Hazel v. Russell

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 TERRENCE HAZEL Case No. 3:20-CV-0726-ART-CLB 7 Plaintiff, ORDER REGARDING MAGISTRATE v. JUDGE BALDWIN’S REPORT AND 8 RECOMMENDATION [ECF No. 40] PERRY RUSSELL, et al., [9] Defendants. [10] 11 I. SUMMARY 12 Pro se Plaintiff Terrence Hazel (“Hazel”), a former inmate of the Nevada 13 Department of Corrections (“NDOC”), brought this action under 42 U.S.C. § 1983 14 while incarcerated at the Northern Nevada Correctional Center (“NNCC”). (ECF 15 No. 1). While incarcerated, Hazel’s Complaint was screened, and his Eighth 16 Amendment deliberate indifference to serious medical needs claim was allowed 17 to proceed. (ECF No. 22 at 4-7). Hazel was released from prison prior to filing his 18 Amended Complaint. (See ECF Nos. 24, 26). As Hazel was no longer incarcerated 19 when he filed his Amended Complaint, (ECF No. 26) this Court allowed it to 20 proceed without screening. (ECF No. 27). Hazel’s Amended Complaint renews his 21 Eighth Amendment claim from his initial Complaint. (ECF No. 26 at 4-6). 22 Before the Court is a Report and Recommendation (“R&R”) of United States 23 Magistrate Carla L. Baldwin (ECF No. 40), recommending the Court grant in part 24 and deny in part Defendants’ Motion to Dismiss (ECF No. 33). Defendants filed 25 an objection to the R&R. (ECF No. 41 (“Objection”)). This Court granted Hazel’s 26 motion to extend time to object to the R&R and respond to Defendants’ Objection, 27 but Hazel did not do so. (ECF No. 45). Because the Court agrees with Judge [28] 2 Part and Denies-in-Part Defendants’ Motion to Dismiss. (ECF No. 33). 3 II. BACKGROUND 4 The Court incorporates by reference Judge Baldwin’s recitation of Plaintiff’s 5 allegations in the First Amended Complaint, or “FAC,” provided in the R&R, which 6 the Court adopts. (ECF No. 40 at 3:14-4:2). 7 III. LEGAL STANDARD 8 This Court “may accept, reject, or modify, in whole or in part, the findings 9 or recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). Where 10 a party timely objects to a magistrate judge’s report and recommendation, then 11 the Court is required to “make a de novo determination of those portions of the 12 [report and recommendation] to which objection is made.” Id. The Court’s review 13 is thus de novo because Defendants filed their Objection. (ECF No. 41). 14 IV. DISCUSSION 15 Defendants make several arguments in their Objection. First, Defendants 16 argue that Magistrate Judge Baldwin failed to address Defendants’ motion on the 17 merits because she applied an incorrect standard and did not address 18 Defendants’ arguments that 1) a violation of NDOC’s own policies does not create 19 a constitutional violation and 2) Hazel failed to allege facts sufficient to state a 20 claim. (ECF No. 41 at 1, 3-5). Second, Defendants argue that they are entitled to 21 qualified immunity because 1) there was no constitutional violation, and 2) Hazel 22 did not establish that a clearly established right was violated. (ECF No. 41 at 523 7). The Court will address each argument in turn. 24 A. Hazel Pled His Eighth Amendment Claim Sufficiently 25 Defendants argue that Magistrate Judge Baldwin erred in relying on the 26 Court’s order screening Hazel’s Complaint because Hazel’s Complaint is no longer 27 the operative complaint, and Rule 12(b)(6) is the relevant standard, not 28 U.S.C. 28 1915A(a) and 1915(e)(2). (ECF No. 41 at 3-4). “The standard for determining 2 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 3 standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 4 Cir. 2012) (citing Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)). Hazel’s First 5 Amended Complaint includes allegations that he informed Defendants Russell 6 and Daniels NNCC staff were not following specific NDOC COVID-19 protocols: 7 “Specifically: 1. Masks were not worn by inmates or staff; 2. No social distancing 8 or handwashing; 3. No Covid testing of staff or inmates.” (ECF No. 26 at 5). Hazel 9 also alleges he subsequently “use[d] every means possible” to advise Defendants 10 Russell, Daniels, Minev, Greene, Oakmund, Caporiles, and Mears that Hazel was 11 at a high risk of “contracting and dying from Covid.” Id. Hazel’s First Amended 12 Complaint alleges that “[n]ot one defendant, or subordinate staff took any 13 measures to respond to my requests, flatten the covid curve, follow Emergency 14 Covid Protocols until thousands of inmates and staff contracted Covid in mid15 late 2020.” Id. 16 “A public official’s ‘deliberate indifference to a prisoner’s serious illness or 17 injury’ violates the Eighth Amendment ban against cruel punishment.” Clement 18 v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quoting Estelle v. Gamble, 429 U.S. 19 97, 105 (1976)). There is both an objective and a subjective prong to an actionable 20 Eighth Amendment violation. An inmate must demonstrate they were confined 21 under conditions posing a risk of “objectively, sufficiently serious” harm (the 22 objective prong) and that officials had a “sufficiently culpable state of mind” in 23 denying medical care (the subjective prong). Id. (quoting Wallis v. Baldwin, 70 24 F.3d 1075, 1076 (9th Cir. 1995). “[K]nown noncompliance with generally 25 accepted guidelines for inmate health strongly indicates deliberate indifference to 26 a substantial risk of serious harm.” Hernandez v. Cty. of Monterey, 110 F. Supp. 27 3d 929, 943 (N.D. Cal. 2015). 28 Hazel alleges that NNCC staff did not comply with emergency protocols 2 he informed Defendants of these failures to comply with NDOC’s COVID 3 protocols, and that Hazel himself was at a high risk of death or complications 4 from COVID-19, but none of them either acted to ensure staff followed COVID5 19 protocols or took other actions to protect Hazel. As a result, Hazel contracted 6 COVID-19 and alleges ongoing complications from that infection. (ECF No. 26 at 7 6). At the motion to dismiss stage, these allegations are sufficient to satisfy the 8 objective (Hazel was at high risk for complications from COVID-19 and confined 9 in conditions allegedly out of compliance with NDOC COVID-19 policies) and 10 subjective (Defendants allegedly knew of both Hazel’s high-risk status and NNCC 11 staff’s non-compliance with NDOC COVID-19 policies, but took no action to 12 mandate compliance with COVID-19 policies or otherwise protect Hazel from 13 infection) prongs. Like Magistrate Judge Baldwin, this Court finds that Hazel has 14 sufficiently pled a colorable Eighth Amendment claim against Defendants 15 Russell, Daniels, Dr. Minev, Dr. Greene, Dr. Oakmund, Dr. Caporiles, and Dr. 16 Mears. 17 B. Defendants Are Not Entitled to Qualified Immunity 18 Next, Defendants argue that Magistrate Judge Baldwin failed to address 19 the two prongs required when analyzing qualified immunity. (ECF No. 41 at 5-7). 20 “In §1983 actions, qualified immunity protects government officials from liability 21 for civil damages insofar as their conduct does not violate clearly established 22 statutory or constitutional rights of which a reasonable person would have 23 known.” Sampson v. Cnty. of Los Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020) 24 (internal quotation marks and citations omitted). Because Hazel has sufficiently 25 pled an Eighth Amendment violation, satisfying the first prong of the qualified 26 immunity analysis, the question is whether the constitutional rights at issue is 27 clearly established. See Saucier v. Katz, 533 U.S. 194 , 201 (2001) (courts must 28 consider the alleged violation “in the light most favorable to the party asserting 2 223 (2009). 3 A constitutional right is clearly established if at the time of the government 4 officers’ action, the state of the law “gave the officers fair warning that their 5 conduct was unconstitutional.” Ballentine v. Tucker, 28 F.4th 54, 64 (9th Cir. 6 2022) (citation omitted). Whether a right is clearly established “depends 7 substantially upon the level of generality at which the relevant ‘legal rule’ is to be 8 identified.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). While 9 there need not be “a case directly on point, [ ] existing precedent must have placed 10 the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. 11 al-Kidd, 563 U.S. 731 , 741 (2011)). 12 Prison officials have a constitutional obligation to protect inmates from 13 serious communicable diseases. See, e.g., Helling v. McKinney, 509 U.S. 25 , 31 14 (1993) (“We have great difficulty agreeing that prison authorities may not be 15 deliberately indifferent to an inmate’s current health problems but may ignore a 16 condition of confinement that is sure or very likely to cause serious illness and 17 needless suffering the next week or month or year.”); Hutto v. Finney, 437 U.S. 18 678 (1978) (healthy inmates were crowded with inmates infected with hepatitis 19 and venereal disease); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) 20 (recognizing an Eighth Amendment claim based on an absence of prison policy to 21 screen inmates for communicable diseases and comingling contagious and 22 healthy inmates during an “epidemic of hepatitis C”). This case is unlike the 23 situation in Hines v. Yousef, 914 F.3d 1218 (9th Cir. 2019), in which the Ninth 24 Circuit held that a prisoner’s increased risk of exposure to a non-communicable 25 fungal infection did not violate the Eighth Amendment. Here the spread of 26 COVID-19, a communicable infectious disease, was in part due to the failure of 27 NNCC to enforce guidelines promulgated by NDOC to protect inmates from the 28 disease, including Mr. Hazel. This Court finds that existing Supreme Court 1 || precedent gave government officers fair warning that their alleged failure to abide 2 || by or enforce compliance with NDOC guidelines concerning a_ serious 3 || communicable disease was unlawful. 4|| V. CONCLUSION 5 The Court notes that the parties made several arguments and cited to 6 || several cases not discussed above. The Court has reviewed these arguments and 7 || cases and determines that they do not warrant discussion as they do not affect 8 || the outcome of the issues before the Court. 9 IT IS THEREFORE ORDERED THAT Plaintiff's objection (ECF No. 40) to the 10 || Report and Recommendation of U.S. Magistrate Judge Carla L. Baldwin is 11 || overruled, as stated herein. The Report and Recommendation (ECF No. 40) is 12 || therefore adopted in its entirety. 13 Accordingly, IT IS FURTHER ORDERED that Defendants’ Motion to 14 || Dismiss (ECF No. 33) is GRANTED in part and DENIED in part as follows: 15 1. Defendants’ Motion to Dismiss Hazel’s claims for injunctive relief is 16 GRANTED; and 17 2. Defendants’ Motion to Dismiss based on failure to state a claim and 18 qualified immunity is DENIED without prejudice. [19] 20 DATED THIS Sth Day of December 2022. [21] 22 n floss dem 23 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE