or transporting or escorting inmates. (Id.) 16 These allegations are sufficient at this stage to support that Defendants’ refusal to 17 wear N-95 masks and PPE and/or relocate Welch away from COVID-19-positive inmates 18 was the actual and proximate cause of his exposure to COVID-19. (Id. at 7-9.) Defendants 19 seemingly dispute causation on the basis that Defendants followed prison employee 20 COVID-19 testing and screening protocols, also arguing Welch does not explicitly claim 21 that Defendants infected his neighboring inmates with COVID-19. (ECF No. 29 at 11-12.) 22 But the risk of a prisoner’s harm can come from multiple sources. See Farmer, 511 U.S. 23 at 843. Defendants could plausibly expose Welch to COVID-19 by not wearing PPE 24 and/or knowingly keeping Welch near COVID-19-infected inmates. Whether COVID-19 25 screening and testing protocols for prison employees eliminated the risk of Defendants 26 exposing Welch to COVID-19 is a factual dispute for later resolution. 27 Second, Welch plausibly claims Defendants knew of and disregarded the risk of 28 exposing him to COVID-19. To be deliberately indifferent to an inmate’s Eighth 1 Amendment rights, an official must know or infer “that a substantial risk of harm exists.” 2 Id. at 837. “A factfinder may conclude that a prison official knew of a substantial risk from 3 the very fact that the risk was obvious.” Id. at 842. See also, e.g., Frost v. Agnos, 152 4 F.3d 1124, 1129-30 (9th Cir. 1998) (finding that an inmate using crutches who never 5 informed prison officials of his difficulty carrying his lunch tray did not face “obvious 6 enough” risk to demonstrate prison officials’ deliberate indifference to his future injury). 7 Defendants argue that they could not know they exposed Welch to COVID-19 8 because they underwent frequent COVID-19 screening protocols. (ECF No. 29 at 11-12.) 9 But unlike in Frost, Welch informed Defendants Herring, Rowley, and Wheeler of his risk 10 of harm—Welch explicitly requested they wear PPE to avoid exposing him to COVID-19. 11 (ECF No. 7 at 8.) And importantly, Welch clearly alleges that Defendants violated existing 12 prison policy regarding PPE. (Id.) Welch also alleges he was not provided an N-95 mask 13 until November 2022. (Id. at 7.) Thus, Welch plausibly contends that Defendants wore no 14 PPE in violation of prison policy, at a time when Welch had less protective PPE. 15 Liberally construing the allegations and drawing all reasonable inferences in 16 Welch’s favor, Welch’s deficient PPE, the prison policy mandating Defendants to wear 17 PPE, Welch’s involuntary proximity to COVID-19-positive inmates, Welch’s own 18 admonitions to Defendants about masking, and the general societal consensus about 19 COVID-19’s dangerousness—which Defendants concede—plausibly alerted Defendants 20 to an obvious risk of exposing Welch to COVID-19 and suggest that Defendants 21 deliberately disregarded this obvious risk. “If masks and protective equipment were 22 available, the choice not to use them would reflect disregard for prisoner safety.” 23 Hampton, 83 F.4th at 767. Moreover, Welch claims Defendants responded to his requests 24 that they follow and enforce the PPE policy with refusals and unmodified behavior. (ECF 25 No. 7 at 8.) 26 Third, Welch plausibly claims Defendants disregarded his Eighth Amendment 27 rights—not just prison PPE policy, as Defendants insist. The subjective analysis requires 28 a prison official to be deliberately indifferent to a violation of an inmate’s Eighth 1 Amendment rights, not just a violation of prison policy. See Cousins v. Lockyer, 568 F.3d 2 1063, 1070 (9th Cir. 2009). It would be insufficient for Welch to base his claim solely on 3 Defendants violating ESP or NDOC policy by failing to adorn PPE. See id. Rather, Welch 4 must plausibly allege Defendants were deliberately indifferent to his underlying 5 constitutional right to protection from exposure to serious disease. See id. Defendants’ 6 argument here intersects with the second prong of the qualified immunity analysis, which 7 evaluates whether the claimed constitutional right is clearly established law. For the 8 reasons outlined below on the second prong, Welch’s claims implicate a right clearly 9 established under the Eighth Amendment since 1993 and go beyond a mere violation of 10 prison policy. 11 In sum, Welch plausibly alleges that Defendants were deliberately indifferent in 12 violation of the Eighth Amendment when they refused to wear PPE and exposed Welch 13 to COVID-19. 14 2. Clearly-established right 15 Under the second prong of the qualified immunity analysis, the Court asks whether 16 the constitutional right the prison officials allegedly violated was “clearly established at 17 the time of the violation.” Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019). The 18 burden of proof rests with the plaintiff to show that the right was so clearly established 19 under the Eighth Amendment that the official knew or should have known they were 20 violating the Constitution. See Carley v. Aranas, 103 F.4th 653, 660 (9th Cir. 2024). A 21 precedent “case directly on point” is not required to make a right clearly established, but 22 “existing precedent must have placed the statutory or constitutional question beyond 23 debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 24 The failure to provide “protection from infectious disease” is “firmly established in 25 our constitutional law” as an Eighth Amendment claim. Parsons v. Ryan, 754 F.3d 657, 26 664, 676 (9th Cir. 2014). The Eighth Amendment requires prison officials to reasonably 27 protect inmates from exposure to serious disease, not just actual infection. See Helling, 28 509 U.S. at 33. In Helling, the right was first applied to an inmate involuntarily exposed to 1 secondhand smoke. See 509 U.S. at 33. Courts have subsequently found that this right 2 applies when, for example, an inmate is exposed to asbestos without sufficient protective 3 gear. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). In addition, a prison 4 official violates the Eighth Amendment if they are deliberately indifferent to a “lack of 5 adequate ventilation and air flow undermin[ing] the health of inmates and the sanitation 6 of” the prison. Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985). 7 Here, Defendants claim the R&R applies an inmate’s Eighth Amendment right to 8 protection from exposure to serious disease at too high a level of generality. (ECF No. 29 9 at 12.) See also al-Kidd, 563 U.S. at 742 (finding a clearly established right should not be 10 defined using a high level of generality); Carley, 103 F.4th at 660-62. They contend Welch 11 cannot point to clearly established law which would have notified Defendants that 12 breaching prison policy by “refusing to wear PPE” is a constitutional violation. (ECF No. 13 29 at 12.) But as applied to the context of COVID-19, the case law dating back to 1993 14 does exactly that. See Hampton, 83 F.4th at 770 (finding the COVID-19 outbreak resulting 15 from the transfer of inmates between prisons exposed inmates to serious disease in 16 violation of clearly established law). In Hampton, the Ninth Circuit found that cases 17 including Helling, Parsons, Wallis, and Hoptowit put “all reasonable prison officials” on 18 notice in 2020 at the outset of the pandemic about their potential liability for exposing 19 inmates to COVID-19. See id. Liberally construing Welch’s claims, Defendants plausibly 20 knew that refusing to comply with the PPE policy violates the Eighth Amendment because 21 it risks exposing inmates to serious disease, hence the existence of the PPE policy. 22 Defendants argue the precedential cases apply only to situations where prison 23 officials transferred inmates into risky environments and that there is no clearly 24 established law applying to the situation here, where Defendants “kept [Welch] in his unit 25 after he was already exposed to his COVID-19 positive neighbor.” (ECF No. 29 at 13.) 26 This distinction is unconvincing, because at minimum, Defendants acknowledge they kept 27 Welch in an environment where he faced COVID-19 exposure. It is well-established that 28 prisons assume “some responsibility” over inmates’ basic human needs, including 1 || medical care and reasonable safety, anytime an inmate is in custody. See DeShaney v. 2 || Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989). Prison 3 || officials do not only assume this responsibility when transferring an inmate between 4 || environments. See id. 5 Relatedly, Defendants also suggest that making Welch shelter-in-place near other 6 || inmates with COVID-19 was the best option to stop the disease from spreading. (ECF 7 || No. 29 at 12.) Maybe so, but that is a factual question improper for resolution on a motion 8 || to dismiss. It does not resolve the fact that Welch plausibly alleges Defendants kept him 9 || where they knew he was exposed to serious disease—the risks of which were specifically 10 || known at the time of the violation—and that Plaintiff has a clearly-established Eighth 11 || Amendment right to be free from this kind of exposure. 12 The violation Welch claims is clearly established law, satisfying the second prong. 13 || Defendants are not entitled to a finding of qualified immunity at this time. 14 || Ill. CONCLUSION 15 The Court notes that the parties made arguments and cited to cases not discussed 16 || above. The Court has reviewed these arguments and cases and determines that they do 17 || not warrant discussion as they do not affect the outcome of the issues before the Court. 18 It is therefore ordered that Defendants’ Objection (ECF No. 29) to Judge □□□□□□□□□ 19 || Report and Recommendation (ECF No. 28) is overruled. 20 It is further ordered that Judge Baldwin’s Report and Recommendation (ECF No. 21 || 28) is accepted and adopted in full. 22 It is further ordered that Defendants’ Motion to Dismiss (ECF No. 21) is denied. 23 DATED THIS 23% Day of June 2025.

25 MIRANDA M. DU 26 UNITED STATES DISTRICT JUDGE 27 28 13