1 2 3 4 5 6 7 10 CDCR #V-34099, Case No.: 21-cv-0055-RSH-BGS 12
Plaintiff, 13 v. ORDER ON MOTION TO DISMISS 14 BY DEFENDANTS MADDEN, WILLIAM M. POLLARD, et al., Defendants. 16 [ECF No. 57] 17 18
19 Plaintiff John Wesley Williams filed this action pursuant to 42 U.S.C. § 1983 20 alleging that officials at the Richard J. Donovan Correctional Facility (“RJD”) violated his 21 Eighth Amendment rights. Plaintiff’s Second Amended Complaint (“SAC”), filed on 22 February 4, 2022, is the operative complaint. ECF No. 42. Three of the Defendants – R. 23 Madden, S. Roberts, and M. Glynn – have moved to dismiss the SAC against them based 24 on failure to state a claim (the “Motion”). ECF No. 57. The Motion is fully briefed. ECF 25 Nos. 64, 66. As explained further below, the Court grants the Motion. 26 I. Background 27 Plaintiff initiated this action by filing a pro se civil rights Complaint on January 1, 28 2021, accompanied by an application to proceed in forma pauperis, naming as Defendants 1 RJD Warden Pollard and three others. ECF Nos. 1-2. On May 5, 2020, the Court granted 2 Plaintiff leave to proceed in forma pauperis, screened the Complaint pursuant to 28 U.S.C. 3 §§ 1915(e)(2) and 1915A(b), and directed service as to all four Defendants. ECF No. 4. 4 On May 28, 2021, Defendants filed a motion to dismiss the original Complaint. ECF 5 No. 12. Plaintiff filed his First Amended Complaint (“FAC”) on August 24, 2021, dropping 6 one of the original Defendants but adding four new ones. ECF No. 19. On September 7, 7 2021, Defendants withdrew their motion to dismiss the original Complaint and filed a 8 motion to dismiss the FAC. ECF No. 21. 9 On January 19, 2022, the Court granted in part and denied in part the motion to 10 dismiss, dismissing the FAC against all defendants except Pollard, and granting Plaintiff 11 leave to amend. ECF No. 40. On February 4, 2022, Plaintiff filed the SAC. ECF No. 42. 12 The SAC names six RJD defendants: (1) RJD Warden Pollard, (2) Warden R. 13 Madden, (3) Chief Medical Executive S. Roberts, (4) CEO M. Glynn, (5) Chief Deputy 14 Warden R. Buckel, and (6) Correctional Sergeant Navarro. Of these, Pollard, Buckel, and 15 Navarro had previously been named as defendants, and have appeared in this action, ECF 16 No. 44; the other three Defendants, newly added, filed the Motion at issue in this Order. 17 In the SAC, Plaintiff alleges as follows. He has pre-existing health conditions which 18 place him at a heightened risk of death or severe illness if infected with COVID-19. ECF 19 No. 42 at 4. While incarcerated at RJD, Defendants were deliberately indifferent to his risk 20 of exposure to the virus in violation of the Eighth Amendment. RJD staff: (1) provided 21 poor quality masks to inmates and to RJD staff, and some staff refused to wear masks at 22 all; (2) failed to properly sanitize the housing unit or enforce social distancing guidelines; 23 (3) refused to separate infected from non-infected inmates, and housed Plaintiff with an 24 inmate who tested positive for the virus for one night in December 2020, intimidating 25 Plaintiff into agreeing to the arrangement; and (4) ignored grievances filed by Plaintiff. Id. 26 at 4-10, 12-16. As a result, Plaintiff suffered panic attacks and other ongoing physical and 27 emotional distress, as well as chest pains and loss of taste and smell; and he ultimately 28 tested positive for COVID-19, requiring quarantine from January 19, 2022 to January 25, 1 2022. Id. at 7, 14, 16. Plaintiff’s symptoms while infected were severe, but have largely 2 passed; now he is left with lingering mucus in his chest. Id. at 16. Plaintiff seeks damages, 3 and an injunction to prevent ongoing deliberate indifference to COVID-19 exposure. Id. at 4 20. 5 II. Legal Standard 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 7 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 8 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 9 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 A claim is facially plausible “when the plaintiff pleads factual content that allows 12 the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to 14 conclusory allegations or the “formulaic recitation of the elements of a cause of action.” 15 Twombly, 550 U.S. at 555. The factual allegations must rise above the mere conceivability 16 or possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79. “Factual allegations must be 17 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. 18 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements, do not suffice.” Iqbal, 556 U.S. at 678. “[F]or a complaint to survive a motion 20 to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 21 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. 22 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009), quoting Iqbal, 556 U.S. at 678. 23 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 24 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 25 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 26 substantive rights, but merely provides a method for vindicating federal rights elsewhere 27 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 28 omitted). To state a § 1983 claim, a plaintiff must plausibly allege that (1) the acts of 1 Defendants (2) taken under color of state law (3) deprived him of his federal rights, 2 privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 3 F.3d 1158, 1163-64 (9th Cir. 2005). 4 The Eighth Amendment’s cruel and unusual punishments clause is violated when 5 prison officials are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. 6 Gamble, 429 U.S. 97, 102-05 (1976). To establish deliberate indifference, a prisoner must 7 allege facts from which a trier of fact might reasonably conclude that the treatment he 8 received placed him at risk of “objectively, sufficiently serious” harm, and that a prison 9 official had a “sufficiently culpable state of mind” when they provided or denied medical 10 care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). A plaintiff must show that 11 defendants knew of and disregarded “an excessive risk to inmate health or safety; the 12 official must both be aware of the facts from which the inference could be drawn that 13 substantial risk of serious harm exists, and he must also draw the inference.” Farmer v.
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1 2 3 4 5 6 7 10 CDCR #V-34099, Case No.: 21-cv-0055-RSH-BGS 12
Plaintiff, 13 v. ORDER ON MOTION TO DISMISS 14 BY DEFENDANTS MADDEN, WILLIAM M. POLLARD, et al., Defendants. 16 [ECF No. 57] 17 18
19 Plaintiff John Wesley Williams filed this action pursuant to 42 U.S.C. § 1983 20 alleging that officials at the Richard J. Donovan Correctional Facility (“RJD”) violated his 21 Eighth Amendment rights. Plaintiff’s Second Amended Complaint (“SAC”), filed on 22 February 4, 2022, is the operative complaint. ECF No. 42. Three of the Defendants – R. 23 Madden, S. Roberts, and M. Glynn – have moved to dismiss the SAC against them based 24 on failure to state a claim (the “Motion”). ECF No. 57. The Motion is fully briefed. ECF 25 Nos. 64, 66. As explained further below, the Court grants the Motion. 26 I. Background 27 Plaintiff initiated this action by filing a pro se civil rights Complaint on January 1, 28 2021, accompanied by an application to proceed in forma pauperis, naming as Defendants 1 RJD Warden Pollard and three others. ECF Nos. 1-2. On May 5, 2020, the Court granted 2 Plaintiff leave to proceed in forma pauperis, screened the Complaint pursuant to 28 U.S.C. 3 §§ 1915(e)(2) and 1915A(b), and directed service as to all four Defendants. ECF No. 4. 4 On May 28, 2021, Defendants filed a motion to dismiss the original Complaint. ECF 5 No. 12. Plaintiff filed his First Amended Complaint (“FAC”) on August 24, 2021, dropping 6 one of the original Defendants but adding four new ones. ECF No. 19. On September 7, 7 2021, Defendants withdrew their motion to dismiss the original Complaint and filed a 8 motion to dismiss the FAC. ECF No. 21. 9 On January 19, 2022, the Court granted in part and denied in part the motion to 10 dismiss, dismissing the FAC against all defendants except Pollard, and granting Plaintiff 11 leave to amend. ECF No. 40. On February 4, 2022, Plaintiff filed the SAC. ECF No. 42. 12 The SAC names six RJD defendants: (1) RJD Warden Pollard, (2) Warden R. 13 Madden, (3) Chief Medical Executive S. Roberts, (4) CEO M. Glynn, (5) Chief Deputy 14 Warden R. Buckel, and (6) Correctional Sergeant Navarro. Of these, Pollard, Buckel, and 15 Navarro had previously been named as defendants, and have appeared in this action, ECF 16 No. 44; the other three Defendants, newly added, filed the Motion at issue in this Order. 17 In the SAC, Plaintiff alleges as follows. He has pre-existing health conditions which 18 place him at a heightened risk of death or severe illness if infected with COVID-19. ECF 19 No. 42 at 4. While incarcerated at RJD, Defendants were deliberately indifferent to his risk 20 of exposure to the virus in violation of the Eighth Amendment. RJD staff: (1) provided 21 poor quality masks to inmates and to RJD staff, and some staff refused to wear masks at 22 all; (2) failed to properly sanitize the housing unit or enforce social distancing guidelines; 23 (3) refused to separate infected from non-infected inmates, and housed Plaintiff with an 24 inmate who tested positive for the virus for one night in December 2020, intimidating 25 Plaintiff into agreeing to the arrangement; and (4) ignored grievances filed by Plaintiff. Id. 26 at 4-10, 12-16. As a result, Plaintiff suffered panic attacks and other ongoing physical and 27 emotional distress, as well as chest pains and loss of taste and smell; and he ultimately 28 tested positive for COVID-19, requiring quarantine from January 19, 2022 to January 25, 1 2022. Id. at 7, 14, 16. Plaintiff’s symptoms while infected were severe, but have largely 2 passed; now he is left with lingering mucus in his chest. Id. at 16. Plaintiff seeks damages, 3 and an injunction to prevent ongoing deliberate indifference to COVID-19 exposure. Id. at 4 20. 5 II. Legal Standard 6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 7 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 8 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 9 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 A claim is facially plausible “when the plaintiff pleads factual content that allows 12 the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to 14 conclusory allegations or the “formulaic recitation of the elements of a cause of action.” 15 Twombly, 550 U.S. at 555. The factual allegations must rise above the mere conceivability 16 or possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79. “Factual allegations must be 17 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. 18 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements, do not suffice.” Iqbal, 556 U.S. at 678. “[F]or a complaint to survive a motion 20 to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 21 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. 22 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009), quoting Iqbal, 556 U.S. at 678. 23 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 24 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 25 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 26 substantive rights, but merely provides a method for vindicating federal rights elsewhere 27 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 28 omitted). To state a § 1983 claim, a plaintiff must plausibly allege that (1) the acts of 1 Defendants (2) taken under color of state law (3) deprived him of his federal rights, 2 privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 3 F.3d 1158, 1163-64 (9th Cir. 2005). 4 The Eighth Amendment’s cruel and unusual punishments clause is violated when 5 prison officials are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. 6 Gamble, 429 U.S. 97, 102-05 (1976). To establish deliberate indifference, a prisoner must 7 allege facts from which a trier of fact might reasonably conclude that the treatment he 8 received placed him at risk of “objectively, sufficiently serious” harm, and that a prison 9 official had a “sufficiently culpable state of mind” when they provided or denied medical 10 care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). A plaintiff must show that 11 defendants knew of and disregarded “an excessive risk to inmate health or safety; the 12 official must both be aware of the facts from which the inference could be drawn that 13 substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. 14 Brennan, 511 U.S. 825, 837 (1994). 15 III. Analysis 16 Here, newly added defendants Madden, Roberts, and Glynn argue in the Motion that 17 the SAC – regardless whether it states an Eighth Amendment claim against one or more of 18 the other Defendants – fails to state a claim against the three of them. Defendants argue 19 that the SAC “attributes no specific conduct to Roberts, Glynn, and Madden,” but instead 20 seeks to hold them responsible without pleading facts that would establish unlawful 21 conduct by them. ECF No. 57 at 4. 22 Defendants’ characterization of the SAC is accurate. The SAC alleges in general 23 terms that each of them, like the other Defendants, “acted with deliberate indifference by 24 failing to adequately protect Plaintiff from COVID-19 infection exposure.” ECF No. 42 at 25 2-3. Plaintiff alleges that in mid-2020, he complained that Roberts and Glynn (along with 26 other Defendants) issued “generic face masks of poor quality.” Id. at 4. He alleges that 27 Madden (along with other Defendants) played a role in RJD’s grievance process in general. 28 Id. at 5. He also alleges that Madden, Roberts, and Glynn (among other Defendants) failed 1 to separate infected and non-infected inmates. Id. at 6, 10, 15. He further alleges that 2 Roberts and Glynn (among other Defendants) practiced poor sanitation through the 3 pandemic. Id. at 14. 4 District courts have held that similar allegations fail to state a claim where they fail 5 to allege facts showing how each defendant is responsible. See Swan v. R.J. Donovan C.F., 6 No. 21-CV-1455-JLS-MDD, 2022 WL 2134605 (S.D. Cal. June 14, 2022) (holding that a 7 complaint failed to state a claim, despite alleging that the defendant prison officials were 8 personally aware of his medical vulnerabilities and took no action in response to his 9 grievances, where it failed to plausibly allege facts supporting defendants’ personal role in 10 causing harm to the plaintiff and supporting their deliberate indifference to the plaintiff’s 11 health or safety); Flourney v. Does 1-15, No. 3:21-CV01767-CAB-BGS, 2022 WL 12 254568, at *3-*4 (S.D. Cal. Jan. 27, 2022) (holding that a complaint failed to state a claim, 13 despite alleging that the plaintiff’s infection resulted from prison officials’ failure to 14 sufficiently enforce COVID-19 guidelines in his housing unit, because complaint did not 15 set forth specific facts as to “each individual defendant’s wrongdoing”); Acuna v. Pollard, 16 No. 21-CV-1910-LL-AGS, 2022 WL 184659, at *2-*4 (S.D. Cal. Jan. 20, 2022) (holding 17 that a complaint failed to state a claim, despite alleging that the plaintiff’s infection resulted 18 from prison officials’ “fail[ure] to implement proper protocol,” because the complaint did 19 not contain individualized allegations against each of the eight defendants); McKissick v. 20 Gastelo, No. 2:21-CV-01945-VAP-MAA, 2021 WL 2895679, at *5 (C.D. Cal. July 9, 21 2021) (“[T[o state a cognizable Eighth Amendment claim, Plaintiff must provide more than 22 generalized allegations that Defendants have not done enough to enforce six-feet social and 23 living distancing, or provided sufficient cleaning supplies, in order to control the spread of 24 COVID-19. . . . . Plaintiff fails to allege facts showing how each Defendant specifically 25 was responsible for such failings, or allege a causal link between each Defendant and the 26 claimed constitutional violation.”) 27 Similar to the cases cited above, Plaintiff’s allegations against Madden, Roberts, and 28 Glynn do not support an inference of personal participation and deliberate ignorance as to 1 each of them, and therefore fail to state a claim. See also Jones v. Williams, 297 F.3d 930, 2 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under 3 section 1983 there must be a showing of personal participation in the alleged rights 4 deprivation: there is no respondeat superior liability under section 1983”); Leer v. Murphy, 5 844 F.2d 628, 634 (9th Cir. 1988) (a prisoner must allege “(1) that the specific prison 6 official, in acting or failing to act, was deliberately indifferent to the mandates of the eighth 7 amendment and (2) that this indifference was the actual and proximate cause of the 8 deprivation of the inmates’ eighth amendment right to be free from cruel and unusual 9 punishment.”). 10 Plaintiff’s Opposition argues that Roberts and Glynn, in response to one of 11 Plaintiff’s grievances, ordered a medical quarantine that ultimately resulted in Plaintiff 12 being housed together with an infected inmate in December 2020. ECF No. 64 at 2-3. 13 Plaintiff contends that these allegations are sufficient to show their deliberate ignorance. 14 ECF No. 64 at 4-5. But as Defendants point out in their Reply, this allegation against 15 Roberts and Glynn is not contained in the SAC, which instead blames the decision to house 16 Plaintiff with an infected inmate on Defendant Navarro’s desire to get home for Christmas 17 dinner. ECF No. 66 at 2; ECF No. 42 at 8. Plaintiff also argues that Roberts and Glynn 18 signed off on a grievance response document that conceded (after the fact) that Plaintiff 19 had reportedly been celled with an infected inmate on December 25, 2020.1 ECF No. 64 at 20 2-3. This too, falls short of pointing to allegations in the SAC that would plausibly establish 21 their liability for violating Plaintiff’s Eighth Amendment rights. Plaintiff’s Opposition does 22 not even mention defendant Madden. ECF No. 64. 23 24 25 26
27 1 The referenced document appears to be Exhibit D to the SAC, ECF No. 42-4 at 11- 28 1 IV. Conclusion 2 For the above reasons, the Court GRANTS the motion to dismiss of Defendants 3 Madden, Roberts, and Glynn. The Second Amended Complaint is DISMISSED as to each 4 || of these three defendants.’ 5 The Motion does not address whether Plaintiff should be granted leave to amend in 6 || the event of a dismissal. Because Plaintiff may be able to cure the pleading defects against 7 || Madden, Roberts, and Glynn, this dismissal is without prejudice and he is granted leave to 8 ||amend as to those Defendants. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 9 || (“A district court should not dismiss a pro se complaint without leave to amend unless ‘it 10 absolutely clear that the deficiencies of the complaint could not be cured by 11 |}amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). The Court 12 therefore GRANTS Plaintiff leave to file a Third Amended Complaint within thirty (30) 13 from the date this Order is filed if he wishes to do so. The Third Amended Complaint 14 ||must be complete by itself without reference to any original pleading. Defendants not 15 ||named and any claim not re-alleged will be considered waived. If Plaintiff does not timely 16 a Third Amended Complaint, this action will proceed against the remaining 17 || Defendants, namely Pollard, Buckel, and Navarro. 18 SO ORDERED. ‘ 19 || Dated: November 9, 2022. Korb a Howe 20 Hon.RobertS.Huie —s—S 1 United States District Judge 22 23 24 25 000i i‘:™S™S~™S™ 27 |? In granting Defendants’ Motion based on failure to sufficiently allege a 28 constitutional violation, the Court does not rule on Defendants’ alternative argument based on qualified immunity.