Wilson v. Sinclair

• Court: District Court, E.D. Washington
• Decided: August 3, 2022
• Docket: 2:22-cv-00014
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Aug 03, 2022 3 SEAN F. MCAVOY, CLERK 4

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 TOBIAS WILSON, a.k.a. TOBIN No. 2:22-CV-0014-TOR SATHER, and KENNETH 8 LAWRENCE, THIRD AND FINAL ORDER TO AMEND COMPLAINT; DENYING 9 Plaintiffs, CONSTRUED MOTION FOR RECONSIDERATION; DENYING 10 v. CONSTRUED MOTION FOR RECUSAL; DENYING 11 GOVERNOR JAY INSLEE, CONSTRUED REQUEST FOR STEPHEN SINCLAIR, CHERYL ELECTRONIC FILING 12 STRANGE, SEAN MURPHY, JEFF EXEMPTION UTTECHT, SARAH SYTSMA, DR. 13 SARAH KARIKO, and GREG MILLER, 14 Defendants. 15

16 BEFORE THE COURT is the Second Amended Complaint (“SAC”) of 17 Plaintiffs Tobias Wilson and Kenneth Lawrence, ECF No. 9. Plaintiffs, both 18 prisoners at the Airway Heights Corrections Center (“AHCC”), are proceeding pro 19 se and separate filing fees have been paid on behalf of both Plaintiffs. Defendants 20 have not been served. 1 Plaintiffs seek injunctive, declaratory, and monetary relief, claiming that their 2 Eighth Amendment rights were violated by Defendants’ deliberate indifference in

3 protecting them from heightened exposure to the novel coronavirus (COVID-19) 4 while housed at the AHCC.1 ECF No. 9 at 11–37, 43–44. Plaintiffs also claim that 5 Defendants have been deliberately indifferent to their basic human needs and

6 medical needs. Id. at 27–33, 37–43. 7 As a general rule, an amended complaint supersedes the original complaint 8 and renders it without legal effect. Lacey v. Maricopa County, 693 F.3d 896, 927 9 (9th Cir. 2012). Therefore, “[a]ll causes of action alleged in an original complaint

10 which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 11 F.2d 565, 567 (9th Cir. 1987) (citing London v. Coopers & Lybrand, 644 F.2d 811, 12 814 (9th Cir. 1981)), overruled in part by Lacey, 693 F.3d at 928 (any claims

13 voluntarily dismissed are considered to be waived if not repled). 14 Liberally construing the Second Amended Complaint in the light most 15 favorable to Plaintiffs, the Court finds that at Count One, Plaintiffs have alleged 16

17 1 Plaintiffs state that they are also bringing this claim under the Fourteenth 18 Amendment. ECF No. 9 at 30. However, inmate claims of deliberate indifference 19 against prison officials are analyzed under the Eighth Amendment. Castro v. Cnty.

20 of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (en banc). 1 facts sufficient to state an Eighth Amendment claim against all of the named 2 Defendants with respect to the COVID-19 response within AHCC. Plaintiffs have

3 also alleged sufficient facts to state an Eighth Amendment claim for relief against 4 Defendant Sytsma related to the denial of a safe work environment. At Count Two, 5 Plaintiffs have alleged sufficient facts to state a plausible Eighth Amendment claim

6 against Defendant Dr. Kariko for deliberate indifference to unsanitary conditions 7 affecting Plaintiff Wilson in December 2020. At Count Three, Plaintiffs have 8 alleged sufficient facts to state a plausible Eighth Amendment denial of medical 9 care claim against Defendants Strange, Murphy, Uttecht, Miller, and Dr. Kariko.

10 After a review of Plaintiffs’ SAC, the Court finds that at Count One, 11 Plaintiffs’ present allegations fail to state a claim upon which relief may be granted 12 against any Defendant related to the processing of or responses to their grievances.

13 The Court also finds that at Count Two, Plaintiffs’ present allegations fail to state a 14 claim upon which relief may be granted against any Defendant for denial of heat 15 during winter weather conditions, against any Defendant, other than Dr. Kariko, for 16 deliberate indifference to unsanitary conditions affecting Plaintiff Wilson in

17 December 2020, or against any Defendant for deliberate indifference to unsanitary 18 conditions concerning both Plaintiffs on January 21, 2022. 19

20 1 PLAINTIFFS’ ALLEGATIONS 2 Plaintiffs are cellmates who assert that they both contracted COVID-19 in

3 November/December 2020 and January/February 2022 while housed at AHCC. 4 ECF No. 9 at 20. Plaintiffs’ SAC asserts three causes of action: (1) deliberate 5 indifference to Plaintiffs’ health, welfare, and safety related to Defendants’

6 inadequate response to the COVID-19 health crisis; (2) deliberate indifference to 7 Plaintiffs’ basic human needs while housed in the AHCC quarantine environment; 8 and (3) deliberate indifference to Plaintiffs’ medical needs due to the suspension of 9 clinical care during COVID-19 outbreak periods. Id. at 34–43.

10 A. Inadequate Response to the COVID-19 Health Crisis 11 First, Plaintiffs claim that Defendants created an unsafe environment by 12 failing to correct known hazards and knowingly exposing and/or causing a

13 vulnerable person to be repeatedly exposed to COVID-19.2 ECF No. 9 at 12. 14 Plaintiffs state that COVID-19 is a serious and highly communicable virus which 15 spreads through close contact with individuals who have contracted or become 16 exposed to COVID-19. Id. at 16. They assert that by February 28, 2022, the

17 Washington State DOC had a total of 13,267 confirmed COVID-19 cases among 18

19 2 Plaintiffs refer to themselves in the SAC as “vulnerable Plaintiffs.” ECF No. 9 at 20 34, 36. 1 its adult incarcerated population. Id. at 17. They allege that the DOC’s confirmed 2 cases and Plaintiffs’ “repetitive COVID-19 infections in less than thirteen months”

3 show that “prisons in Washington [State] are not prepared to prevent the spread of 4 COVID-19, treat those who are most medically vulnerable, and contain any 5 outbreak.” Id. at 18.

6 Plaintiffs note that on February 29, 2020, Defendant Governor Inslee issued 7 “Proclamation by the Governor 20-05 ‘State of Emergency’”, and declared that 8 COVID-19 creates “an extreme public health risk that may spread quickly…” ECF 9 No. 9 at 19. They assert that measures were taken in an attempt to slow the spread

10 of COVID-19, including the suspension of visitation at all prisons and the 11 implementation of mask mandates. Id. They allege that by November 2020, each 12 of the Defendants had first-hand or constructive knowledge that COVID-19 was

13 causing the deaths of vulnerable incarcerated adults within DOC facilities. Id. 14 Plaintiffs claim that “each Defendant exercised deliberate indifference to 15 Plaintiffs’ health and safety by failing to enforce, or ensure their subordinates 16 complied with, these COVID-19 policies – and in many cases just acknowledged

17 the instances of noncompliance, and did nothing to correct them for months while 18 outbreak after outbreak occurred in WDOC facilities.” ECF No. 9 at 12. Plaintiffs 19 contend that Defendants, in their official capacities, have failed to adequately

20 manage AHCC, train or supervise their subordinates, and take swift actions to 1 enforce policies which would have corrected the hazards associated with COVID- 2 19 that posed a risk to Plaintiffs’ health and safety. Id. at 22, 30–31. Specifically,

3 Plaintiffs allege that Defendants have failed to: (1) enforce masking policies; (2) 4 enforce the consistent screening of DOC employees for COVID-19 symptoms; (3) 5 enforce the denial of access to DOC facilities for exposed/infected staff; (4) ensure

6 incarcerated adults awaiting COVID-19 testing results were properly quarantined; 7 (5) train staff to require adequate sanitation and disinfection in AHCC living units; 8 and (6) provide adequate sanitation and disinfectants in AHCC’s living units. Id. 9 at 30–31, 34–36.

10 Plaintiffs allege that due to Defendants’ failures, they have “been infected 11 [with COVID-19] multiple times.” ECF No. 9 at 12. They allege that their 12 “numerous infections in less than 18 months” show that AHCC has neither the

13 capacity nor the ability to implement adequate COVID-19 prevention, testing, or 14 care and no facility under Defendants’ management can provide for Plaintiffs’ 15 safety. Id. at 35. 16 1. Failure to Comply with Quarantine Guidelines

17 Plaintiffs contend that throughout the course of the pandemic, Defendants 18 failed to continuously enforce quarantine and/or non-mixing policies to prevent 19 incarcerated adults from coming into contact with others who had contracted or

20 been exposed to COVID-19. ECF No. 9 at 21. They assert that despite CDC 1 guidelines that required anyone with COVID-19 symptoms to be immediately 2 placed in medical isolation, Plaintiffs were not placed in medical isolation when

3 they exhibited COVID-19 symptoms at the onset of their infections in 4 November/December 2020 or January/February 2022, but instead were returned to 5 their shared cell in the M-Unit living environment. Id. at 20. Plaintiffs also allege

6 that they observed other inmates receiving positive COVID-19 tests and remaining 7 in the unit. Id. 8 They assert that although CDC guidelines require an individual who had 9 close contact with a known COVID-19 case but no symptoms to quarantine and be

10 monitored for symptoms twice daily for 14 days, DOC’s labor union agent, who is 11 not named as a Defendant to this action, made it publicly known that DOC staff 12 were given specific directives to report to work while asymptomatic. ECF No. 9 at

13 21. Moreover, Plaintiffs allege that during each COVID-19 outbreak at AHCC, 14 they witnessed “mass migrations” of individuals being moved from unit to unit, 15 often while still awaiting the results of COVID-19 tests. Id. at 25. Plaintiffs claim 16 that more than once they were made aware of individuals in a negative area with

17 positive COVID-19 test results. Id. 18 Plaintiffs contend that they were both “infected [with COVID-19] multiple 19 times in less than fourteen months.” ECF No. 9 at 12. They claim that on June 10,

20 2020, AHCC medical staff notified Plaintiff Wilson on a “Health Services Kite” 1 that he was at a “high risk” for contracting COVID-19 and being harmed by its side 2 effects. Id. at 19. They allege that on November 21, 2020, Plaintiff Wilson began

3 exhibiting symptoms of COVID-19 for the first time, including abnormally high 4 temperatures, which AHCC medical staff monitored at Plaintiff Wilson’s cell door. 5 Id. at 24. They note that Plaintiff Wilson remained housed with Plaintiff Lawrence

6 and neither were quarantined per CDC guidelines. Id. They assert that Plaintiff 7 Wilson tested positive first and Plaintiff Lawrence tested positive one week later. 8 Id. They claim that neither Plaintiff was placed in quarantine while awaiting their 9 test results. Id. Plaintiffs state that one week after his initial symptoms, and four

10 days after testing positive, Plaintiff Wilson was placed in the AHCC Regional Care 11 Facility (“RCF”) quarantine environment. Id. 12 2. Failure to Enforce Disinfection Policies

13 Plaintiffs contend that throughout the pandemic, Defendants failed to 14 continuously enforce disinfection and cleaning policies. ECF No. 9 at 21–22, 26. 15 They contend that Defendants Sinclair, Strange, Murphy, Uttecht, Sytsma, Dr. 16 Kariko, and Miller failed to ensure that AHCC porters, who are solely tasked with

17 the duty of cleaning and disinfecting the environment where Plaintiffs eat, work, 18 and reside, received adequate training and supervision in AHCC’s infectious 19 disease sanitation. Id. at 23.

20 1 Plaintiffs claim that as a supervisor of Washington State Correctional 2 Industries (“WCI”) workers, Defendant Sytsma denied Plaintiffs a safe work

3 environment by incentivizing production over sanitation. ECF No. 9 at 15, 27, 37– 4 38. They contend that Defendant Sytsma emphasized a system that did not include 5 a sanitation step during production and intentionally ignored social distancing

6 through person-to-person passing of raw materials, often without personal 7 protective equipment. Id. 8 Further, Plaintiffs claim that Defendants denied Plaintiffs access to EPA- 9 registered disinfectants. ECF No. 9 at 21, 26. They assert that Clorox Wipes, a

10 product listed on the EPA and CDC websites, were provided to DOC staff because 11 Defendants were aware that HEPASTAT 256, which Plaintiffs were required to use, 12 did not protect against COVID-19. Id.

13 3. Failure to Take Corrective Action 14 Plaintiffs claim that throughout the course of the pandemic, each of the 15 Defendants have consistently failed to take adequate corrective action despite 16 having the authority and resources to do so. ECF No. 9 at 22. They assert that on

17 February 1, 2021, the Washington State Department of Labor and Industries 18 (“L&I”) determined that both Plaintiffs were “injured workers”, having been 19 harmed by a lack of COVID-19 safeguards in their WCI workplace in November

20 2020. Id. at 27. Plaintiffs contend that according to the published narratives of the 1 subsequent Department of L&I fines issued in June and December 2021, 2 Defendants have failed to correct “these hazards” which continue to threaten

3 Plaintiffs’ health and safety. Id. 4 Specifically, Plaintiffs assert that by December 17, 2021, L&I had issued 5 three separate fines over a six-month period against DOC for “failing to provide an

6 environment free from recognized hazards that are causing, or are likely to cause, 7 serious injury or death.” ECF No. 9 at 22. Plaintiffs contend that each of the 8 Defendants were respondents to those citations in their official capacity, and in 9 January 2022, just weeks after the Department of L&I issued its “most serious” of

10 these citations, DOC experienced another department-wide COVID-19 outbreak 11 and Plaintiffs contracted COVID-19 for a second time. Id. 12 4. Failure to Timely Respond to Grievances

13 Plaintiffs contend that under Defendant Uttecht’s supervision as Deputy 14 Director of DOC’s Eastern Command, Plaintiffs’ grievances related to COVID-19 15 hazards at AHCC have either been delayed until evidence is no longer available, or 16 outright denied. ECF No. 9 at 14, 38. Plaintiffs claim Defendant Uttecht has failed

17 to act despite being informed in writing of these conditions and Plaintiffs’ 18 grievances. Id. at 38. 19

20 1 B. Deliberate Indifference to Basic Human Needs 2 Plaintiffs allege that Defendants have been deliberately indifferent to their

3 basic human needs. ECF No. 9 at 20, 37–40. They state that after testing positive 4 for COVID-19 the first time in November/December 2020, Plaintiff Wilson was 5 placed in the AHCC RCF quarantine environment. Id. at 24. They claim that the

6 RCF was not a designated living unit and had known deficiencies which the facility 7 superintendent, who is not named as a Defendant to this action, was aware of and 8 had the opportunity to fix. Id. at 24–25. They allege that these deficiencies included 9 no heat because of a known HVAC malfunction, and an outdoor toilet which was

10 known to be frozen during the winter. Id. at 24. 11 1. Heating Problems 12 Plaintiffs claim that AHCC had systemic shelter deficiencies during COVID-

13 19 outbreaks, which denied Plaintiffs heat and exposed them to winter weather 14 conditions while they were suffering from COVID-19 symptoms such as fevers and 15 respiratory problems. ECF No. 9 at 39. They contend that during the cold months 16 of December 2020, and at the height of his severe COVID-19 symptoms, Plaintiff

17 Wilson was denied heat for approximately two weeks because the HVAC system 18 in the RCF was malfunctioning. Id. at 25. Plaintiffs assert that Plaintiff Wilson and 19 his spouse presented these facts to several media outlets and the Corrections

20 Ombudsman, but rather than investigate these claims, Defendant Governor Inslee 1 sought to discredit them. Id. at 30. They claim that Defendant Governor Inslee 2 stated, “[s]ometimes there are stories that are reported in our great media that just

3 are not accurate. Sometimes rumors get started by individuals who are incarcerated 4 that are frankly false.” Id. 5 2. Unsanitary Conditions of Confinement

6 Plaintiffs assert that during December 2020, Plaintiff Wilson was denied 7 unfettered access to a toilet, as the outdoor toilet system for the RCF inmates had 8 frozen. ECF No. 9 at 25. They claim that for days, Plaintiff Wilson and 16 other 9 inmates, not including Plaintiff Lawrence, were required to urinate and defecate on

10 top of overflowing septic in order to relieve their diarrhea while suffering from 11 COVID-19. Id. Plaintiffs contend that a single portable toilet was provided when 12 the RCF population increased to 27 patients, but corrections staff quickly became

13 cold due to the extreme weather and would close access to the toilet for at least 30 14 minutes. Id. They allege that at times, Plaintiff Wilson was “denied emergent 15 access for hours” because the septic system was malfunctioning. Id. 16 Plaintiffs assert that on January 21, 2022, both Plaintiffs were denied

17 unencumbered access to a toilet while once again suffering from COVID-19 18 symptoms. ECF No. 9 at 26. Plaintiffs allege that they were forced to wait for 19 hours and they had to receive permission to have their door unlocked so they could

20 use the toilet. Id. Plaintiffs assert that “[p]er the ‘administrative exhaustion’ 1 decision, this was by the authority and decision of Defendant Dr. Kariko, but all 2 defendants above her (besides [Defendant] Sytsma) had both the requisite

3 knowledge and authority to act, and willfully chose not to.” Id. Plaintiffs do not 4 allege when this policy came into effect. Plaintiffs claim that, as a result, they were 5 denied their right to bodily integrity for more than twenty hours. Id

6 Plaintiffs contend that Defendants Governor Inslee and Strange were given 7 official written notice of the denial of bathroom facilities, but according to a 8 grievance response from AHCC staff, bathroom facilities can be denied by 9 Defendant Dr. Kariko under color of law during COVID-19 outbreaks. ECF No. 9

10 at 38. They allege that neither Defendant Governor Inslee nor Defendant Strange 11 took steps to act. Id. Plaintiffs also claim that as of December 17, 2021, the 12 Department of L&I had fined the DOC and Defendants at least three different times

13 for conditions that Defendant Governor Inslee had “turned a blind eye to.” Id. at 14 39. 15 C. Denial of Medical Care 16 Plaintiffs assert that it is a practice of AHCC to discontinue clinical and

17 specialized care during COVID-19 outbreak periods. ECF No. 9 at 27, 41. They 18 claim that Plaintiffs experienced a denial of medical care under two such 19 suspensions. Id. They assert that as a result, both Plaintiffs experienced delays in

20 1 medical care for months, and in some cases several symptoms remain untreated. Id. 2 at 41.

3 Plaintiffs allege that Health Services Manager (“HSM”) McIntyre, who is not 4 named as a Defendant to this action, discontinued the medical services in AHCC. 5 ECF No. 9 at 33. They allege that “[a]s a consequence of HSM McIntyre’s closure

6 of AHCC’s medical care,” Defendants Strange, Murphy, Uttecht, Miller, and Dr. 7 Kariko knowingly failed to carry out their statutory duties by failing to ensure that 8 AHCC provided Plaintiffs with adequate medical services. Id. Plaintiffs claim that 9 “HSM McIntyre’s closure practices…were intended to limit Plaintiffs’ access to

10 medical care as much as possible[,] especially while infected with a likely deadly 11 disease.” Id. 12 Plaintiffs claim that Defendants Strange, Murphy, Uttecht, Miller, and Dr.

13 Kariko knew on January 21, 2022, by virtue of a DOC notice, that clinic and 14 specialized services for AHCC inmates were being “discontinued” indefinitely. 15 ECF No. 9 at 33. They contend that these Defendants knew or should have 16 reasonably known that Plaintiffs would be harmed by an interruption of medical

17 services while they were infected with COVID-19 and suffering from known 18 serious medical conditions. Id. 19 Plaintiffs allege that Defendants Sinclair, Strange, Murphy, Uttecht, Miller,

20 and Dr. Kariko are all under a constitutional duty to ensure that the DOC’s health 1 programs comply with state and federal laws, and to provide Plaintiffs with 2 adequate medical care. ECF No. 9 at 40–41. However, they assert that during

3 COVID-19 outbreaks, Defendants, as a policy, canceled all specialized care outside 4 of the outbreak facility until the facility was cleared to return to normal operations, 5 which has “historically” taken six weeks. Id. at 41. Plaintiffs claim that their

6 conditions worsened while unmonitored and untreated. Id. 7 1. Plaintiff Wilson 8 Plaintiffs contend that Plaintiff Wilson’s specialist care was suspended, 9 including his neurologist for seizures and migraine care, heart and vascular

10 specialists, pulmonologists, and imaging specialists. ECF No. 9 at 27. They claim 11 that during these periods of clinical care suspensions, Plaintiff Wilson’s diabetes, 12 seizures, and mental health were not monitored or treated for months. Id. Further,

13 they allege that Plaintiff Wilson has been denied access to adequate mental health 14 services for over two years. Id. 15 Plaintiffs claim that Plaintiff Wilson has experienced an increase in his 16 seizure activity and migraines since his COVID-19 infections. ECF No. 9 at 31,

17 42. They claim that for several months in early 2022, Plaintiff Wilson’s 18 neurological care was delayed because he could not access his specialist, and once 19 care was reestablished, his treating physician expressed concern that an ordered

20 1 MRI of his brain from three months earlier had not been honored which limited her 2 ability to treat him for his uncontrolled seizures and migraines. Id.

3 They contend that after Plaintiff Wilson’s second COVID-19 infection, he 4 began experiencing daily bloody noses, heavy discharge from his eyes, ears, and 5 nose, and increasing tinnitus in both ears. ECF No. 9 at 32. They also assert that

6 Plaintiff Wilson’s lung function has been impacted and he can no longer breathe on 7 his own while he sleeps. Id. at 31. Plaintiffs claim that although he has repeatedly 8 submitted kites and requested an examination, Plaintiff Wilson has not been 9 examined by an ear, nose, and throat specialist and his provider has done nothing

10 more than persistently prescribe allergy medications. Id. at 32. They assert that 11 allergy medications have not been effective in treating Plaintiff Wilson’s symptoms 12 and have aggravated his nightly apnea condition, making it difficult to breathe and

13 almost impossible to sleep. Id. 14 2. Plaintiff Lawrence 15 Plaintiffs assert that early in 2022, and throughout the pandemic, Plaintiff 16 Lawrence’s access to medical care has been delayed and/or denied as a result of

17 AHCC’s clinical care suspensions and the failure of the medical kite system. ECF 18 No. 9 at 32, 41. Plaintiffs contend that his provider, for unknown reasons, has failed 19 to, or outright refused to, refer Plaintiff Lawrence to a specialist. Id. Plaintiff

20 Lawrence’s provider is not named as a Defendant to this action. 1 Plaintiffs allege that prior to November 2020, Plaintiff Lawrence enjoyed 2 fairly good to average health. ECF No. 9 at 28. However, they claim that since

3 contracting COVID-19 in December 2020, Plaintiff Lawrence has experienced an 4 increase in migraine symptoms, abnormalities in his hematologic laboratory results, 5 exceptional nose bleed and sinus issues, and abnormalities in his ability to void his

6 bladder and fully defecate. Id. at 29, 32. Plaintiffs allege that Plaintiff Lawrence’s 7 normal cognitive function has been manifestly impacted and he can no longer 8 remember words, events, or people. Id. at 32. They contend that his migraines 9 cause him chronic and substantial pain and at times he experiences so much pain

10 that he cannot bare sounds, lights, or smells. Id. at 29. Plaintiffs assert that some 11 days Plaintiff Lawrence must lie in bed all day just to keep his symptoms from 12 becoming unsustainable. Id. Plaintiffs claim that Plaintiff Lawrence’s provider has

13 offered him an antidepressant to treat his migraine symptoms without an 14 examination and without knowing their cause. Id. They contend that Plaintiff 15 Lawrence has told his provider about these issues since December 2021, but he has 16 still not received an examination, treatment, or referral to a specialist for any of

17 these symptoms. Id. 18 Plaintiffs assert that in December 2021, Plaintiff Lawrence sent several kites 19 to AHCC medical concerning his symptoms. ECF No. 9 at 29. They allege that on

20 January 9, 2022, AHCC experienced a facility-wide COVID-19 outbreak and 1 Plaintiff Lawrence did not receive responses to his kites. Id. They claim that once 2 AHCC resumed clinical care after the January through March 2022 COVID-19

3 outbreak, Plaintiff Lawrence once again reported his symptoms to AHCC medical 4 staff through the kite system. Id. at 30. However, Plaintiffs claim that before he 5 received a response to his kite, Plaintiff Lawrence’s living unit was placed in

6 quarantine and his access to clinical care was once again suspended. Id. 7 Plaintiffs claim that Defendants permitted systemic deficiencies to exist, and 8 that Washington State’s Chief Medical Officer, Defendant Dr. Kariko, permitted a 9 policy where Plaintiffs’ essential diagnostic facts were not inquired into through

10 laboratory blood work-ups, physical examinations, or imaging. ECF No. 9 at 42. 11 Plaintiffs contend that although reportedly ordered by his provider, Plaintiff 12 Lawrence experienced intervals of weeks where blood labs were not conducted and

13 this stopped all progression of any treatment because his conditions remain 14 “unknown.” Id. 15 EIGHTH AMENDMENT DELIBERATE INDIFFERENCE 16 Plaintiffs sue various DOC officials and Governor Inslee. They bring this

17 action against all Defendants in their official and individual capacities. ECF No. 9 18 at 1, 11, 13–15. Plaintiffs seek injunctive, declaratory, and monetary relief. Id. at 19 43–44.

20 1 The Eighth Amendment to the United States Constitution protects prisoners 2 against cruel and unusual punishment. U.S. Const. amend. VIII. Prison officials

3 are required to provide prisoners with adequate food, clothing, shelter, sanitation, 4 medical care, and personal safety. Rhodes v. Chapman, 452 U.S. 337, 347 5 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other

6 grounds by Sandin v. Conner, 515 U.S. 472 (1995). This includes a duty to protect 7 inmates from communicable diseases. See, e.g., Helling v. McKinney, 509 U.S. 25, 8 33 (1993) (prison officials may not “be deliberately indifferent to the exposure of 9 inmates to a serious, communicable disease”); Maney v. Brown, 516 F. Supp. 3d

10 1161, 1179 (D. Or. 2021) (collecting cases recognizing prison officials’ duty to 11 protect inmates from exposure to communicable diseases under the Eighth 12 Amendment).

13 To state a claim under the Eighth Amendment, prisoners must show that they 14 are “incarcerated under conditions posing a substantial risk of serious harm,” or that 15 they have been deprived of “the minimal civilized measure of life’s necessities” as 16 a result of the defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834

17 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires a 18 plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious 19 enough to constitute cruel and unusual punishment,” and (2) a subjective standard,

20 that the defendant acted with “deliberate indifference.” Snow v. McDaniel, 681 1 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. 2 Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). As to the objective prong of the

3 analysis, the alleged deprivation must be sufficiently “grave” or “serious.” Wilson 4 v. Seiter, 501 U.S. 294, 298 (1991). 5 As to the subjective prong of an Eighth Amendment violation, to

6 demonstrate deliberate indifference, a defendant “must both be aware of facts from 7 which the inference could be drawn that a substantial risk of serious harm exists, 8 and he must also draw the inference.” Farmer, 511 U.S. at 837. “If a [prison 9 official] should have been aware of the risk, but was not, then the [official] has not

10 violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. 11 of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds 12 by Castro, 833 F.3d 1060. Even prison officials or medical providers who

13 were aware of a substantial risk to inmate health or safety will not be liable 14 under Section 1983 “if they responded reasonably to the risk, even if the harm 15 ultimately was not averted.” Farmer, 511 U.S. at 844. 16 A. Inadequate Response to the COVID-19 Health Crisis

17 In Count One, Plaintiffs claim that Defendants have been deliberately 18 indifferent to the serious risk that COVID-19 posed to Plaintiffs. ECF No. 9 at 34. 19

20 1 1. Allegations Against All Defendants 2 Plaintiffs contend that the number of confirmed cases of COVID-19 within

3 the DOC and Plaintiffs’ “repetitive COVID-19 infections in less than thirteen 4 months” show that “prisons in Washington [State] are not prepared to prevent the 5 spread of COVID-19, treat those who are most medically vulnerable, and contain

6 any outbreak.” ECF No. 9 at 18. As to the objective prong of the 7 Eighth Amendment deliberate indifference analysis, the alleged deprivation must 8 be sufficiently “grave” or “serious.” Wilson, 501 U.S. at 298. The COVID-19 9 pandemic is “unprecedented,” Coleman v. Newsom, 455 F. Supp. 3d 926, 928 (E.D.

10 Cal. 2020), “and no one questions that it poses a substantial risk of serious harm to 11 Plaintiffs.” Plata v. Newsom, 445 F.Supp.3d 557, 559 (2020). However, in order 12 to state a plausible Eighth Amendment claim, Plaintiffs must allege sufficient facts

13 to show that Defendants have acted with deliberate indifference toward the health 14 risks associated with COVID-19. 15 a. Official Capacity Claims 16 To the extent that Plaintiffs seek damages from Defendants in their official

17 capacities, the Eleventh Amendment bars Plaintiffs’ suit. See Mitchell v. 18 Washington, 818 F.3d 436, 442 (9th Cir. 2016); see also Aholelei v. Dept. of Pub. 19 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (“The Eleventh Amendment bars suits

20 for money damages in federal court against a state, its agencies, and state officials 1 acting in their official capacities.”) However, the Eleventh Amendment does not 2 bar suits for prospective declaratory or injunctive relief against state officials in

3 their official capacities. Ex Parte Young, 209 U.S. 123, 155–56 (1908); Will v. 4 Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989); Kentucky v. Graham, 5 473 U.S. 159, 167 n.14 (1985); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007).

6 To the extent Plaintiffs seek prospective declaratory or injunctive relief, only 7 cognizable claims against Defendants may go forward. See Armstrong v. Wilson, 8 124 F.3d 1019, 1025 (9th Cir. 1997). “To prevail on a claim against a municipal 9 entity for a constitutional violation, a plaintiff must show that an official’s action

10 that caused the plaintiff’s injury was pursuant to [an] official municipal policy [or 11 custom] of some nature.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 793 (9th 12 Cir. 2016) (en banc) (citation and internal quotation marks omitted).

13 Here, however, Plaintiffs have alleged no such policy or custom. Rather, 14 Plaintiffs note that on February 29, 2020, Defendant Governor Inslee issued 15 “Proclamation by the Governor 20-05 ‘State of Emergency’”, and declared that 16 COVID-19 creates “an extreme public health risk that may spread quickly…” ECF

17 No. 9 at 19. Plaintiffs assert that measures were taken in an attempt to slow the 18 spread of COVID-19, including the suspension of visitation at all prisons and the 19 implementation of mask mandates. Id. Although there may have been instances in

20 which Defendants’ policies were not followed — such as staff noncompliance with 1 quarantine or disinfection guidelines — this does not reflect that the 2 policies themselves were objectively insufficient. Instead, it supports only that

3 various staff or other individuals, who are not named as Defendants to this action, 4 have failed to comply with Defendants’ COVID-19-related policies. Such failures 5 do not support an Eighth Amendment violation by Defendants in their official

6 capacities. Plaintiffs have failed to allege sufficient facts to state a claim against 7 Defendants in their official capacities. 8 b. Individual Capacity Claims 9 The Eleventh Amendment does not bar suits seeking damages

10 against state officials in their individual capacities. Hafer v. Melo, 502 U.S. 21, 30– 11 31 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). Liability may not be 12 imposed on supervisory personnel for the actions or omissions of their subordinates

13 under the theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676–77 14 (2009); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Supervisors 15 may be held liable only if they “participated in or directed the violations, or knew 16 of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040,

17 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 18 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). However, “[a] 19 defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a

20 sufficient causal connection between the supervisor’s wrongful conduct and the 1 constitutional violation.’” Starr, 652 F.3d at 1207 (quoting Hansen v. Black, 885 2 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by

3 alleging that a defendant (1) “set[ ] in motion a series of acts by others”; (2) 4 “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] 5 knew or reasonably should have known would cause others to inflict a constitutional

6 injury”; (3) failed to act or improperly acted in the training, supervision, or control 7 of his subordinates; (4) “acquiesc[ed] in the constitutional deprivation”; or (5) 8 engaged in “conduct that showed a reckless or callous indifference to the rights of 9 others.” Id. at 1205–09.

10 Plaintiffs’ SAC includes a generalized allegation that DOC staff were given 11 specific directives to report to work while asymptomatic despite CDC guidelines 12 that required an individual who had close contact with a known COVID-19 case but

13 had no symptoms to quarantine and be monitored for 14 days. ECF No. 9 at 21. 14 Plaintiffs do not allege that any named Defendant issued this directive. Moreover, 15 Plaintiffs contend that during each COVID-19 outbreak at AHCC, they witnessed 16 “mass migrations” of individuals being moved from unit to unit, often while still

17 awaiting the results of COVID-19 tests, and that on more than one occasion 18 Plaintiffs were made aware of individuals in a negative area with positive COVID- 19 19 test results. Id. at 25. They also claim that neither Plaintiff was placed in

20 quarantine while awaiting their test results, and that Defendants denied Plaintiffs 1 access to EPA-registered disinfectants. Id. at 21, 24, 26. These allegations, 2 however, are not tied to any named Defendant. See Cedillos v. Youngblood, No.

3 1:21-cv-00138-DAD-BAM (PC), 2021 WL 2534534, at *2 (E.D. Cal. June 21, 4 2021) (“Plaintiff attributes all COVID issues to the ‘administration,’ or the medical 5 chief or officers or nurses, but does not state what each person did or did not do

6 which violated his constitutional rights. Plaintiff must name each person he 7 believes violated his constitutional rights.”). Plaintiffs fail to allege facts showing 8 how each Defendant specifically was responsible for such failings, or to allege a 9 causal link between each Defendant and the claimed constitutional violation. See,

10 e.g., Id. at *3 (concluding that prisoner failed to state Section 1983 claims due to 11 allegations of “failings in social distancing and unclean cells and showers” 12 during COVID-19 pandemic, where plaintiff failed to allege causal link between

13 defendants and violations); Stephen v. Tilestone, No. 2:20-cv-1841-KJN-P, 2021 14 WL 289379, at *6 (E.D. Cal. Jan. 28, 2021) (concluding that plaintiff failed to 15 allege Eighth Amendment violation for prison transfer that purportedly put him at 16 extreme risk of contracting COVID-19 because he did not allege facts showing how

17 any particular defendant violated his rights). Instead, the SAC frequently clumps 18 “Defendants” together, without detailing any specific action by each Defendant. 19 These allegations against Defendants do not state a claim upon which relief can be

20 granted. 1 However, Plaintiffs take issue with Defendants’ alleged failure “to take swift 2 actions to enforce policies which would have corrected the hazards that posed a risk

3 to Plaintiffs’ health and safety.” ECF No. 9 at 22. In their SAC, Plaintiffs allege 4 that on February 1, 2021, the Department of L&I determined that both Plaintiffs, as 5 WCI workers, had been harmed by a lack of COVID-19 safeguards in their WCI

6 workplace in November 2020, and that the published narratives of Department of 7 L&I fines issued in June and December 2021 show that Defendants failed to correct 8 these recognized hazards. Id. at 27. Plaintiffs allege that each of the named 9 Defendants, Governor Inslee, Sinclair, Strange, Murphy, Uttecht, Sytsma, Dr.

10 Kariko, and Miller, were respondents to all three Department of L&I citations, and 11 that in January 2022, just weeks after the Department of L&I issued its “most 12 serious” of these citations, the DOC experienced another department-wide COVID-

13 19 outbreak and Plaintiffs contracted COVID-19 for a second time. Id. at 22. 14 Supervisors may be held liable only if they “participated in or directed the 15 violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 16 F.2d at 1045 (emphasis added). Liberally construing Plaintiffs’ allegations in the

17 SAC, Plaintiffs have alleged facts sufficient to state an Eighth Amendment claim 18 against all of the named Defendants with respect to the COVID-19 response within 19 AHCC.

20 1 2. Allegations Against Defendant Sytsma 2 Plaintiffs assert that they were WCI workers at AHCC. ECF No. 9 at 37–38.

3 They claim that Defendant Sytsma, as supervisor of the WCI workers, denied 4 Plaintiffs a safe work environment by incentivizing production over sanitation 5 during and just prior to each COVID-19 outbreak at AHCC. Id. at 15, 27, 37–38.

6 They contend that Defendant Sytsma emphasized a system that did not include a 7 sanitation step during production and intentionally ignored social distancing 8 through person-to-person passing of raw materials, often without personal 9 protective equipment. Id. at 37–38.

10 As discussed above, Plaintiffs allege that on February 1, 2021, the 11 Department of L&I determined that both Plaintiffs were “injured workers”, having 12 been harmed by a lack of COVID-19 safeguards in their WCI workplace in

13 November 2020, and that to date, Defendant Sytsma, and all other named 14 Defendants, who were Respondents to the Department of L&I citations, have failed 15 to correct these hazards. ECF No. 9 at 27. Liberally construed, Plaintiffs have 16 stated an Eighth Amendment claim for relief against Defendant Sytsma related to

17 the denial of a safe work environment. 18 3. Allegations Against Defendant Uttecht 19 Plaintiffs contend that under Defendant Uttecht’s supervision as Deputy

20 Director of DOC’s Eastern Command, the practice at AHCC of handling Plaintiffs’ 1 grievances related to COVID-19 hazards has been either to delay until evidence is 2 no longer available, or outright deny their grievances. ECF No. 9 at 14, 38.

3 Plaintiffs claim that Defendant Uttecht has failed to act despite Plaintiffs’ 4 grievances and being informed in writing of the conditions of which Plaintiffs 5 complain. Id. at 38.

6 Prisoners lack a constitutional right to a specific grievance procedure. See 7 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 8 639, 640 (9th Cir. 1988). Further, the failure of prison officials to entertain an 9 inmate’s administrative grievance does not violate his or her constitutional rights

10 because the right to petition the government is the right of access to the courts, not 11 the administrative process. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); 12 see also Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003) (“The

13 right to petition the government for redress of grievances, however, does not 14 guarantee a favorable response, or indeed any response, from state officials.”). 15 To the extent that Plaintiffs may be attempting to assert a claim against 16 Defendant Uttecht related to their grievance responses, or lack thereof, Plaintiffs’

17 assertions regarding the processing of, and responses to, their grievances do not 18 state a claim upon which relief may be granted. Plaintiffs’ mere dissatisfaction with 19 the remedy process or its results cannot, without more, support a claim for relief for

20 violation of a constitutional right. Therefore, Plaintiffs have not stated a claim for 1 relief related to the processing of or responses to their grievances against Defendant 2 Uttecht or any of the other named Defendants.

3 B. Deliberate Indifference to Basic Human Needs 4 In Count Two, Plaintiffs claim that Defendants have been deliberately 5 indifferent to Plaintiffs’ basic human needs ECF No. 9 at 20, 37–40. They claim

6 that the RCF quarantine environment at AHCC, where Plaintiff Wilson was placed 7 after testing positive for COVID-19 the first time, had no heat because of a known 8 HVAC malfunction, and had an outdoor toilet which was known to be frozen during 9 the winter. Id. at 24.

10 1. Heating 11 Plaintiffs claim that AHCC had systemic shelter deficiencies during COVID- 12 19 outbreaks, which denied Plaintiffs heat and exposed them to winter weather

13 conditions while they were suffering from COVID-19 symptoms. ECF No. 9 at 26, 14 40. “The Eighth Amendment guarantees adequate heating.” Keenan v. Hall, 83 15 F.3d 1083, 1091 (9th Cir.1996). Exposure to temperature that is merely 16 uncomfortable, however, is not such a serious deprivation as to violate the Eighth

17 Amendment. Id. 18 To state a claim under the Eighth Amendment, a plaintiff must allege not 19 only a sufficiently serious deprivation but also that “the defendant officials had

20 actual knowledge of the plaintiffs’ basic human needs and deliberately refused to 1 meet those needs.” Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000). A plaintiff 2 may prove such knowledge through inference from circumstantial evidence. Id.

3 Here, Plaintiffs contend that during the cold months of December 2020, and 4 at the height of his severe COVID-19 symptoms, Plaintiff Wilson was denied heat 5 for approximately two weeks because the HVAC system in the RCF was

6 malfunctioning. ECF No. 9 at 24–25. They claim that Plaintiff Wilson presented 7 information that Plaintiffs were denied heat and exposed to winter weather 8 conditions while suffering from COVID-19 symptoms to several media outlets and 9 the Corrections Ombudsman, but rather than investigate these claims, Defendant

10 Governor Inslee sought to discredit them. Id. at 39. Plaintiffs assert that Defendant 11 Governor Inslee stated, “[s]ometimes there are stories that are reported in our great 12 media that just are not accurate. Sometimes rumors get started by individuals who

13 are incarcerated that are frankly false.” Id. at 39. 14 Plaintiffs have failed to allege a causal connection between any of the named 15 Defendants and Plaintiffs’ claim that Plaintiff Wilson was denied heat for 16 approximately two weeks. They fail to provide sufficient factual specificity about

17 any named Defendants’ awareness of this condition. While they claim that they 18 presented this information to several media outlets and the Corrections 19 Ombudsman, Plaintiffs fail to allege sufficient facts to show that Defendant

20 Governor Inslee’s quote was in response to their claim of lack of heat in the AHCC. 1 Thus, Plaintiffs have failed to state a plausible Eighth Amendment claim against 2 Defendants for denial of heat during winter weather conditions.

3 2. Unsanitary Conditions of Confinement 4 In assessing unconstitutional conditions of confinement claims, courts 5 consider “[t]he circumstances, nature, and duration of a deprivation of these

6 necessities.” Johnson, 217 F.3d at 731. “The more basic the need, the shorter the 7 time it can be withheld.” Id. “[T]oilets can be unavailable for some period of time 8 without violating the Eighth Amendment.” Id. at 733. However, subjecting a 9 prisoner to a “severe or prolonged” lack of sanitation “can constitute an infliction

10 of pain within the meaning of the Eighth Amendment.” Anderson v. Cnty. of Kern, 11 45 F.3d 1310, 1314 (9th Cir. 1995), opinion amended on denial of reh’g, 75 F.3d 12 448 (9th Cir. 1995).

13 1. Plaintiff Wilson 14 Plaintiffs claim that for days, Plaintiff Wilson and 16 other inmates were 15 required to urinate and defecate on top of overflowing septic in order to relieve their 16 diarrhea while suffering from COVID-19. ECF No. 9 at 25. They contend that

17 when the RCF population increased to 27 patients, a single portable toilet was 18 provided but staff would close access to the toilet for at least 30 minutes due to the 19 cold weather. Id. They allege that at times, Plaintiff Wilson was “denied emergent

20 access for hours” because the septic system was malfunctioning. Id. Plaintiffs 1 claim that all Defendants, other than Defendant Sytsma, “had both the requisite 2 knowledge and authority to act, and willfully chose not to.” Id. at 26. This

3 conclusory allegation does not state a plausible Eighth Amendment claim against 4 Defendants. 5 Plaintiffs contend that Defendants Governor Inslee and Strange were given

6 official written notice of the denial of bathroom facilities, but according to a 7 grievance response from AHCC staff, bathroom facilities can be denied by 8 Defendant Dr. Kariko under color of law during COVID-19 outbreaks. ECF No. 9 9 at 38. They allege that neither Defendant Governor Inslee nor Defendant Strange

10 took steps to act. Id. However, although Plaintiffs assert that Defendants Governor 11 Inslee and Strange were given official written notice of the denial of bathroom 12 facilities, they state that the grievance response regarding the denial of bathroom

13 facilities was from AHCC staff, not Defendants Governor Inslee or Strange. Id. at 14 38. 15 Further, Plaintiffs claim that as of December 17, 2021, the Department of 16 L&I had fined the DOC and Defendants at least three different times for conditions

17 that Defendant Governor Inslee had “turned a blind eye to.” ECF No. 9 at 39. 18 However, Plaintiffs assert in their SAC that the Department of L&I fines were 19 related to a lack of COVID-19 safeguards in Plaintiffs’ WCI workplace. Id. at 27.

20 With respect to this allegation, Plaintiffs have not alleged sufficient facts to state an 1 Eighth Amendment violation against Defendants Governor Inslee or Strange. See 2 Johnson, 217 F.3d at 734 (To state a claim under the Eighth Amendment, a plaintiff

3 must allege not only a sufficiently serious deprivation but also that “the defendant 4 officials had actual knowledge of the plaintiffs’ basic human needs and deliberately 5 refused to meet those needs.”)

6 Plaintiffs allege that Defendant Strange has been directly responsible for the 7 management of the DOC and for the administration of all adult correctional 8 programs since her appointment as Washington State’s Secretary of Corrections on 9 April 29, 2021. ECF No. 9 at 10, 14. Plaintiffs’ claims that Plaintiff Wilson and

10 other inmates were forced to urinate and defecate on top of overflowing septic 11 occurred in December 2020, several months before Defendant Strange was 12 appointed to her current position. Id. at 25. Plaintiffs’ allegation that at times

13 Plaintiff Wilson was “denied emergent access for hours” because the septic system 14 was malfunctioning also occurred prior to Defendant Strange’s appointment. Id. 15 Plaintiffs have not alleged any facts to show that Defendant Strange was 16 deliberately indifferent to unsanitary conditions of confinement in the RCF prior to

17 her appointment as the DOC Secretary of Corrections. 18 Plaintiffs contend that the restrictions on Plaintiff Wilson’s toilet use during 19 bouts of diarrhea in December 2020 were the result of a decision by Defendant Dr.

20 Kariko, and that according to a grievance response from AHCC staff, bathroom 1 facilities can be denied by Defendant Dr. Kariko under color of law during COVID- 2 19 outbreaks. ECF No. 9 at 26, 38. Liberally construed, Plaintiffs have alleged

3 sufficient facts to state a plausible Eighth Amendment claim against Defendant Dr. 4 Kariko for deliberate indifference to unsanitary conditions affecting Plaintiff 5 Wilson in December 2020.

6 Plaintiffs assert that Plaintiff Wilson’s specialists are investigating a possible 7 link between his spinal disease and his bowel and bladder incontinence. ECF No. 8 9 at 28. They claim that by denying Plaintiff Wilson access to a toilet with 9 knowledge of this and other associated medical conditions, Defendants Strange,

10 Murphy, Uttecht, and Dr. Kariko were deliberately indifferent to Plaintiff Wilson’s 11 serious medical needs. Id. at 26, 28. Plaintiffs do not allege sufficient facts to show 12 that Defendants Strange, Murphy, or Uttecht were aware of Plaintiff Wilson’s spinal

13 disease or his bowel and bladder incontinence. This conclusory allegation does not 14 state a plausible Eighth Amendment claim against Defendants Strange, Murphy, or 15 Uttecht. As noted above, Plaintiffs have stated a plausible claim against Defendant 16 Dr. Kariko for deliberate indifference to unsanitary conditions affecting Plaintiff

17 Wilson in December 2020. 18 2. Plaintiffs Wilson and Lawrence 19 Plaintiffs assert that on January 21, 2022, both Plaintiffs were denied

20 unencumbered access to a toilet while suffering from COVID-19 symptoms, they 1 were forced to wait for hours, they had to receive permission to have their door 2 unlocked to use the toilet, and they were denied their right to bodily integrity for

3 more than twenty hours. ECF No. 9 at 26. Plaintiffs assert that Defendants 4 Governor Inslee and Strange were given official written notice of the denial of 5 bathroom facilities, but failed to take steps to act, and that the bathroom restrictions

6 were the result of a decision by Defendant Dr. Kariko. Id. at 38. 7 As noted above, “toilets can be unavailable for some period of time without 8 violating the Eighth Amendment.” Johnson, 217 F.3d at 733. Plaintiffs’ claims of 9 being denied “unencumbered access” to a toilet, waiting hours, and being required

10 to receive permission to have their door unlocked to use the toilet, as presented, do 11 not appear to be a “severe or prolonged” lack of sanitation that rises to the level of 12 an infliction of pain within the meaning of the Eighth Amendment. See Anderson,

13 45 F.3d at 1314. Although Plaintiffs allege that they were “denied their right to 14 bodily integrity for more than twenty hours[,]” they do not present facts that they 15 were denied the use of the toilet during that period of time. ECF No. 9 at 26. 16 Further, Plaintiffs do not allege that they were suffering from incontinence or

17 diarrhea at the time. As presented, Plaintiffs have failed to allege sufficient facts to 18 state an Eighth Amendment deliberate indifference claim against Defendants for 19 unsanitary conditions concerning both Plaintiffs on January 21, 2022.

20 1 C. Denial of Medical Care 2 In Count Three, Plaintiffs claim that Defendants have been deliberately

3 indifferent to Plaintiffs’ medical needs. ECF No. 9 at 41. Specifically, they claim 4 that Defendants Sinclair, Strange, Murphy, Uttecht, Miller, and Dr. Kariko denied 5 Plaintiffs access to medical care during COVID-19 outbreak periods by suspending

6 clinical care due to avoidable systemic deficiencies. Id. at 27, 40–41. They allege 7 that it is a practice of AHCC to discontinue clinical and specialized care during 8 COVID-19 outbreaks and Plaintiffs have realized a denial of medical care under 9 two such discontinuances. Id. at 27. Plaintiffs claim that denials have included, but

10 are not limited to, neurologists for seizures and migraines, cardiologists, vascular 11 specialists, pulmonologists, and imaging specialists. Id. They assert that both 12 Plaintiffs experienced delays in medical care for months, and in some cases several

13 symptoms remain untreated. Id. at 27–30, 41. 14 The Eighth Amendment includes the right to adequate medical and mental 15 health treatment in prison. Prison officials or prison medical providers can be held 16 liable if their “acts or omissions [were] sufficiently harmful to

17 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 18 U.S. 97, 106 (1976). As to the objective standard for prisoners’ medical 19 care claims, “society does not expect that prisoners will have unqualified access to

20 health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Therefore, 1 “deliberate indifference to medical needs amounts to 2 an Eighth Amendment violation only if those needs are ‘serious.’ ” Id. The Ninth

3 Circuit has defined a “serious medical need” in the following ways: 4 failure to treat a prisoner’s condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain[;] 5 ... [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a 6 medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain .... 7

8 McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (internal citations 9 omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 10 (9th Cir. 1997). 11 In the medical context, deliberate indifference can be “manifested by prison 12 doctors in their response to the prisoner’s needs or by prison guards in intentionally 13 denying or delaying access to medical care or intentionally interfering with the 14 treatment once prescribed.” Estelle, 429 U.S. at 104–05 (footnotes omitted). 15 Medical malpractice or negligence does not support a cause of action under 16 the Eighth Amendment, Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 17 1980) (per curiam), and a delay in medical treatment does not violate 18 the Eighth Amendment unless that delay causes further harm, McGuckin, 974 F.2d 19 at 1060. If medical personnel have been “consistently responsive to [the inmate’s]

20 medical needs,” and the plaintiff has not shown that the medical personnel had 1 “subjective knowledge and conscious disregard of a substantial risk of serious 2 injury,” there has been no Eighth Amendment violation. Toguchi v. Chung, 391

3 F.3d 1051, 1061 (9th Cir. 2004). 4 1. Plaintiff Wilson 5 Plaintiffs claim that during periods of clinical care suspensions in response

6 to COVID-19 outbreaks at AHCC, Plaintiff Wilson’s diabetes, seizures, and mental 7 health have gone unmonitored and/or untreated for months. ECF No. 9 at 27. They 8 assert that an Independent Ombudsmen investigation determined that Plaintiff 9 Wilson was denied care for up to six months for his debilitating spine condition due

10 to systemic staff deficiencies that were not corrected by Defendants. Id. at 41. They 11 allege that the preliminary finding from the Independent Ombudsmen investigation 12 was that Plaintiff Wilson’s medication, treatment, and overall medical care had been

13 delayed and/or denied since November 2020. Id. at 27. Plaintiffs do not allege who 14 was found to be responsible for the delays in Plaintiff Wilson’s care, but they claim 15 that in some cases, such as in a November 13, 2020 “(OCO) Investigative Report”, 16 Defendant Dr. Kariko’s leadership ability was considered to be contributing to

17 similar delays and/or denials in care. Id. 18 2. Plaintiff Lawrence 19 Plaintiffs assert that throughout the pandemic, Plaintiff Lawrence’s access to

20 medical care has been delayed and/or denied as a result of AHCC’s clinical care 1 suspensions and the failure of the medical kite system. ECF No. 9 at 32. Plaintiffs 2 contend that, although reportedly ordered by his provider, Plaintiff Lawrence

3 experienced intervals of weeks where blood labs were not conducted, which ceased 4 all progression of any treatment because his conditions remain “unknown.” ECF 5 No. 9 at 42. Plaintiffs claim that without an examination, Plaintiff Lawrence’s

6 provider has offered him an antidepressant to treat his migraine symptoms without 7 knowing their cause and has failed to or outright refused to refer Plaintiff Lawrence 8 to a specialist. Id. at 29, 32. Plaintiff Lawrence’s provider is not named as a 9 Defendant to this action.

10 Plaintiffs claim that Defendant Dr. Kariko, as Washington State DOC’s Chief 11 Medical Officer, was a decision-maker in the DOC’s Emergency Operations 12 Center. ECF No. 9 at 10, 15. They allege that Defendant Dr. Kariko permitted a

13 policy where Plaintiffs’ essential diagnostic facts were not inquired into through 14 laboratory blood work-ups, physical examinations, or imaging. Id. at 42. They do 15 not, however, allege that Defendant Dr. Kariko directed the clinical care 16 suspensions during COVID-19 outbreak periods at AHCC.

17 Rather, Plaintiffs allege that HSM McIntyre, who is not named as a 18 Defendant to this action, directed the suspensions of medical care at AHCC during 19 COVID-19 outbreak periods. ECF No. 9 at 33. Plaintiffs claim that Defendants

20 Strange, Murphy, Uttecht, Miller, and Dr. Kariko knew on January 21, 2022, by 1 virtue of a DOC notice, that clinic and specialized services for AHCC inmates were 2 being “discontinued” indefinitely. Id. They contend that Defendants Strange,

3 Murphy, Uttecht, Miller, and Dr. Kariko knew or should have reasonably known 4 that Plaintiffs would be harmed by an interruption of medical services while they 5 were infected with COVID-19 and suffering from known serious medical

6 conditions. Id. 7 Liberally construed, Plaintiffs have alleged sufficient facts to show that 8 Defendants Strange, Murphy, Uttecht, Miller, and Dr. Kariko were aware of a 9 deprivation of Plaintiffs’ rights and failed to act. As presented, Plaintiffs have

10 alleged sufficient facts to state a plausible Eighth Amendment denial of medical 11 care claim against Defendants Strange, Murphy, Uttecht, Miller, and Dr. Kariko. 12 PLAINTIFFS’ CONSTRUED MOTION FOR RECONSIDERATION

13 BEFORE THE COURT is Plaintiffs’ Construed Motion for Reconsideration. 14 ECF No. 7. Plaintiffs ask that the Court’s Second Order to Amend and Denying 15 Request for Joinder, ECF No. 6, “be rejected in part, and that [Plaintiffs’] complaint 16 be allowed to proceed to the discovery and motions phase, without further scrutiny,

17 so that the parties might be given a full and fair opportunity to answer the legitimate 18 inferences the Plaintiffs’ FAC gives fair notice of, and the grounds upon which it 19 rests.” Id. at 2–3, 9. Alternatively, Plaintiffs request de novo review of the Second

20 Order to Amend and Denying Request for Joinder. Id. at 9. 1 On July 6, 2022, eight days after filing their Construed Motion for 2 Reconsideration, Plaintiffs filed a Second Amended Complaint against all

3 Defendants in their official and individual capacities. ECF No. 9. As discussed 4 above, after a review of Plaintiffs’ SAC and liberally construing the claims in the 5 light most favorable to Plaintiffs, the Court finds that Plaintiffs have alleged facts

6 sufficient to state an Eighth Amendment claim against all of the named Defendants 7 with respect to the COVID-19 response within AHCC. The Court also finds that 8 Plaintiffs have alleged sufficient facts to state an Eighth Amendment claim for relief 9 against Defendant Sytsma related to the denial of a safe work environment, against

10 Defendant Dr. Kariko for deliberate indifference to unsanitary conditions affecting 11 Plaintiff Wilson in December 2020, and against Defendants Strange, Murphy, 12 Uttecht, Miller, and Dr. Kariko for the denial of medical care. In light of Plaintiffs’

13 subsequent submissions, and for the reasons set forth in the instant screening Order, 14 Plaintiffs’ Construed Motion for Reconsideration is denied as moot. 15 CONSTRUED MOTION FOR RECUSAL 16 BEFORE THE COURT is Plaintiffs’ Construed Motion for Recusal.3 ECF

17 No. 8. “The standard for recusal under 28 U.S.C. §§ 144 [&] 455 is whether a 18

19 3 The Court construes Plaintiffs’ request for disqualification as a request for recusal 20 of the undersigned judicial officer. 1 reasonable person with knowledge of all the facts would conclude that the judge’s 2 impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d

3 934, 939 (9th Cir. 1986) (quotations and citations omitted). “It is well settled that 4 a motion for recusal under 28 U.S.C. § 144 or § 455…must be based upon prejudice 5 from an extra-judicial source.” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d

6 1287, 1301 (D.C. Cir. 1988). “[A] judge’s prior adverse ruling[,]” which is not 7 extra-judicial, “is not sufficient cause for recusal.” Studley, 783 F.2d at 939. 8 Further, 28 U.S.C. § 144 requires a party seeking recusal to file a “sufficient 9 affidavit that the judge before whom the matter is pending has a personal bias or

10 prejudice either against him or in favor of any adverse party…” 28 U.S.C. § 144. 11 The affidavit must “state the facts and the reasons for the belief that bias or prejudice 12 exists,” and “[a] party may file only one such affidavit in any case.” Id.

13 The undersigned judicial officer must initially determine whether Plaintiff 14 has filed an affidavit that is legally sufficient. See United States v. Azhocar, 581 15 F.2d 735, 738 (9th Cir. 1978) (“the judge against whom an affidavit of bias is filed 16 may pass on its legal sufficiency”) (citations omitted). “An affidavit filed pursuant

17 to [28 U.S.C. § 144] is not legally sufficient unless it specifically alleges facts that 18 fairly support the contention that the judge exhibits bias or prejudice directed 19 toward a party that stems from an extrajudicial source.” United States v. Sibla, 624

20 F.2d 864, 868 (9th Cir. 1980). 1 Each Plaintiff has filed a declaration under penalty of perjury in support of 2 their Construed Motion for Recusal. ECF No. 8-1 at 1–2; ECF No. 8-2 at 1–2. The

3 Court finds Plaintiffs’ declarations to be legally insufficient. An affidavit filed 4 under 28 U.S.C. § 144 is not legally sufficient unless it specifically alleges facts 5 that fairly support the contention that a judge exhibits bias or prejudice directed

6 toward a party that stems from an extrajudicial source. Sibla, 624 F.2d at 868. 7 Plaintiffs’ declarations contain only assertions disputing the Second Order to 8 Amend and Denying Request for Joinder issued by the undersigned judicial officer 9 and is devoid of specific factual allegations tending to show personal bias stemming

10 from an extrajudicial source. See Studley, 783 F.2d at 939. 11 In their declarations, Plaintiffs contend that their questions regarding the 12 undersigned judicial officer’s impartiality “rise and rely solely on his June 9, 2022

13 ruling in this case…” ECF No. 8-1 at 1; ECF No. 8-2 at 1. Plaintiffs have offered 14 no basis for recusal other than their disagreement with this Court’s Second Order to 15 Amend and Denying Request for Joinder. Judicial rulings alone almost never 16 constitute a valid basis for a bias or partiality motion. See Davis v. Fendler, 650

17 F.2d 1154, 1163 (9th Cir. 1981) (“In the absence of specific allegations of personal 18 bias, prejudice, or interest, neither prior adverse rulings of a judge nor his 19 participation in a related or prior proceeding is sufficient” to require recusal). The

20 1 Court thus finds no basis for recusal in this matter and therefore, Plaintiffs’ 2 Construed Motion for Recusal is denied.

3 CONSTRUED REQUEST FOR ELECTRONIC FILING 4 EXEMPTION 5 BEFORE THE COURT is Plaintiffs’ Construed Request for an Exemption

6 from Electronic Filing with the Court. ECF No. 10. Plaintiffs assert that there is 7 good cause for abeyance of Federal Rule of Civil Procedure 5(d)(3)(B)(ii), which 8 states that unrepresented parties “may be required to file electronically only by court 9 order, or by a local rule that includes reasonable exceptions.” Id. at 1, citing Fed.

10 R. Civ. P. 5(d)(3)(B)(ii). 11 Plaintiffs contend that abeyance of FRCP Rule 5(d)(3)(B)(ii) is necessary in 12 this case because Defendants’ agents are Plaintiffs’ sole source of ECF access and

13 since January 2022, these agents have not presented themselves as faithful 14 facilitators with respect to the ECF filing process. ECF No. 10 at 1–2. Plaintiffs 15 claim that they have experienced exceptional and unjustified delays in the 16 transmission of ECF notifications, especially when they include orders from the

17 Court, and these delays have prejudiced Plaintiffs’ ability to timely meet the Court’s 18 amendment requirements. Id. at 2. Plaintiffs allege that the Court’s Second Order 19 to Amend and Denying Request for Joinder, ECF No. 6, was delayed and Plaintiffs

20 received a copy by U.S. Mail from an outside source two days before Defendants’ 1 agents provided them with a copy. Id. at 2–3. They claim that due to repetitive 2 delays in receiving ECF notifications from the Court, Plaintiffs’ have been

3 prejudiced and Defendants have hindered Plaintiffs’ communication conduit to the 4 Court. Id. at 3. 5 Further, Plaintiffs claim that they are denied access to ECF services during

6 COVID-19 lockdowns in AHCC, and lockdowns have historically lasted for weeks. 7 ECF No. 10 at 2. They also allege that due to COVID-19 mitigation efforts within 8 AHCC, there is limited law library access and ECF filing access is not guaranteed 9 due to high volumes of law library request “turn aways.” Id.

10 This District’s Local Civil Rule 3(b)(1) states, “(1) In General. All civil cases 11 shall be filed electronically using the Electronic Filing System and shall be 12 governed by the Court’s Administrative Procedures for Electronic Case Filing…”

13 LCivR 3(b)(1). Plaintiffs’ Construed Request for an Exemption from Electronic 14 Filing with the Court is denied at this time, as Plaintiffs have the ability to file 15 motions for extensions of time with the Court should they need additional time to 16 prepare and file documents in this case. To date, no such extension requests have

17 been filed. 18 FINAL OPPORTUNITY TO AMEND 19 Liberally construing Plaintiffs’ SAC, Plaintiffs have alleged sufficient facts

20 at Count One to state an Eighth Amendment claim against all of the named 1 Defendants with respect to the COVID-19 response within AHCC. Plaintiffs have 2 also alleged sufficient facts at Count One to state an Eighth Amendment claim for

3 relief against Defendant Sytsma related to the denial of a safe work environment. 4 At Count Two, Plaintiffs have alleged sufficient facts to state a plausible Eighth 5 Amendment claim against Defendant Dr. Kariko for deliberate indifference to

6 unsanitary conditions affecting Plaintiff Wilson in December 2020. At Count 7 Three, Plaintiffs have alleged sufficient facts to state a plausible Eighth Amendment 8 denial of medical care claim against Defendants Strange, Murphy, Uttecht, Miller, 9 and Dr. Kariko.

10 As presented, the Court finds that at Count One, Plaintiffs have failed to state 11 a claim upon which relief may be granted against any Defendant related to the 12 processing of or responses to their grievances. The Court also finds that at Count

13 Two, Plaintiffs’ present allegations fail to state a claim upon which relief may be 14 granted against any Defendant for denial of heat during winter weather conditions, 15 against any Defendant, other than Dr. Kariko, for deliberate indifference to 16 unsanitary conditions affecting Plaintiff Wilson in December 2020, or against any

17 Defendant for deliberate indifference to unsanitary conditions concerning both 18 Plaintiffs on January 21, 2022. 19 Unless it is absolutely clear that amendment would be futile, a pro se litigant

20 must be given the opportunity to amend his complaint to correct any deficiencies. 1 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute on other 2 grounds, 28 U.S.C. § 1915(e)(2), as stated in Aktar v. Mesa, 698 F.3d 1202, 1212

3 (9th Cir. 2012). In response to Plaintiffs’ assertions in their Construed Request for 4 an Exemption from Electronic Filing with the Court, ECF No. 10, related to 5 COVID-19 lockdowns and potential limited access to the law library due to

6 COVID-19 mitigation efforts within AHCC, Plaintiffs may submit a Third and 7 Final Amended Complaint within forty-five (45) days of the date of this Order 8 which must include sufficient facts to state a claim upon which relief may be granted 9 against each named Defendant. Plaintiffs shall clearly and concisely state facts

10 showing that the identified Defendants violated their Eighth Amendment rights as 11 to each claim. 12 Plaintiffs’ Third Amended Complaint shall consist of a short and plain

13 statement showing that Plaintiffs are entitled to relief. Plaintiffs shall allege with 14 specificity the following: 15 (1) the names of the persons who caused or personally participated in causing the alleged deprivation of their constitutional rights, 16 (2) the dates on which the conduct of each Defendant allegedly took place, 17 and

18 (3) the specific conduct or action Plaintiffs allege is unconstitutional.

19 Furthermore, Plaintiffs shall set forth their factual allegations in separate 20 numbered paragraphs. PLAINTIFFS’ THIRD AMENDED COMPLAINT WILL 1 OPERATE AS A COMPLETE SUBSTITUTE FOR (RATHER THAN A MERE 2 SUPPLEMENT TO) THE PRIOR AND PRESENT COMPLAINTS. Plaintiffs

3 shall present their amended complaint on the form provided by the Court. 4 Plaintiffs’ Third Amended Complaint must be legibly rewritten or retyped in its 5 entirety, it should be an original and not a copy, it may not incorporate any part of

6 the original or present complaints by reference, and PLAINTIFFS’ THIRD 7 AMENDED COMPLAINT MUST BE CLEARLY LABELED THE “THIRD 8 AMENDED COMPLAINT.” Plaintiffs’ Third Amended Complaint must be 9 clearly labeled with cause number 2:22-CV-0014-TOR written in the caption.

10 If Plaintiffs choose not to amend their complaint within this forty-five-day 11 period, the Court will proceed to dismiss the SAC in part for failure to state a claim 12 upon which relief may be granted. The Court will then direct that Plaintiffs’

13 plausible Eighth Amendment deliberate indifference claims, as stated above, be 14 served on Defendants in accordance with this Order. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. Plaintiffs’ Construed Motion for Reconsideration, ECF No. 7, is

17 DENIED as moot. 18 2. Plaintiffs’ Construed Motion for Recusal, ECF No. 8, is DENIED. 19 3. Plaintiffs’ Construed Request for an Exemption from Electronic

20 Filing with the Court, ECF No. 10, is DENIED. 1 4. Plaintiffs may file a Third and Final Amended Complaint within 2 forty-five (45) days of the date of this Order, consistent with the

3 instructions set forth above. 4 A. If Plaintiffs fail to file within forty-five (45) days as 5 directed, the Court will proceed to dismiss the Second

6 Amended Complaint in part for failure to state a claim upon 7 which relief may be granted, consistent with the instructions 8 set forth above.

9 B. The Court will then direct that Plaintiffs’ Eighth Amendment 10 deliberate indifference claims be served on Defendants, 11 consistent with the instructions set forth above. 12 5. The Clerk’s Office shall SET a case management deadline forty- 13 five (45) days after the date of this Order. 14 IT ISSO ORDERED. The Clerk’s Office is directed to enter this Order and 15 forward a copy to both Plaintiffs, along with a civil rights complaint form.

16 DATED August 3, 2022. | py 4%. ov:

18 Ay gp = Hina 0 Kies □□ THOMAS O. RICE 19 United States District Judge 20