IN RE CIM-SQ TRANSFER CASES

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [8] 9 IN RE CIM-SQ TRANSFER CASES Case No. 5:20-cv-06326-EJD [10] ORDER OF SERVICE This Document Relates To: [11] 24-cv-00490; Lowe v. State of California et [12] al. [13] 14 INTRODUCTION 15 Plaintiff, a California prisoner, filed a pro se civil rights action in state court. Plaintiff 16 alleged that defendants violated his constitutional rights by transferring over 100 inmates, some of 17 whom were infected with COVID-19, from the California Institution for Men (CIM) to San 18 Quentin State Prison (SQSP)1 in May 2020. Dkt. No. 1 at 18-19. The case is now before the Court 19 for screening pursuant to 28 U.S.C. § 1915A(a), and service of the complaint on defendants is 20 ordered. 21 This case has been consolidated with cases in this district related to the 2020 prisoner 22 transfer and related to the first case filed, No. 5:20-cv-06326-EJD, which now has the caption “In 23 Re CIM-SQ Transfer Cases.” Pro se prisoner cases that are part of the consolidated matter are 24 stayed except for the purposes of service. Service shall therefore proceed in plaintiff’s case as 25 ordered below, but the case will remain stayed for all other purposes. The docket for Case No. 2426 cv-00490-EJD and all other individual dockets have been closed. If plaintiff wishes to file any [27] 1 motions, he must file them in Case No. 5:20-cv-06326-EJD and include his original case number, 2 No. 24-cv-00490-EJD, on the left side of the heading. 3 STANDARD OF REVIEW 4 Federal courts must engage in a preliminary screening of cases in which prisoners seek 5 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 6 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 7 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 8 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 9 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 10 F.2d 696, 699 (9th Cir. 1990). 11 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the [12] statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon [13] which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to [14] state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to [15] provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a [16] formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must [17] be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, [18] 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to [19] state a claim for relief that is plausible on its face.” Id. at 1974 . [20] To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two elements: (1) that a [21] right secured by the Constitution or laws of the United States was violated, and (2) that the alleged [22] violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 23 42, 48 (1988). [24] If a court dismisses a complaint for failure to state a claim, it should “freely give [25] leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to [26] deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, [27] repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 1 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 2 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 3 LEGAL CLAIMS 4 Defendants were involved in the decision to transfer over 100 prisoners, some of whom 5 were infected with COVID-19, from the CIM to SQSP in May 2020. Dkt. No. 1 at 18-19. 6 Defendants then failed to take adequate safety precautions before, during, and after the transfer, 7 including failing to test the transferring prisoners or screen them for symptoms at the appropriate 8 times, failing to implement distancing measures on the transfer buses, and failing to test and 9 isolate the transferred prisoners upon arrival. Id at 19-20. Over the course of three weeks, SQSP 10 went from having no cases of COVID to 499 cases, and by late July, SQSP had more than 2,000 11 prisoner cases and 26 prisoners had died from the virus. Id. at 19, 24. Then defendants failed to 12 follow the recommendations of a Marin County public health official to mitigate spread, and that 13 there was “a grave lack of personal protective equipment and masks at San Quentin . . . even 14 though masks and PPE were easily obtainable.” Id. at 20-21. Defendants failed to follow the 15 recommendations of a group of public health experts, who toured SQSP at the request of federal 16 receiver Clark Kelso, to release or transfer prisoners and avoid reliance on punitive housing to 17 quarantine the sick. Id. at 21-22. Further, defendants refused offers by the Innovative Genomics 18 Institute at Berkeley and by a research laboratory at UCSF Medical Center to provide free COVID 19 testing. Id. at 22. 20 Plaintiff alleges he became infected with COVID in May or June 2020. Id. at 32. 21 Plaintiff names the following defendants: 22 1. The State of California 23 2. California Department of Corrections and Rehabilitation (“CDCR”) 24 3. SQSP 25 4. Ralph Diaz, former secretary of CDCR 26 5. Estate of Robert S. Tharratt, former Medical Director of CDCR 27 6. Ronald Davis, Warden of SQSP 1 8. Clarence Cryer, Chief Executive Officer of SQSP 2 9. Alison Pachynski, Chief Medical Executive of SQSP 3 10. Shannon Garrigan, Chief Physician and Surgeon of SQSP 4 11. Louie Escobell, Health Care Chief Executive Officer of CIM 5 12. Muhammad Farooq, Chief Medical Executive for CIM 6 13. Kirk Torres, Chief Physician and Surgeon for CIM 7 14. Does 1 through 20. 8 ECF 1 at 4. Plaintiff sues all defendants who are people in their individual capacities. Id. 9 Plaintiff alleges that defendants Diaz, Estate of Tharratt, Davis, Broomfield, Cryer, 10 Pachynski, Garrigan, Escobell, Farooq, Torres, and Does 1-20 violated his rights under the Eighth 11 Amendment by being deliberately indifferent, either directly or via supervisory liability, to his 12 medical and safety needs, and violated his rights under California Civil Code section 52.1. ECF 1 13 at 34-41. Plaintiff also brings a negligent infliction of emotional distress claim against those 14 defendants. Id. at 45. 15 Plaintiff alleges that defendants State of California, CDCR, and San Quentin violated his 16 rights under the Rehabilitation Act. Id. at 43. 17 Plaintiff seeks declaratory relief, compensatory damages, punitive damages, and costs. Id. 18 at 46-47. 19 ANALYSIS 20 A. Eighth Amendment Claim 21 The allegations regarding the May 2020 transfer of CIM inmates into SQSP state 22 cognizable Eighth Amendment claims against defendants Diaz, Estate of Tharratt, Davis, 23 Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres. Farmer v. Brennan, 511 24 U.S. 825 , 837 (1994) (prison official is deliberately indifferent if he or she knows that prisoner 25 faces substantial risk of serious harm and disregards that risk by failing to take reasonable steps to 26 abate it). 27 B. Bane Act 1 at interfering with rights that are secured by federal or state law, where the interference is carried 2 out ‘by threats, intimidation or coercion’.” Reese v. Cnty. of Sacramento, 888 F.3d 1030 , 1040 3 (9th Cir. 2018) (quoting Venegas v. County of Los Angeles, 153 Cal.App.4th 1230, 1239 (2007)). 4 A defendant must have “specific intent” to violate the plaintiff’s rights. “But it is not necessary 5 for the defendants to have been ‘thinking in constitutional or legal terms at the time of the 6 incidents, because a reckless disregard for a person’s constitutional rights is evidence of a specific 7 intent to deprive that person of those rights’.” Id. at 1035, 1045 (quoting United States v. Reese, 2 8 F.3d 870, 885 (9th Cir. 1993)) (triable issue as to specific intent where the defendant deputy 9 sheriffs, responding to a 911 call about a gunshot and a man with a knife, fired at the plaintiff as 10 he answered the door with a knife). Here, liberally construed, plaintiff has stated a cognizable 11 claim that defendants acted with reckless disregard for his constitutional rights, meeting the 12 elements of the Bane Act. 13 C. Rehabilitation Act 14 The elements of a § 504 Rehabilitation Act claim are that: (1) the plaintiff is a handicapped 15 person under the Act; (2) he is otherwise qualified; (3) the relevant program receives federal 16 financial assistance; and (4) the defendants impermissibly discriminated against him on the basis 17 of the handicap. Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988). The Act applies to state 18 prisons receiving federal financial assistance. Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th 19 Cir. 1997), and a state’s acceptance of federal funds may waive sovereign immunity. See Pugliese 20 v. Dillenberg, 346 F.3d 937, 937-38 (9th Cir. 2003) (per curiam). 21 Here, plaintiff’s allegations that he has a disability consist of the fact that he is African 22 American and of advanced age. Dkt. No. 1 at 44. Neither race nor age is a disability for purposes 23 of the Rehabilitation Act. Plaintiff has therefore not state a Rehabilitation Act claim. This claim 24 will be dismissed along with defendants State of California, CDCR, and SQSP. 25 D. Negligent Infliction of Emotional Distress 26 Plaintiff has also stated a cognizable state-law claim for negligent infliction of emotional 27 distress. Under California law, “there is no independent tort of negligent infliction of emotional 1 infliction of emotional distress claim is only available where the “defendant has assumed a duty to 2 plaintiff in which the emotional condition of the plaintiff is an object,” and “recovery is available 3 only if the emotional distress arises the defendant’s breach of some other legal duty and the 4 emotional distress is proximately caused by that breach of duty.” Id. at 985 . Here, defendants 5 have a duty to plaintiff as a prisoner under state tort law. California “[c]ase law holds that ‘there is 6 a special relationship between jailer and prisoner, imposing on the former a duty of care to the 7 latter’.” Lawson v. Superior Ct., 180 Cal. App. 4th 1372 , 1389–90 (2010) (quoting Giraldo v. 8 Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 250 (2008)). Plaintiff alleges 9 that the emotional distress arose out of defendants’ breach of their duty to him by exposing him to 10 COVID-19. 11 CONCLUSION 12 1. Defendants the State of California, CDCR, and SQSP are DISMISSED. 13 2. Plaintiff has stated the following cognizable claims against defendants Diaz, Estate 14 of Tharratt, Davis, Broomfield, Cryer, Pachynski, Garrigan, Escobell, Farooq, and Torres: 15 violation of the Eighth Amendment by deliberate indifference to his health and safety needs; 16 California Civil Code section 52.1; and negligent infliction of emotional distress. 17 3. The Court orders that service on the following defendants shall proceed under the 18 California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for civil 19 rights cases from prisoners in the CDCR’s custody: 20 a. Ralph Diaz, former secretary of CDR 21 b. Estate of Robert S. Tharratt, former Medical Director of CDR 22 c. Ronald Davis, Warden of SQSP 23 d. Ronald Broomfield, Acting Warden of SQSP 24 e. Clarence Cryer, Chief Executive Officer of SQSP 25 f. Alison Pachynski, Chief Medical Executive of SQSP 26 g. Shannon Garrigan, Chief Physician and Surgeon of SQSP 27 h. Louie Escobell, Health Care Chief Executive Officer of CIM 1 j. Kirk Torres, Chief Physician and Surgeon for CIM 2 In accordance with the program, the clerk is directed to serve on the CDCR via email the 3 following documents: the operative complaint (Dkt. No. 1 in 24-cv-00490), this Order of Service, 4 a CDCR Report of E-Service Waiver form, and a summons. The clerk also shall serve a copy of 5 this order on the plaintiff. 6 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 7 provide the court a completed CDCR Report of E-Service Waiver advising the court which 8 defendant(s) listed in this order will be waiving service of process without the need for service by 9 the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR 10 also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney 11 General’s Office which, within 21 days, shall file with the Court a waiver of service of process for 12 the defendant(s) who are waiving service. 13 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 14 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 15 USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies 16 of this order, the summons and the operative complaint for service upon each defendant who has 17 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E18 Service Waiver. 19 4. All defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 20 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 21 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 22 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 23 cost of such service unless good cause can be shown for their failure to sign and return the waiver 24 form. 25 5. All communications by plaintiff with the Court must be served on defendants’ 26 counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 27 any document which a party files but fails to send a copy of to his opponent. Until defendants’ ] defendants, but once defendants are represented by counsel, all documents must be mailed to 2 || counsel rather than directly to defendants. 3 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 4 || Court informed of any change of address and must comply with the Court’s orders in a timely 5 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 6 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 7 || pending case every time he is moved to a new facility. 8 7. Any motion for an extension of time must be filed no later than the deadline 9 || sought to be extended and must be accompanied by a showing of good cause. Plaintiff is 10 || cautioned that he must include the case name and case number for this case on any document he 11 submits to the Court for consideration in this case. 12 8. The case will remain stayed for all purposes other than service of the complaint on 13 defendants. IT IS SO ORDERED. 3 15 || Dated: May 22, 2025 EDWARD J. DAVILA 18 United States District Judge