Opinion
3:21-cv-01767-RBM-DTF
07-25-2024
BENJAMIN FLOURNEY, aka BENJAMIN FLOURNOY CDCR #V-17007, Plaintiff, v. M. POLLARD; Warden; KIES, Correctional Officer, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. 57]
Hon. Ruth Bermudez Montenegro United States District Judge.
Plaintiff Benjamin Flourney (“Plaintiff”), an inmate housed at the Richard J. Donovan Correctional Facility (“RJD”), filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging that Defendants were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment by failing to prevent him from contracting COVID-19. See generally Doc. 7 (“Compl.”). Plaintiff later filed a First Amended Complaint (“FAC”), see Doc. 15, which is the operative pleading.
Before the Court is Defendants' Motion for Summary Judgment. (See Doc. 57). Plaintiff filed an Opposition to Defendants' Motion, (Doc. 63), and Defendants filed a Reply, (Doc. 67).
Although this motion was referred to United States Magistrate Judge D. Thoams Ferraro pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument is necessary for the disposition of this matter. See S.D. Cal. CivLR 72.1(d).
For the reasons discussed below, the Court GRANTS Defendants' Motion for Summary Judgment (Doc. 57) and DIRECTS the Clerk of the Court to enter judgment in favor of Defendants and to close the case.
I. PROCEDURAL BACKGROUND
On November 12, 2021, Plaintiff filed a Complaint under 42 U.S.C. § 1983 alleging that a group of unidentified RJD officials violated his Eighth Amendment rights by failing to prevent him from contracting COVID-19. (See generally Doc. 7.) On January 27, 2022, the Court screened his complaint pursuant to 28 U.S.C § 1915A and dismissed his Complaint sua sponte for failing to state a claim upon which § 1983 relief could be granted. (See Doc. 11.) Plaintiff was given leave to file an amended complaint. (See id.)
This matter was initially assigned to United States District Judge Cathy Ann Bencivengo but was later transferred to this Court on April 7, 2022. (See Doc. 14.)
On June 30, 2022, Plaintiff filed his FAC. (See Doc. 15.) In his FAC, Plaintiff named Former California Department of Corrections and Rehabilitation (“CDCR”) Secretary Diaz, Former Warden Pollard, and Correctional Officers Kilough, Miranda, Kies and Mosely as Defendants. (See id.) The Court, once again, screened Plaintiff's FAC, dismissed the claims against Diaz, Kilough, Miranda and Mosely, and directed the United States Marshal Service to effect service of the FAC on the remaining Defendants, Warden Pollard and Correctional Officer Kies. (See Doc. 17.)
Defendants Pollard and Kies filed their Answer to Plaintiff's FAC on January 26, 2023. (See Doc. 23.) They moved for summary judgment on March 18, 2024. (See Doc. 57.) On March 19, 2024, the Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (See Doc. 58.) Plaintiff was informed that he must file an Opposition or a “Notice of Non-Opposition” by May 3, 2024. (Id.) Plaintiff filed his Opposition on June 13, 2024 to which Defendants filed their Reply. (Docs. 63, 66.)
II. FACTUAL BACKGROUND
A. Plaintiff's Factual Allegations
These factual allegations are taken from Plaintiff's FAC, which is not verified.
In the sole remaining cause of action in the FAC, Plaintiff claims the Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment when they failed to protect him from contracting COVID-19. (See Doc. 15 at 5.) He alleges that, beginning in October 2020, half of the prison officials at RJD were not enforcing mandatory medical guidelines by wearing N95 masks or forcing inmates to wear masks, socially distancing, and cleaning doorknobs, telephones and sink handles. (See id.) When the first positive COVID-19 test results began to come out in the beginning of December 2020, prison staff refused to send inmates who tested positive out of building 13. (See id.) Plaintiff informed several officers about the situation but they did nothing. (See id.)
By December 12, 2020, prison staff began moving infected inmates to another yard but by then the virus spread to some inmates in 13 block where Plaintiff was housed. (See id.) For nearly the entire month of December 2020, prison staff allowed infected inmates to comingle with uninfected inmates without requiring the mandated cleaning protocol to be enforced, resulting in approximately 1,000 inmates on C-yard becoming infected with the virus, including Plaintiff. (See id. at 5-6.)
Plaintiff states that: “Besides holding the officers who work on morning and evening throughout [December 1st through 25th] at fault, I also hold the Sergeant, Lieutenant, Captain, Warden at fault because I talk to the Sergeant[] in charge of 13 building throughout December. His [sic] response was that he couldn't do nothing to fix the problem.” (Id. at 6.) Plaintiff also states that: “Based on the above I hold all officers who work in the Month of December liable for me contracting the Covid-19 virus on 12-11-20, see (Exhibit C), all officers who work the morning and evening shifts (Doe #1 to Doe 15) and 15 officers [whose names] will be disclose[d] once [I'm] in discovery proceedings.” (Id. at 7-8.) Plaintiff states that “officers, sergeants, lieutenants, captain, [and] warden all knew that they had to insulate inmates who show symptoms of Covid-19, tested positive, or have close contact with known or suspected Covid-19 cases,” and that they all had personal knowledge that inmates on his yard tested positive on December 1, 2020. (Id. at 8.) He states that: “In addition, I want to hold liable the warden or captain that could have been the ones who gave the order for no officer to follow the guideline rules that would have prevented the spread.” (Id. at 9.) From December 1 to December 28, 2020, Correctional Officer Kies was assigned to Plaintiff's building. (See id. at 12.)
Plaintiff seeks injunctive relief, $100,000 in punitive damages from each Defendant, and $300,000 in damages for “pain [and] suffering; emotional distress.” (Id. at 18.)
B. Defendants' Factual Claims
In December of 2020, Plaintiff was housed at RJD in Yard C, Building 13. (See Defs.' Sep. Stmt. of Undisputed Facts (“SSUF”) Doc. 57-5 at No. 1; Decl. of Norma Morales (“Morales Decl.”), Doc. 57-4 at 5, Ex. 2, Plaintiff's CDCR Bed Assignments.) During all times giving rise to the claim in this action, Defendant Pollard was the RJD Warden. (See SSUF at No. 2; Decl. of M. Pollard (“Pollard Decl.”), Doc. 57-3 at ¶ 1.) Defendant Kies was a correctional officer at RJD and assigned to Building 13 at the time Plaintiff tested positive for COVID-19. (See SSUF at No. 3; Decl. of C. Kies (“Kies Decl.”) Doc. 57-1 at ¶ 3.)
In response to the COVID-19 pandemic, which began in early 2020, Pollard “received several memoranda, directives, and procedures, which were updated as the year progressed.” (Pollard Decl. at ¶ 3.) These procedures and protocols included directives requiring staff and inmates to wear masks, “refrain from handshakes, and maintain a safe distance from each other.” (Id.) In addition, “[a]t each housing unit, inmates were provided with hand sanitizer and disinfectants so that they could clean their living quarters.” (Id.) Pollard “directed staff to follow, implement, and adhere to these directives.” (Id.)
In July of 2020, Pollard, and other administrators, “revised” the RJD “COVID-19 Mitigation Strategy, which was disseminated and implemented by staff.” (Id. at ¶ 4; Morales Decl., Ex. 2, Doc. 57-4 at 56-76; California Correctional Health Care Services (“CCHCS”) Memo. dated July 8, 2020, “Richard J. Donovan Correctional Facility COVID-19 Mitigation Strategy - Revised 07/08/20.”) Dr. Paul Adler opines that this policy, individualized to RJD, “covered similar topics recommended by the staff at CDCR” based on the U.S. Centers for Disease Control and Prevention (“CDC”), World Health Organization (“WHO”), Joint Commission on Accreditation of Health Care Organizations (“JCAHO”), and University of California San Francisco's (“UCSF”) recommendations. (Decl. of Dr. Paul Adler in Supp. of Defs. Mtn. Summ. J. (“Adler Decl.”), Ex. 1, Doc. 572 at 9.)
On August 6, 2020, Pollard and other RJD administrators “issued a Proof of Practice Additional Staff Screening memorandum, which was disseminated and implemented by staff.” (Pollard Decl. at ¶ 5; Morales Decl., Ex. 2, Doc. 57-4 at 77-78; CDCR Memorandum dated Aug. 6, 2020, “Proof of Practice - Additional Staff Screening.”)
On October 13, 2020, Pollard and other RJD administrators “continued to implement the Novel Coronavirus Disease 2019 entrance screening procedures.” (Pollard Decl. at ¶ 6; Morales Decl., Ex. 2, Doc. 57-4 at 78-84; CDCR Memorandum dated Oct. 13, 2020, “Novel Coronavirus Disease 2019 Institution Entrance Screening Procedures Revised October 2020.”) Pollard “issued monthly certifications after personally observing the entrance screening process and conducting random checks of staff.” (Pollard Decl. at ¶ 7; Morales Decl., Ex. 2 at 85, “CDCR Memorandum “Proof of Practice- Screening Compliance and Monitoring” dated Dec. 2, 2020.)
Pollard attests that “[s]taff were required to inspect areas for inmate masking, social distancing, cleaning schedule, poster placement for best practices, availability of hand sanitizer and disinfectants.” (Pollard Decl. at ¶ 8.) Checklists for the various requirements to be done by staff were created, requiring staff to fill them out each day and approved by the “respective captain at RJD.” (Id.) Pollard has submitted these daily checklists for the months of November 2020, December 2020, and January 2021 for Building 13. (Id.; Morales Decl., Ex. 2 at 7-51, “Housing Unit Cleaning Log.”) Dr. Adler declares that the checklist created by Pollard including “daily checking the following areas: the Dining hall, the Housing Units, the Gym and the Day room.” (Adler Decl., Ex. 1 at 9.) In each of these areas, staff “would check for inmate masking, social distancing, cleaning schedule, poster placement, hand sanitizer and disinfectants.” (Id.) Dr. Adler in reviewing these checklists “found that not only were the items checked, but the lists also contained detailed specific comments” including for example, “inmates weren't wearing a mask” and sometimes “more hand sanitizer was needed.” (Id.)
However, “[b]eyond developing policies and directives to minimize or prevent the spread of COVID-19, designating buildings for isolation, disciplining staff for failing to adhere to the COVID-19 directives, [Pollard] was not directly involved in handing out the food, cleaning common areas, or cleaning the housing quarters.” (Pollard Decl. at ¶ 9.)
In December of 2020, Defendant Kies, a Correctional Officer, was “assigned to the housing quarters at Building 13” at RJD. (Decl. of C. Kies (“Kies Decl.,) at ¶ 3.) His shift was from 2:00 p.m. to 10:00 p.m. (See id.) Plaintiff was “housed alone in a cell with soliddoor and solid-walls at Building 13, which has a rectangle-shaped opening with a slide door that is approximately 9” wide and 4” tall.” (Id. at ¶ 4.) At this time, Building 13 “was not designated as an isolation and/or quarantine unit prior to, and including, December 2020.” (Id.)
In December of 2020, RJD employees were required to test for COVID-19 weekly and they would not be “permitted to enter the institution without being screened.” (Id. at ¶ 5.) During this period, Kies “did not report to work with any flu-like or COVID-19 symptoms” and “never tested positive for COVID-19 in December 2020.” (Id. ¶ 6.) Kies was “not reprimanded nor sent home for failing to adhere to the COVID-19 protocols” at RJD. (Id.) In addition, Kies “wore a mask whenever [he] was on site, whether at [his] assigned post or if responding to a code/emergency.” (Id.) Kies was also aware that Plaintiff often filed grievances and “mindful of security cameras,” he “en[s]ured [he] had a mask on at all times, disinfecting gear, us[ed] hand sanitizer, us[ed] gloves, among other policies,” to avoid disciplinary action. (Id.)
In addition, inmates, including Plaintiff, were “provided cleaning supplies to clean and disinfect their own cells.” (Id. at ¶ 7.) There were additional cleaning supplies “available inside the Building 13 living quarters.” (Id.) Showers were cleaned on a daily basis, which included the use of a “disinfectant, cleaner, and deodorizer.” (Id.) Inmates were “also provided masks and hand sanitizer for self-use.” (Id.) They were “reminded to maintain their distance from other through frequent announcements over the loudspeakers” and “[m]arkers on the floor were placed at six-foot intervals to remind inmates to maintain their distance from others.” (Id.) “Commonly used items and places, such as tables, showers, and phones, were cleaned more frequently and hand sanitizer stations were placed throughout Building 13” and RJD. (Id.)
In Building 13, inmates “were released for showers, yard time, phone access, and/or to retrieve medications in small groups.” (Id. at ¶ 8.) In addition, the “number of inmates allowed in dayrooms at any one time was reduced,” and inmates received their meals in their cells. (Id.) Kies or his partner, “would escort and monitor the porters to ensure the food trays were covered when they came from the kitchen and then uncovered as they were handed to the inmate.” (Id.) The “porters were wearing a hair net, gloves, and a mask at all times that the meals were being handed out through the sliding door.” (Id.) In addition, “[p]orters were trained on how to safely deal with the COVID-19 pandemic.” (Id.)
Kies “observed [Plaintiff] leave his cell and Building 14 to make phone calls, obtain medications, go to the shower, or go to the yard at least once a day.” (Id. at ¶ 10.) Kies observed that Plaintiff always wore a mask and would “frequently stop[] at the door of other inmates' cells to visit.” (Id.) Kies was never told by Plaintiff, nor did he learn in any other manner, that “he had any special vulnerabilities to COVID-19.” (Id.)
III. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material when it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The initial burden of establishing the absence of any genuine issues of material fact falls on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the non-moving party's case; or (2) by demonstrating that the non-moving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See id. at 322-23. In such cases, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.
Once the moving party has satisfied its initial burden, the non-moving party cannot rest on the mere allegations or denials of its pleading. The non-moving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324. The non-moving party may meet this requirement by presenting evidence from which a reasonable jury could find in its favor, viewing the record as a whole, in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221-22 (9th Cir. 1995). In determining whether there are any genuine issues of material fact, the court must “view[] the evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001) (citation omitted).
IV. DISCUSSION
A. Evidentiary Objections
As an initial matter, the Court overrules the County's objections to Plaintiff's evidence submitted by him in support of his Opposition to the extent that they are relevant to his claims. Given Plaintiff's pro se status, it would be an abuse of discretion to refuse to consider the remaining evidence offered by him at the summary judgment stage. See Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004) (reversing and remanding with instructions to consider evidence offered by the pro se plaintiff in his objections to the findings and recommendations.).
B. Evidence in Support and in Oppositionto Summary Judgment
In support of their Motion, Defendants submit the declaration of Dr. Paul M. Adler, DO, who currently is the Chief Executive Officer and Chief Medical Officer of Correctional Health Management. (See Adler Decl. at ¶ 1.) Attached to Dr. Adler's declaration is a “copy of [his] findings and opinions” submitted “in support of Defendants' Motion for Summary Judgment.” (Id., Doc. 57-2, Ex. 1.) Dr. Adler's report provides that his “conclusion will discuss Mr. Flourney, his complaint and medical problems as well as his lack of long-term symptoms.” (Id. at 4.)
Plaintiff's FAC is not signed under penalty of perjury and thus, it cannot constitute a sworn declaration in opposition to the Defendants' Motion for Summary Judgment. See Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (“Evidence may be offered to support or dispute a fact on summary judgment only if it could be presented in an admissible form at trial.”) (internal quote marks omitted).
However, Plaintiff has submitted an Opposition to Defendants' Motion that is signed under penalty of perjury. (See Doc. 63.)
C. Defendants' Motion for Summary Judgment
Defendants argue that Plaintiff has not raised a genuine issue of factual dispute as to his Eighth Amendment claim, and even if there is a triable issue with regard to his Eighth Amendment claim, Defendants are entitled to qualified immunity. (See generally Defs. Memo of P&As in Supp. of Mtn. Summ J. (“Defs.' P&As”) Doc. 57.) In addition, Defendants argue that there is no evidence that they acted with “evil motive or intent or recklessness and callous indifference to federal protected rights” which is necessary to award punitive damages. (Id. at 18.)
1. Causal connection
Defendants seek summary judgment on the ground that Plaintiff's claims are based solely on speculation and that he cannot demonstrate that the Defendants “proximately caused him to contract COVID-19,” a necessary element for an Eighth Amendment claim. (Defs.' P&As at 12-13.)
“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). A person deprives another of a constitutional right under § 1983, where that person “‘does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). The “requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Id. at 743-44.
Here, Pollard points to undisputed evidence that shows he “enacted and enforced various measures at RJD to prevent the spread of COVID-19, but he did not physically interact with Plaintiff.” (Defs. P&As at 13 (citing Pollard Decl. at ¶ 9).) Dr. Adler opines that “[a]ll the effective polices of CDCR were implemented at R.J. Donovan, but Covid, even with their effective polices, could still enter prison regardless of the effective policies of Warden Pollard.” (Adler Decl. at 12.) In addition, Dr. Adler opines that Pollard's policies “were effective and were 99+% followed, because of his actions to enforce the policies.” (Id.) It is his “opinion that the policies and procedures developed by CDCR, CCHCS and Warden Pollard in response to the COVID pandemic during the time period of March 2020 through January 2021 were effective.” (Id. at 14.) Plaintiff offers no admissible evidence to dispute this testimony nor does he produce any evidence that Pollard ever had any direct interaction with Plaintiff.
Instead, Plaintiff argues that Defendant Pollard “takes pride in creating, fabricating lies to present to the Court.” (Pl.'s Opp'n at 16.) However, Plaintiff offers no evidence that the COVID-19 protocols developed by CDCR officials and implemented by Pollard were inadequate or caused him to contract COVID-19. He merely alleges, without evidentiary support, that “Defendants did not follow COVID-19 guidelines” and they “knowingly allowed COVID-19 employees, correctional custodial staff, nurses, [and] free staff to come to work and jeopardize safety of the prisoners.” (Id. at 9.) See Farmer v. Brennan, 511 U.S. 825, 844 (1994) ((“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably.”).
In addition, Plaintiff has come forward with no admissible evidence to show that Defendant Kies was personally responsible for Plaintiff contracting COVID-19. His only allegations in his unverified FAC as to Defendant Kies is that he was assigned to Plaintiff's building in December of 2020 and he “didn't wear a mask” and he “didn't tell inmates to wear a mask or do six foot social distancing.” (FAC at 12.) Defendant Kies has submitted a sworn declaration in which he attests that in December of 2020 he “did not report to work with any flu-like or COVID-19 symptoms” nor did he test positive for COVID-19 in December of 2020. (Decl. of C. Kies ¶ 6.) Moreover, Kies attests that as “required by the institution's protocols, [he] also wore a mask whenever [he] was on site” because he was “mindful of the security cameras, and thus ensured [he] had a mask on at all times, disinfecting gear, using hand sanitizer, using gloves, among other polices, to avoid disciplinary action.” (Id.) Plaintiff offers no evidence to support his unverified claim that he contracted COVID-19 due to any direct or indirect action by Defendant Kies.
Simply put, Plaintiff offers no evidence that he contracted COVID-19 due to any direct, or even indirect, action on the part of any of the named Defendants. For these reasons, the Court finds that Defendants have carried their burden of showing an absence of a genuine issue of material fact in dispute and Court GRANTS Defendants' Motion for Summary Judgment based on individual causation.
2. Deliberate Indifference
Even if Plaintiff were able to establish that Defendants actions somehow caused him to become infected with COVID-19, he is unable to overcome Defendants' showing that there is no triable issue of material fact to establish that any of the named Defendants acted with deliberate indifference to his health and safety. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. Amend. VIII. In order to state a plausible Eighth Amendment claim for relief, a Plaintiff must allege facts sufficient to show that Defendants acted with ‘deliberate indifference.' Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A prison official acts with ‘deliberate indifference ... only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.'” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gipson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro, 833 F.3d at 1076). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person ‘must also draw the inference.'” Id. (quoting Farmer, 511 U.S. at 837). Prison officials have a duty to protect inmates from communicable diseases. See e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (finding prison officials may not “be deliberately indifferent to the exposure of inmates to a serious, communicable disease”); Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (affirming a finding of an Eighth Amendment violation where a facility housed individuals in crowded cells with others suffering from infectious diseases, such as Hepatitis and venereal disease, and the individuals' “mattresses were removed and jumbled together each morning, then returned to the cells at random in the evening”).
Defendants move for summary judgment on the grounds that there is no evidence in the record to support a finding that either Defendant was deliberately indifferent to Plaintiff's medical needs. (See Defs.' Memo of P&As at 14.)
As an initial matter, there is no dispute or challenge to Plaintiff's claims that contracting COVID-19 posed a serious risk of harm. See Plata v. Newsom, 445 F.Supp. 557, 559 (N.D. Cal. 2020) (“[N]o one questions that [COVID-19] poses a substantial risk of serious harm” to prisoners.).
Plaintiff claims, again without evidentiary support, that he contracted COVID-19 because Defendants failed to comply with CDC guidelines by not practicing social distancing, housing infected inmates with non-infected inmates, providing inadequate sanitation, and permitting correctional officers to refuse to wear masks despite it being against policy. (See generally FAC.)
In his Opposition, Plaintiff argues that inmates were forced to “co-exist in a cell with inmates who were infected” with COVID-19 but Plaintiff was housed in a single cell with no other inmate. (See Pl.'s Opp'n at 5; Kies Decl. at ¶ 4.) Plaintiff was also provided cleaning supplies to clean and disinfect his cell. (See Kies Decl. at ¶ 7.)
Plaintiff claims Defendants “willfully, purposely, with malicious intent did disregard COVID-19 protocols at every turn” but offers no admissible evidence to support this broad claim. (Pl.'s Opp'n at 5.) Dr. Adler opines that the “policies and procedures developed by CDCR, CCHCS, and Warden Pollard in response to the COVID pandemic during the time period of March 2020 through January 2021 were effective” and there is “no evidence that CO Kies took any action to contradict Warden Pollard's Covid policies.” (Adler Decl. at 14.) Moreover, Dr. Adler opines that the “Defendants' actions did not exhibit deliberate indifference to Plaintiff's safety or medical needs.” (Id. at 15.)
The Court finds that Plaintiff has failed to raise a triable issue of material fact that any of the named Defendants were deliberately indifferent to an excessive risk to his health or safety in violation of his Eighth Amendment rights. Accordingly, Defendants' Motion for Summary Judgment is GRANTED. See Celotex, 477 U.S. at 323 (“The moving party is ‘entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.”).
Because the Court finds Defendants are entitled to judgment as a matter of law on the merits of Plaintiff's Eighth Amendment claim, the Court need not address Defendants' alternative argument that they are entitled to qualified immunity. See, e.g., Aguilera v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) (noting that if no constitutional violation occurred the court need not decide whether qualified immunity applies).
V. CONCLUSION
In light of the foregoing, the Court GRANTS Defendants' Motion for Summary Judgment (Doc. 57). The Clerk of the Court is DIRECTED to enter judgment in favor of Defendants and to close the case.
IT IS SO ORDERED.