Opinion
CV 21-1520-JFW(E)
10-27-2022
NATHAN HALL, Plaintiff, v. KATHLEEN ALLISON, ET AL., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, a state prisoner confined at the California Men's Colony (“CMC”), filed this civil rights action on February 12, 2021. The original Complaint named one Defendant: CMC Warden Josie “Gastello,” sued in her individual capacity. Plaintiff alleged that Defendant violated the Eighth Amendment by failing to follow Covid-19 guidelines issued by the United States Centers for Disease Control and Prevention (“CDC”) and state and federal governments. Plaintiff sought injunctive and declaratory relief, as well as damages.
On February 24, 2021, the Court granted Plaintiff's application to proceed without prepayment of the full filing fee (“in forma pauperis” or “IFP”). On May 21, 2021, Defendant filed a motion for an order revoking Plaintiff's IFP status. On June 7, 2021, Plaintiff filed an opposition to the motion and an “Ex Parte Motion to Amend the Complaint.”
On July 7, 2021, the Court issued an Order denying Defendant's motion for an order revoking Plaintiff's IFP status. The same Order denied Plaintiff's “Ex Parte Motion to Amend the Complaint” without prejudice for failure to file therewith a proposed amended complaint. On July 19, 2021, Plaintiff filed another “Ex Parte Motion to Amend the Complaint,” this time accompanied by a proposed First Amended Complaint.
On December 3, 2021, Defendant filed a “Statement of NonOpposition to Plaintiff's Motion to Amend Complaint.” By Minute Order filed December 6, 2021, the Court granted Plaintiff's July 19, 2021 “Ex Parte Motion to Amend the Complaint” and ordered the First Amended Complaint filed. The First Amended Complaint was filed the same day.
The First Amended Complaint named as Defendants: (1) Kathleen Allison, the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”); (2) former CMC Warden Josie “Gastello”; (3) CMC Sergeant Sandoval, a sergeant in the “E-yard West Facility”; (4) CMC Correctional Officer Andres, an officer in the CMC “West Facility dorm 10"; and (5) Correctional Officers Urbina and Garcia, officers in the “West Facility dorm 8.” Plaintiff sued all Defendants in their individual capacities only.
On January 10, 2022, Defendant Gastelo, erroneously sued as “Gastello,” filed a “Partial Motion to Dismiss Plaintiff's First Amended Complaint.” On January 21, 2022, Plaintiff filed an opposition to the motion to dismiss. On March 3, 2022, the Court issued an “Order Dismissing First Amended Complaint With Leave to Amend.” On March 23, 2022, Plaintiff filed a Second Amended Complaint, naming the same Defendants identified in the First Amended Complaint, sued in their individual capacities only.
On June 7, 2022, Defendants Allison, Gastelo, Sandoval, Andres, Urbina and Garcia filed a motion to dismiss the Second Amended Complaint. On June 20, 2022, Plaintiff filed an opposition to the motion to dismiss. On July 18, 2022, the Court issued an “Order Dismissing Second Amended Complaint with Leave to Amend.”
On August 1, 2022, Plaintiff filed a Third Amended Complaint, again suing Defendants Allison, Gastelo, Sandoval, Andres, Urbina and Garcia in their individual capacities. On August 30, 2022, Defendants Allison, Gastelo, Sandoval, Andres, Urbina and Garcia filed a “Motion to Dismiss Plaintiff's Third Amended Complaint, etc.” (“Motion to Dismiss”). Defendants contend that: (1) the Third Amended Complaint assertedly fails to allege a cognizable Eighth Amendment claim; and (2) Defendants assertedly are entitled to qualified immunity. On September 12, 2022, Plaintiff filed a “Reply to Defendant's [sic] Motion to Dismiss, etc.,” constituting Plaintiff's Opposition to the Motion to Dismiss.
STANDARDS GOVERNING MOTIONS TO DISMISS
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court ordinarily must construe a pro se litigant's pleading liberally and hold a pro se plaintiff “to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
The Court must accept as true all non-conclusory factual allegations contained in the complaint and must construe the complaint in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). “Generally, a court may not consider material beyond the complaint in ruling on a Fed. R. Civ. P. 12(b)(6) motion.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider “only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted); Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.”) (citations omitted; emphasis in original). Accordingly, in ruling on the legal sufficiency of the Third Amended Complaint, the Court has not considered any new factual allegations contained in Plaintiff's Opposition. However, in determining whether to grant leave to amend, the Court may consider facts raised for the first time in an opposition. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
The Court may not dismiss a complaint without leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d at 1212 (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (citation and internal quotations omitted).
SUMMARY OF PLAINTIFF'S ALLEGATIONS
I. The First Amended Complaint
The Court did not screen the original Complaint, and no motion to dismiss was filed before Plaintiff filed a First Amended Complaint. Therefore, the Court will not summarize the allegations of the original Complaint, except to observe that therein: (1) Plaintiff sued only Defendant Gastelo; and (2) Plaintiff's allegations that Gastelo assertedly failed to protect Plaintiff from exposure to Covid generally resembled the allegations against Gastelo contained in Plaintiff's subsequent pleadings.
In the First Amended Complaint, Plaintiff alleged that Defendants violated the Eighth Amendment by failing to follow Covid-19 (“Covid”) guidelines issued by the CDC and state and federal governments, including by failing to enforce “the six feet social and living distance and daily program” and failing to reduce dorm capacity from 60 to 20 inmates (First Amended Complaint, ECF Dkt. No. 32 [“FAC”], p. 6). As an alleged result of these failures, Plaintiff assertedly tested positive for Covid on January 11, 2021, and reportedly was placed in quarantine on a ventilator for fourteen days (id.). /// /// /// /// /// ///
Because the pages of Plaintiff's pleadings and their attachments and exhibits are not sequentially numbered, the Court references the ECF pagination.
Plaintiff alleged, in pertinent part:
A fuller description of the allegations of the First Amended Complaint is contained in the “Order Dismissing First Amended Complaint With Leave to Amend.”
On March 4, 2020, California Governor Gavin Newsom declared a state of emergency due to the Covid pandemic (id.). On March 13, 2020, the federal government declared a national emergency (id.). On April 8, 2020, the CDCR Director of the Division of Adult Operations sent a memo to Associate Directors and Wardens concerning “best practices for cleaning and disinfecting your work areas” (FAC, p. 6; Ex. C, ECF Dkt. No. 32, p. 22).
On May 11, 2020, the CDCR Director of the Division of Adult Operations sent a memo to Associate Directors and Wardens setting forth “operational expectations” to be considered in the development of daily operational programs in order to mitigate Covid exposure (FAC, pp. 6-7; Ex. D, ECF Dkt. No. 32, p. 24). The memorandum stated, inter alia, that mitigation was achieved by housing inmates in either cells, or in some dorm settings in groups of eight separated by six feet of space, and by causing inmates and staff to don face coverings (FAC, Ex. D, pp. 24, 29-30).
The second and third pages of this three-page document were out of order, but appeared to be embedded in Exhibit E to the First Amended Complaint (see FAC, ECF Dkt. No. 32, pp. 2930).
On August 17, 2020, Plaintiff filed a grievance alleging that he was in imminent danger to his personal safety and health because Defendants had not implemented six-feet social distancing in the dorms (FAC, p. 7). Plaintiff's grievance was denied, and the appeal reviewers missed the deadline for review (id., p. 10).
It was not until November 19, 2020, that Defendant Allison sent a memo to CDCR staff requiring all staff to wear face masks (FAC, p. 7; see Ex. E, ECF Dkt. No. 32, pp. 26-28). From December 1, 2020 through December 29, 2020, twelve CMC staff members received verbal counseling for violating the face masking and/or distancing requirements, and one CMC staff member received a “letter of instruction” (FAC, Ex. F, ECF Dkt. No. 32, p. 35). Inmates did not wear masks until February, 2021 (FAC, p. 9).
Plaintiff is 65 years old and a “high medical risk” (id., p. 12). On or about January 4, 2021, while Plaintiff was walking from “chow,” Defendant Andres pulled off his face mask and sneezed, in violation of Covid protocol (id., pp. 7, 12-13). Plaintiff observed the vapors but was unable to avoid walking through them (id., pp. 7, 12). Approximately an hour later, Plaintiff began to feel sick and lay down on his bed (id., pp. 7-8, 12). During the following morning, Plaintiff felt dizzy and had a headache (id., p. 8). Plaintiff asked Andres for medical treatment (id.). A nurse took Plaintiff's vital signs and said Plaintiff was “normal” (id.). Plaintiff was not then tested for Covid (FAC, p. 7).
Plaintiff remained in bed and could not eat (id.). Inmates informed a correctional officer that something was wrong with Plaintiff (id., pp. 8, 10, 12). Plaintiff tested positive for Covid on January 11, 2021 (id., pp. 5, 8, 10). Plaintiff was placed in quarantine in dorm 8 for fourteen days on a ventilator (id., pp. 6, 10, 12, 13-14). Plaintiff lost his ability to taste and smell, and Plaintiff was still suffering effects from the infection as of June 5, 2021 (id., pp. 10, 12).
“The defendant” (apparently Defendant Gastelo) failed to prevent a Covid outbreak in the inmate population, thus exposing Plaintiff to a substantial risk of serious harm to his health and safety (id., p. 9). Reports by the CDCR Office of the Inspector General from August 2020 to November 2020 identified significant deficiencies in Covid screening and “PPE” (personal protective equipment) at CDCR facilities (id., p. 8).
As of March 24, 2021, there were “2470 confirm [sic] Covid 19 cases,” 23 inmate releases and 10 inmate deaths (id., p. 9). Two inmates with whom Plaintiff was housed in dorm 10 died after infected inmates were transferred to Eyard, causing the E-yard outbreak (id.). As of June 5, 2021, CMC's West Facility still was not in compliance with “the Covid 19 protocol in case of another outbreak” (id.).
Defendant Allison has the “propensity” not to follow federal court orders, thus demonstrating deliberate indifference and a wanton disregard “that over crowded prison population bring [sic] poor medical treatment and would have been better prepared for the Covid 19 pandemic to minimize the substantial risk of exposure” (id.). Defendant Gastelo, or her subordinates, Defendants Sandoval and Andres, failed to comply with the orders of Defendant Allison, the Centers for Disease Control and federal and state governments (id., p. 10).
The top portion of the page containing these allegations was partially obscured.
Defendant Gastelo ordered Defendant Sandoval, “working in concert with defendant Kathleen Allison via memorandum” “to implement six-feet distancing in the dorms on E-yard” (id., p. 11). “The defendant” also was ordered to have the dorms sanitized and the showers cleaned and sanitized six times a day (id.). Defendant Sandoval failed to oversee compliance with the Covid protocols as set forth in the memoranda, placing Plaintiff's health and safety at substantial risk (id., p. 8).
Defendant Andres also did not implement shower cleaning orders (id., p. 10). “The defendant” [apparently Sandoval] did not oversee or inspect the dorms himself to ensure that the risk to Plaintiff of Covid exposure was minimized (id.). Because of these failures, Plaintiff tested positive for Covid on January 11, 2021 (id.).
Defendants Urbina and Garcia failed to follow Covid protocols “via memorandums,” acting in concert with Defendants Allison, Gastelo and Sandoval (id., pp. 13-14).
In the prayer, Plaintiff sought declaratory relief and an order requiring Defendants to comply with six-feet distancing in the dorms and to reduce the dorm capacity from 60 to 20 (id., p. 15). Plaintiff also sought a “settlement” in the sum of $5 million and punitive damages in the sum of $7 million (trebled to $21 million), plus $4 trillion “for the coruption [sic]” (id.).
II. The Second Amended Complaint
The Second Amended Complaint contained allegations similar to the allegations in the First Amended Complaint, and added allegations concerning events purportedly occurring after the filing of the First Amended Complaint. Plaintiff attached to the Second Amended Complaint the same exhibits attached to the First Amended Complaint, except that the Second Amended Complaint did not include the second and third pages of the May 11, 2 02 0 memorandum, and added exhibits apparently related to Plaintiff's administrative grievance.
However, as indicated in the “Order Dismissing First Amended Complaint With Leave to Amend,” the May 11, 2020 memorandum appears on the CDCR's website.
The Second Amended Complaint was lengthy, repetitive and disorganized. Plaintiff alleged that some Defendants acted with deliberate indifference to Plaintiff's health and safety by allegedly: (1) configuring the dorm in eight-person cohorts; (2) failing to reduce the dorm population; (3) failing to implement cleaning protocols; (4) failing to provide inmates with sufficient cleaning supplies; and/or (5) failing to require inmates and/or staff to wear face masks. Plaintiff alleged that Plaintiff is 66 years old and classified as “high risk medical” (Second Amended Complaint, ECF Dkt. No. 52, p. 27). Plaintiff again alleged that he filed a grievance “on 8-17-2000" out of concern for Plaintiff's personal safety, and that a new warden, apparently Gastelo's successor, assertedly denied the grievance without a “person-to-person interview” (id., pp. 23, 25).
Presumably, Plaintiff meant 8-172020.
Plaintiff again alleged that porters supposedly only had enough cleaning supplies to clean twice a day, and that Defendants Sandoval and Urbina assertedly failed to supply the dorm with sufficient disinfectant (id., pp. 29, 38, 43, 49). Plaintiff again alleged that Defendant Andres supposedly sneezed on Plaintiff, and that thereafter Plaintiff assertedly became ill, tested positive on January 11, 2021 and was quarantined for 14 days on a ventilator (id., pp. 15, 23, 39, 45). Plaintiff alleged that Defendant Garcia assertedly violated Plaintiff's Eighth Amendment rights, allegedly by failing to disinfect the shower, restroom, dayroom and office on his third watch shift (id., pp. 53, 55).
In the Second Amended Complaint, Plaintiff referred to Defendant Garcia as “Graza.”
In the Second Amended Complaint, Plaintiff sought an order requiring Defendants “to comply with all preventative measure[s] to reduce the exposure of Covid 19 at CMC” and to “reduce the inmate population so that the plaintiff[']s human basic need[s] are restored” (id., p. 57). Plaintiff sought his own release in the event Defendants did not comply with this order (id.). Plaintiff also sought damages in the sum of $10 million for “pain and suffering” and $4 million “for the corruption” (id.).
III. The Third Amended Complaint
The Third Amended Complaint contains allegations very similar to the allegations contained in the predecessor pleadings. Plaintiff organizes the Third Amended Complaint by Defendant. Plaintiff alleges:
One notable change concerns Plaintiff's allegations concerning the dorm configuration. In the portion of the form complaint calling for an explanation of how Defendant “Garza” was acting under color of law for purposes of section 1983, Plaintiff asserts that Garza exposed Plaintiff to a substantial risk of harm from Covid by allegedly “failing to disinfect the dorm and implementing 6 feet social distancing” (TAC, p. 5). However, the charging allegations against Garza in the Third Amended Complaint do not mention any assertedly deficient social distancing.
Defendant Allison
Defendant Allison failed to provide a mask for Plaintiff during the Covid outbreak at CMC (Third Amended Complaint [“TAC”], ECF Dkt. No. 66, p. 4). On November 19, 2020, Defendant Allison issued a memorandum to “All Staff”
requiring CDCR employees, contractors and visitors to wear facial coverings (TAC, ECF Dkt. No. 66, p. 6; Ex., pp. 2223). Defendant did not authorize the inmate population to wear facial coverings, thereby placing Plaintiff at a substantial risk of harm from Covid (TAC, ECF Dkt. No, 66, pp. 6-7). Plaintiff did not receive a mask until he tested positive for Covid on February 11, 2021 (id., p. 7). Plaintiff was placed in quarantine for 14 days on a ventilator (id.). No other reasonable steps were taken to abate the spread of Covid (id.).
Defendant Gastelo
Defendant Gastelo deprived Plaintiff of the minimal civilized measure of life's necessities of health and reasonable safety (id., pp. 4, 7). Plaintiff was exposed involuntarily to Covid, tested positive on February 11, 2021, and was placed on a ventilator for 14 days in quarantine (id., p. 7). “The defendant [sic] conduct was sufficiently harmful to the Plaintiff's health and safety and acted [sic] with a sufficiently culpable state of mind” (id.). Defendant designed and spearheaded a “special grievance unit” for Covid issues (id., pp. 7-8). Plaintiff filed a grievance “with the specified Covid 19 review unit seeking preventative relief from the Covid 19 on August 17,
2020. . . .” (TAC, ECF Dkt. No. 66, pp. 7-8; Ex., ECF Dkt. No. 20). Acting Warden Samuel denied the grievance on August 26, 2020, without providing Plaintiff an interview, “because the Plaintiff was 65 years of age and listed as a high risk medical inmate at CMC” (TAC, ECF Dkt. No. 66, p. 8). “The defendant” knew of the substantial risk to Plaintiff's health and safety prior to the date Plaintiff tested positive for Covid on February 11, 2021, “because it was well document [sic], obvious longstanding throughout the world and expressly noted by the defendant is why she install an [sic] special grievance processing unit” (id.).
As of March 24, 2021, there were 2470 confirmed cases and 10 deaths (id.). Defendant “retired to escape responsibility” (id.). Defendant's response to the grievance showed “wanton disregard to the Plaintiff's health and safety [and] could constitute deliberate indifference” (id.).
Defendant Andres
Defendant Andres exposed Plaintiff to Covid by lifting his mask and sneezing vapor into the air while Plaintiff was walking through the gate after chow on January 4, 2021 (id., pp. 5, 9). Plaintiff was unable to avoid the vapor (id.). After an hour or two, Plaintiff felt sick and had to lie down (id.). Moments later, Plaintiff informed Andres of Plaintiff's symptoms and Andres called medical staff (id.).
Medical staff would not see Plaintiff, so Plaintiff lay back down on his bed (id.). Plaintiff could not get out of bed to use the restroom or go to the chow hall because he felt dizzy and had a severe headache and trouble breathing (id.). Plaintiff remained in bed approximately a week (id.).
After inmates informed a correctional officer that something was wrong, the officer called medical staff (id.). Staff treated Plaintiff, and Plaintiff tested positive for Covid on January 11, 2021 (id.). Plaintiff was placed in quarantine for 14 days on a ventilator (id.). Defendant Andres exposed Plaintiff to Covid, “creating an inhumane condition that resulted [in] the infliction of serious harm from the Covid 19" (id.). Defendant Andres knew of the risk to Plaintiff because Defendant Allison had ordered staff to wear masks (id., p. 10). Andres showed a wanton disregard for, and deliberate indifference to, Plaintiff's health and safety (id., pp. 9-10).
Plaintiff filed a grievance on August 17, 2020 “for preventative relief that was denied on August 26, 2020 without an interview to consider placing in more secure housing, being that Plaintiff was 65 years old and was listed as high risk medical inmate at CMC with an liver [sic] disease” (id.). Plaintiff tested positive for Covid again on February 3, 2022 (id.).
Defendant Sandoval
Defendant Sandoval failed to prevent the spread of Covid by failing to supply disinfectant to clean the dayroom, shower and other places used by inmates (id., pp. 4, 10). The CDCR Director's April 8, 2020 memorandum required staff to ensure that porters were thoroughly cleaning communal areas a minimum of two times per shift, and more often if needed (id., pp. 10-11). Defendant Sandoval's actions showed a wanton disregard for, and deliberate indifference to, the necessity of reducing the spread of Covid (id., p. 11).
Defendant Garza [sic]
Plaintiff was transferred from dorm 10 to dorm 8 following his completion of quarantine (id., pp. 11-12). Plaintiff found dorm 8 to be unsanitized, and the shower and restroom had a foul order (id., p. 12). Plaintiff asked Defendant Garza why the dorm was not clean, and Garza responded that the second watch officer, Urbino, was responsible for cleaning those areas two to three times a day (id.). Plaintiff told Garza that Urbino was cleaning the dorm only once per shift (id.). Plaintiff presented Garza with the April 8, 2020 memorandum (id., pp. 12-13).
Garza told Plaintiff that, if Plaintiff did not like the way Garza ran the dorm, Plaintiff could return to dorm
10 (id., p. 13). Plaintiff expressed a desire to remain in dorm 8, because two inmates in dorm 10 had died and the living conditions there were inhumane (id.).
A few days later, Defendant Urbino told Plaintiff that Garza did not want Plaintiff in Garza's dorm any longer “and that he was not going against his partner's order” (id.). Against Plaintiff's wishes, Plaintiff was transferred back to dorm 10 (id., pp. 13-14). On February 3, 2022, Plaintiff tested positive for Covid for the second time (id., p. 14).
Defendant Garza knew of the risk to Plaintiff because the risk was “well documented and longstanding” (id.). Defendant subjected Plaintiff to cruel and unusual punishment when Plaintiff tested positive for Covid on February 3, 2022 (id.). This time, Plaintiff was quarantined for ten days (id.).
Defendant Urbino
Defendant Urbino exposed Plaintiff to Covid by failing to sanitize dorm 8 (id., pp. 5, 11). Urbino failed to provide the second watch porters with disinfectant (id., p. 11). When Plaintiff complained, Plaintiff transferred back to dorm 10 where two inmates had died and where Plaintiff previously had tested positive for Covid
(id., pp. 11-12). “The omission not to provide disinfect [sic] could constitute deliberate indifference” (id., p. 12).
Some of Plaintiff's exhibits do not bear identifying letters or numbers. The Court identifies exhibits by their ECF pagination.
Plaintiff does not attempt to allege any First Amendment claim against any Defendant.
Plaintiff attaches several exhibits to the Third Amended Complaint: (1) Plaintiff's August 17, 2020 grievance; (2) the August 26, 2020 “Claimant Grievance Claims Decision Response” disapproving the grievance; (3) the November 19, 2020 memorandum concerning facial coverings issued by Defendant Allison and the CDCR receiver; (4) a page titled “CMC Prevention and Control Efforts; Takeaways”; and (5) the April 8, 2020 memorandum containing information regarding cleaning (id., pp. 16-28).
In the Third Amended Complaint, Plaintiff seeks purported “declaratory relief” which “would deduct payment of the defendants['] paychecks” (id., p. 15). Plaintiff seeks “a special regulatory” imposed on Defendants and other state employees “who practice corruption” (id.). Plaintiff also seeks “restitution” and damages in the sum of one million dollars from each Defendant, punitive damages, treble damages, and four trillion dollars “connected to the coruption [sic]” (id.).
DISCUSSION
I. The Third Amended Complaint Again Fails to State an Eighth Amendment Claim Against Any Defendant.
Prison conditions violate the Eighth Amendment if the conditions are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Prison officials may not deprive prisoners of the “minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations and citations omitted). The Eighth Amendment “requires that inmates be furnished with the basic human needs, one of which is reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citation and internal quotations omitted).
As the Court previously advised Plaintiff in the “Order Dismissing First Amended Complaint With Leave to Amend” and “Order Dismissing Second Amended Complaint With Leave to Amend,” to state an Eighth Amendment claim, a plaintiff must allege that prison officials' conduct was sufficiently harmful to establish a constitutional violation (the “objective” test), and that the officials acted with a sufficiently culpable state of mind (the “subjective” test). See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert. denied, 532 U.S. 1065 (2001). The objective test looks to whether the deprivation was sufficiently serious, as determined by the conditions alleged. See Farmer v. Brennan, 511 U.S. at 834. The plaintiff must allege conditions so serious as to be outside the bounds of those which “today's society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36.
Under the subjective test, “deliberate indifference” is the minimum showing of culpability necessary to state a claim. See Farmer v. Brennan, 511 U.S. at 834; Estelle v. Gamble, 429 U.S. 97, 104 (1976). To be liable for “deliberate indifference,” a prison official must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. at 837. “[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment.” Id. at 838.
Prison officials have a constitutional obligation to protect inmates from serious communicable diseases. See Helling v. McKinney, 509 U.S. at 33; Fuller v. Houston, 2021 WL 6496742, at *3 (C.D. Cal. Nov. 19, 2021), adopted, 2022 WL 225671 (C.D. Cal. Jan. 25, 2022). Covid presents a serious risk to prison inmates. See Martinez v. Sherman, 2022 WL 126054, at *6 (E.D. Cal. Jan. 13, 2022), adopted, 2022 WL 4072863 (E.D. Cal. Sep. 02, 2022) (“It is clear that COVID-19 poses a substantial risk of serious harm.”) (citations omitted); Fuller v. Houston, 2021 WL 6496742, at *4 (“There is absolutely no question that COVID-19 is a serious communicable disease.”) (citations omitted); Plata v. Newsom, 445 F.Supp.3d 557, 559 (N.D. Cal. 2020) (“The COVID-19 pandemic is ‘unprecedented,' and no one questions that it poses a substantial risk of serious harm to [prisoners].”) (citations omitted).
Plaintiff's general allegations that various Defendants purportedly exhibited “wanton disregard” or “deliberate indifference” to a risk of harm to Plaintiff, including the general allegations against Defendant Gastelo, again are insufficient. As the Court previously advised Plaintiff in the “Order Dismissing First Amended Complaint With Leave to Amend” and “Order Dismissing Second Amended Complaint With Leave to Amend,” Plaintiff may not sue any supervisory Defendant pursuant to 42 U.S.C. section 1983 on a theory of respondent superior. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). A supervisor “is only liable for his or her own misconduct,” and is not “accountable for the misdeeds of [his or her] agents.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009). Mere knowledge of a subordinate's alleged misconduct is insufficient. Id.
A supervisor may be held liable in his or her individual capacity “for [his or her] own culpable action or inaction in the training, supervision or control of [his or her] subordinates; for his acquiescence in the constitutional deprivation . . .; or for conduct that showed a reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (citation and quotations omitted; original brackets and ellipses). As the Court previously advised Plaintiff, to state a cognizable section 1983 claim, “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). Plaintiff's conclusory allegations that Defendant Allison or Defendant Gastelo purportedly failed to prevent or mitigate the outbreak of Covid at CMC, or that any Defendant purportedly is responsible for the alleged actions or inactions of subordinates, again are insufficient. See Ashcroft v. Iqbal, 556 U.S. at 678 (plaintiff must allege more than an “unadorned, the-defendant-unlawfully-harmed-me accusation”; a pleading that “offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”); see also Peyton v. Cates, 2022 WL 1430752, at *6 (E.D. Cal. May 5, 2022), adopted, 2022 WL 2307789 (E.D. Cal. June 27, 2022) (“Plaintiff's generalized allegations that Defendant, as the head of the prison, should have better responded to the COVID pandemic are insufficient to show that Defendant knew of and disregarded an excessive risk to Plaintiff's health”) (citations omitted); Sanford v. Eaton, 2021 WL 1172911, at *6 (E.D. Cal. Mar. 29, 2021) (“in order to state a cognizable Eighth Amendment claim against the warden, associate wardens and the other defendants named, Plaintiff must provide more than generalized allegations that the warden, associate wardens and other defendants have not done enough regarding overcrowding to control the spread” of COVID-19).
Additionally, as the Court previously advised Plaintiff, to the extent Plaintiff seeks to hold any Defendant liable based on Plaintiff's prison grievance, Plaintiff's pleading again is insufficient. Plaintiff again alleges that it was a different warden (not named as a Defendant) who purportedly denied Plaintiff's grievance. Plaintiff again fails to allege any facts showing that any Defendant knew of his grievance and, based on such alleged knowledge, somehow acted with deliberate indifference to Plaintiff's safety.
With respect to Plaintiff's allegations regarding facial coverings, any alleged failure to impose or enforce mask requirements does not suffice to allege deliberate indifference, particularly in light of Plaintiff's allegations showing prison officials' efforts to mitigate the spread of Covid in the state's prisons. See Plata v. Newsom, 2022 WL 1210694, at *1 (9th Cir. Apr. 25, 2022) (CDCR did not act with deliberate indifference by requiring only workers in healthcare settings, rather than all prison workers, to receive Covid vaccinations, where CDCR “took significant action to address the health risks posed by COVID-19"). Furthermore, Plaintiff has not alleged any facts showing that the asserted failure to impose or enforce a masking requirement caused harm to Plaintiff. See Marti v. Manning, 2022 WL 4348289, at *6 (E.D. Cal. Sept. 19, 2022) (allegation that prison official failed to wear a mask on a number of occasions while inside plaintiff's dorm area insufficient, where plaintiff alleged no facts showing substantial risk of harm to plaintiff).
Plaintiff again appears to suggest that a sneeze by Defendant Andres produced Covid symptoms in Plaintiff which manifested an hour or two after the sneeze. Putting aside the glaring causation problem attending this suggestion, Plaintiff again fails to allege any facts from which it plausibly might be inferred that, at the time Defendant Andrews sneezed, he had the requisite subjective state of mind for Eighth Amendment liability. See Farmer v. Brennan, 511 U.S. at 834, 837-38.
Plaintiff's allegations that various Defendants supposedly failed to adhere to cleaning protocols, or failed to provide sufficient cleaning supplies to Plaintiff and/or other inmates, again are insufficient. Plaintiff does not allege facts plausibly showing that any Defendant deliberately failed to adhere to cleaning protocols or to provide sufficient cleaning supplies with knowledge that such purported inactions supposedly would place Plaintiff at a substantial risk of harm. See McKissick v. Gastelo, 2021 WL 2895679, *5 (C.D. Cal. 2021) (“[T]o state a cognizable Eighth Amendment claim, Plaintiff must provide more than generalized allegations that Defendants have not . . . provided sufficient cleaning supplies, in order to control the spread of COVID-19.”); accord, Smith v. Santoro, 2022 WL 3908131, at *3 (E.D. Cal. Aug. 30, 2022), adopted, 2022 WL 4484301 (E.D. Cal. Sept. 27, 2022).
In sum, the Third Amended Complaint again fails to allege facts showing the unreasonableness of the measures allegedly employed to attempt to mitigate the effects of a fast-moving and fast-evolving pandemic in an institutional setting, particularly given the contemporary uncertainty regarding not only the nature of the virus but also the efficacy of various containment or mitigation strategies. See Hope v. Warden York Cty. Prison, 972 F.3d 310, 330 (3d Cir. 2020) (“Although the District Court criticized the Government for the lack of ‘effective containment measures,' and for not doing ‘nearly enough' to combat COVID-19, those critiques are not tantamount to establishing the Government's deliberate indifference.”) (citation omitted); Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (Bureau of Prisons' early efforts to curtail the spread of COVID-19 demonstrated “the opposite of a disregard of a serious health risk”); Dawson v. Asher, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (“No one can entirely guarantee safety in the midst of a global pandemic.”); cf. Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th 613, 637 (9th Cir. 2021) (reversing grant of preliminary injunction sought by immigration detainees challenging agency's nationwide Covid response measures, where, inter alia, detainees had not shown a probability of success on claim of “system-wide” deliberate indifference; “[t]here is considerable distance between imperfect implementation of a policy, or even knowledge of the imperfect implementation of a policy, and deliberate indifference in the constitutional sense”); compare Roman v. Wolf, 977 F.3d 935, 942-44 (9th Cir. 2020) (immigration detainees stated claim under Fifth Amendment where they alleged responsible officials failed to implement necessary Covid protective measures, including adequate quarantine of transferred inmates, social distancing, and the provision of sufficient face masks, hand sanitizer, cleaning supplies and soap; agreeing that district court properly granted preliminary injunction, but vacating and remanding for consideration of issues in light of changed circumstances at the facility).
II. The Court Should Not Grant Further Leave to Amend.
In the “Order Dismissing Second Amended Complaint With Leave to Amend,” the Court cautioned Plaintiff that failure to file a Third Amended Complaint which stated a cognizable claim for relief could result in the dismissal of this action. Despite this caution, the Third Amended Complaint (which is very similar to Plaintiff's previous complaints) again fails to state a cognizable claim. Although the Court previously advised Plaintiff of the elements of a constitutional claim of deliberate indifference, and although the Court has afforded Plaintiff opportunities to amend to attempt to state a cognizable claim for relief, Plaintiff has proven unwilling or unable to do so. In these circumstances, another granting of leave to amend would be an idle act. See Simon v. Value Behav. Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims); Plumeau v. Sch. Dist. #40, Cty of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile). Accordingly, the Court should dismiss the Third Amended Complaint and the action without leave to amend and with prejudice.
In light of this recommended disposition, the Court need not, and does not, reach the issue of qualified immunity.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's request for appointment of counsel; and (3) dismissing the Third Amended Complaint and the action without leave to amend and with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.