Amos v. Allison

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 DONALD J. AMOS, Case No. 20-cv-08512-HSG 8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v. 10 K.ALLISON, et al., 11 Defendants. [12] 13 Plaintiff, an inmate at San Quentin State Prison (“SQSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983 . His complaint (Dkt. No. 1) is now before the Court for review 15 under 28 U.S.C. § 1915A. Plaintiff has paid the filing fee. Dkt. No. 8. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 §1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662 , 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: (1) that a 6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Complaint 10 Plaintiff names as defendants California Department of Corrections and Rehabilitation 11 (“CDCR”) director Alison; CDCR Secretary Diaz; CDCR Associate Director Davis; federal 12 receiver Kelso; Governor Newsom; California Correctional Health Care Services (“CCHCS”) Dr. 13 Joseph Bick; and various prison officials at California Institute for Men (“CIM”)1 and SQSP. 14 Plaintiff makes numerous allegations regarding SQSP’s handling of the COVID-19 15 pandemic, and certain other prison conditions.2 With respect to SQSP’s handling of the COVID16 19 pandemic, Plaintiff makes the following allegations: (1) in early March 2020, CDCR refused 17 free COVID tests for staff and inmates; (2) in early March 2020, another inmate asked SQSP 18 prison officials why masks were not being worn, why inmates were required to line up for 19 medication pickup when there was no social distancing taking place in these lines, why an entire 20 tier (165 inmates) were let out at the same time for showers and made to wait in a 10x10 waiting 21 area where no masks were worn, and why during a medical quarantine he was made to walk 22 counter clockwise around an entire tier while inmates were yelling and eating unmasked; (3) the 23 use of 36” diameter fans to address high temperatures and inadequate ventilation blew the virus 24 throughout the building; (4) there was no independent hot-water hose bib provided to clean the 25 shower area, despite multiple requests; (5) on May 30, 2020, 121 inmates were transferred from [26] 1 Plaintiff incorrectly refers to CIM as Chino State Prison. [27] 2 Plaintiff’s complaint is virtually identical to many other complaints received by the Court. See, 1 CIM to SQSP without being tested for COVID immediately prior to transfer, and were not 2 quarantined upon arrival, resulting in over 2,000 inmates and staff being infected with COVID-19, 3 and at least 28 deaths from COVID-19; (6) Plaintiff contracted COVID -19 on or around July 5, 4 2020 and spent time explaining to building staff that he had underlying medical conditions that 5 could be aggravated by COVID-19; (7) inmates are generally unable to obtain hand sanitizer; 6 (8) cellblocks are disinfected only two to three times a month; (9) during medical quarantine, 7 SQSP refuses to cell-feed inmates, which would contain the spread of COVID-19, but instead 8 required inmates to exit their cell and line up for meals; (10) SQSP Warden Davis approved the 9 transfer of SQSP inmates to North Kern State Prison (“NKSP”), despite being aware that certain 10 of these inmates had tested positive for COVID-19; (11) the hand sanitizer distributed by SQSP is 11 ineffective; and (12) the cleaning conducted is “illusory.” Plaintiff makes the following 12 allegations regarding prison conditions that do not appear to be directly related to COVID-19: 13 (1) from on or about August 1, 2019 to August 1, 2020, all toilets were removed from the yard, 14 requiring inmates to defecate in trash cans or urinate in the gutter, when not in their cells; 15 (2) Plaintiff has not had outdoor exercise in months, since around August 1, 2020; (3) the removal 16 of shower heads to ensure socially distanced showers resulted in a long wait for showers, 17 effectively eliminating yard time; and (4) SQSP effectively stopped providing medical care and 18 dental care from March 17, 2020 to November 1, 2020. 19 Plaintiff alleges that Defendants have violated their obligations under the Fifth 20 Amendment to provide him conditions of reasonable health and safety; have violated their 21 obligations under the Eighth Amendment to provide him with the minimal civilized measure of 22 life’s necessities; have violated his substantive right to adequate medical care and to be free of 23 harm; and have denied him his state-created liberty interest to effective medical care. 24 The obligation of prison officials to provide prisoners with the basic necessities of life, 25 such as food, clothing, shelter, sanitation, medical care and personal safety, arises from the Eighth 26 Amendment, not the Fifth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); 27 DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 199-200 (1989). Exercise is [1] 12 F.3d 1444, 1457 (9th Cir. 1993); Toussaint v. Rushen, 553 F. Supp. 1365, 1380 (N.D. Cal. 2 1983), aff’d in part and vacated in part on other grounds by 722 F.2d 1490 (9th Cir. 1984). Some 3 form of regular exercise, including outdoor exercise, “is extremely important to the psychological 4 and physical well-being” of prisoners. See Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). 5 Prison officials therefore may not deprive prisoners of regular exercise. See Toussaint v. 6 McCarthy, 597 F. Supp. 1388, 1393 (N.D. Cal. 1984), aff’d in part and rev’d in part on other 7 grounds by 801 F.2d 1080 (9th Cir. 1986). The Ninth Circuit has not specified the “minimum 8 amount of weekly exercise that must be afforded to detainees who spend the bulk of their time 9 inside their cells,” but has held that ninety minutes per week of exercise, which is the equivalent of 10 slightly less than thirteen minutes a day, does not comport with Eighth Amendment standards. 11 Pierce v. County of Orange, 526 F.3d 1190, 1211-12 (9th. Cir. 2008). 12 A prison official violates the Eighth Amendment when two requirements are met: (1) the 13 deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses 14 a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 15 U.S. 294 , 298 (1991)). A prison official is deliberately indifferent if he or she knows that a 16 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 17 reasonable steps to abate it. Farmer, 511 U.S. at 837 . The prison official must not only “be aware 18 of facts from which the inference could be drawn that a substantial risk of serious harm exists,” 19 but “must also draw the inference.” Id. If a prison official should have been aware of the risk, but 20 did not actually know, the official has not violated the Eighth Amendment, no matter how severe 21 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 22 Plaintiff has presented serious allegations that may state Eighth Amendment claims. 23 However, the Court DISMISSES the complaint with leave to amend for the reasons set forth 24 below. 25 First, Plaintiff may only bring suit for injuries that he has suffered. Plaintiff makes 26 allegations about what another inmate heard or experienced with respect to the handling of 27 COVID-19, general allegations about the failure to provide medical care and dental care, and the 1 must normally assert his own legal interests rather than those of third parties.’” Fleck & Assocs., 2 Inc. v. Phoenix, 471 F.3d 1100, 1104 (9th Cir. 2006) (citing Phillips Petroleum Co. v. Shutts, 472 3 U.S. 797 , 804 (1985)). In addition, pro se plaintiffs are generally prohibited from pursuing claims 4 on behalf of others in a representative capacity. See Simon v. Hartford Life, Inc., 546 F.3d 661 , 5 664 (9th Cir. 2008). Plaintiff may only bring suit for injuries that he has suffered, and not for 6 general concerns about conditions of confinement. For example, he may only bring suit regarding 7 the failure to provide medical care and dental care from March 17, 2020 to November 1, 2020 if 8 this failure directly affected him, i.e. if he sought, and was denied, medical care or dental care, and 9 this denial constituted deliberate indifference to his serious medical needs. Similarly, Plaintiff 10 may not bring suit regarding the transfer of COVID-positive SQSP inmates to NKSP unless this 11 transfer caused him constitutional injury. 12 Second, with respect to many of Plaintiff’s claims, Plaintiff presents only conclusory 13 allegations with little support, simply repeats the elements of the legal claim, and fails to identify 14 the actions of specific defendants. Allegations that there was little social distancing or hand 15 sanitizer, without more, are insufficient to state a claim. 16 Third, the complaint appears to violate the joinder requirements set forth in Fed. R. Civ. P. 17 20(a)(2). Fed R. Civ. P. 20(a)(2) provides that all persons “may be joined in one action as 18 defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative 19 with respect to or arising out of the same transaction, occurrence, or series of transactions or 20 occurrences; and (B) any question of law or fact common to all defendants will arise in the 21 action.” Fed. R. Civ. P. 20(a)(2). The upshot of these rules is that “multiple claims against a 22 single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim 23 B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff’s 24 allegations regarding SQSP’s handling of the COVID-19 inmates (transfer of CIM inmates, failure 25 to wear masks, requiring inmates to exit cell for medication pickup and meals) do not arise out of 26 the same transaction, occurrence, or series of transactions or occurrences, and do not share a 27 common question of law or fact as Plaintiff’s allegations regarding the removal of toilets from the 1 this action that meet the joinder requirements. In this action, he should only pursue the acts that 2 arise out of the same transaction, occurrence, or series of transactions or occurrences, and share a 3 common question of law or fact. To seek relief for claims arising out of other incidents, Plaintiff 4 must bring a separate action. 5 Fourth, there is no Section 1983 liability simply because the defendant employed the 6 alleged wrongdoer or because an individual supervised the alleged wrongdoer. See Taylor v. List, [7] 880 F.2d 1040, 1045 (9th Cir. 1989) (no respondent superior liability, or supervisory liability, 8 under Section 1983, i.e. no liability under theory that one is liable simply because he supervises 9 person who has violated plaintiff’s rights). Vague and conclusory allegations concerning the 10 involvement of supervisory personnel in civil rights violations are not sufficient to state a claim. 11 See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). For example, Plaintiff states that 12 “obviously” and “surely” defendants Pachynski, Escobell, Borders, Kelso, Davis, Broomfield, 13 Diaz, Allison and Newsom, were aware of the transfer of CIM inmates to SQSP and that 14 defendant Kelso “should have been right on top of this.” ECF No. 1 at 11-12. Plaintiff must 15 present more information as to how each defendant, including the supervisory defendants, was 16 directly involved in the constitutional deprivation and how the action (or inaction) constituted 17 deliberate indifference. 18 In preparing an amended complaint, the Court provides the following guidance. 19 Submitting a complaint that is a duplicate of other complaints can be problematic in that the 20 duplicate complaint may present claims relevant to other inmates but not to Plaintiff. Plaintiff 21 should identify what each defendant did (or did not do), and how this action (or inaction) violated 22 Plaintiff’s constitutional rights. While this complaint was a duplicate of other complaints, Plaintiff 23 must describe how the specific allegations and actions of each defendant apply to him. In 24 addition, Plaintiff should only include related claims against specific defendants in this action. 25 Plaintiff is cautioned that “[t]hreadbare recitals of the elements of a cause of action, supported by 26 mere conclusory statements, do not suffice” to state a cognizable cause of action, and that the 27 Court is not bound to accept as true a legal conclusion couched as a factual allegation. Ashcroft, 1 CONCLUSION 2 For the foregoing reasons, the complaint is dismissed with leave to amend. Within twenty3 || eight (28) days of the date of this order, Plaintiff shall file an amended complaint that addresses 4 || the identified deficiencies. The amended complaint must include the caption and civil case 5 || number used in this order, Case No. C 20-08512 HSG (PR) and the words “AMENDED 6 || COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 7 || questions on the form in order for the action to proceed. An amended complaint completely 8 replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 9 || 2012). Accordingly, Plaintiff must include in his amended complaint all the claims he wishes to 10 || present and all of the defendants he wishes to sue, and may not incorporate material from the prior 11 complaint by reference. Failure to file an amended complaint in accordance with this order in the 12 || time provided will result in dismissal of this action without further notice to Plaintiff. The Clerk 5 13 shall include two copies of the court’s complaint form with a copy of this order to Plaintiff. IT IS SO ORDERED. 3 15 || Dated: 6/1/2021 [16] aavwode S. GILLIAM, JR. i 17 United States District Judge