George v. Diaz

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 JOSEPH ANTHONY GEORGE, Case No. 20-cv-03244-SI

8 Plaintiff,

ORDER DENYING TRO, DENYING

9 v. REQUEST FOR COUNSEL, AND

DISMISSING COMPLAINT WITH

10 RALPH DIAZ, et al., LEAVE TO AMEND

11 Defendants. Re: Dkt. Nos. 1, 2, 4

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13 Joseph Anthony George, a prisoner at the Pelican Bay State Prison, filed this pro se civil

14 rights action under 42 U.S.C. § 1983. The complaint is now before the court for review pursuant to

15 28 U.S.C. § 1915A. Plaintiff’s requests for a temporary restraining order and for appointment of

16 counsel also are before the court for review.

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18 BACKGROUND

19 A. Allegations of Complaint

20 The complaint concerns prison officials’ efforts to keep prisoners safe in the era of Covid-

21 19, a disease caused by the novel coronavirus (also known as SARS-CoV-2). Plaintiff sues the

22 Secretary of the California Department of Corrections and Rehabilitation (CDCR), the Chief

23 Medical Executive of the CDCR, the Warden at Pelican Bay, and the Chief Medical Executive at

24 Pelican Bay. He alleges that his constitutional rights have been violated because defendants “have

25 no plan [for] prevention, treatment, medical staff or equipment” for Covid-19. Docket No. 1 at 4.

26 Plaintiff alleges that the coronavirus has caused a global pandemic and will spread rapidly

27 if it gets into the prison population. Id. at 3. He therefore believes that it is imperative that the

1 Plaintiff further alleges that the CDCR has no tests, continues to transfer inmates, and allows

2 staff members to return from vacation without being required to provide a negative test for the

3 coronavirus. “There is no hospital at [Pelican Bay] and no plan to treat inmates if an outbreak

4 occurs. Because this is a rural area with only 3 cases of the coronavirus, they are very lax.” Id. at

5 2. Nonetheless, plaintiff does not want to be transferred to another prison; because there are very

6 few cases of Covid-19 in the rural area in which Pelican Bay is located, transferring him “to a

7 different prison with no vaccine or medication, equipment and medical training [will put] plaintiff

8 at a greater and [imminent] danger of getting infected and dying.” Id. at 4.

9 Plaintiff alleges that he has heart disease and lung damage and, therefore, will die if infected

10 with the coronavirus. Id. at 2. (According to the CDCR’s inmate locator website, plaintiff is 52

11 years old, has been in custody since 2018, and has a parole eligibility date in 2027.

12 https://inmatelocator.cdcr.ca.gov.)

13 Plaintiff is now at Pelican Bay serving a term in the security housing unit (SHU) that expires

14 on August 15, 2020. Id. at 4. Plaintiff allegedly passed through four other prisons en route to

15 Pelican Bay in March. During the period from March 16 through 19, he allegedly went from

16 Donovan to Chino to North Kern to Tracy to Pelican Bay. Id. at 3. He alleges that, during transit,

17 no one was wearing a mask or taking temperatures. He further alleges that, once he arrived at

18 Pelican Bay, he was placed on a two-week quarantine during which his temperature was checked,

19 although checked by medical staff who were not wearing masks 99% of the time. Id. He does not

20 allege that he has contracted Covid-19 – and his complaint is dated more than six weeks after he

21 arrived at Pelican Bay.

22 Plaintiff alleges that he filed a regular inmate appeal and an emergency inmate appeal

23 requesting that prison officials take certain steps (e.g., stop any transfer until the inmate tests

24 negative, require that masks be worn by inmates and staff, and prevent his transfer to any other

25 prison). Id. at 4.

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1 B. Motion For Temporary Restraining Order and Preliminary Injunction

2 Plaintiff has filed a motion for a temporary restraining order (TRO) and preliminary

3 injunction seeking an order (1) requiring defendants “to create a comprehensive practice to treat

4 coronavirus infected inmates and staff that includes test kits, requiring staff to test negative before

5 returning from vacation, train staff and purchase ventilators, dialysis machines, other equipment and

6 supplies for an emergency treatment area”; and (2) preventing plaintiff’s transfer to another prison

7 until there is a vaccine for Covid-19. Docket No. 2 at 3.

8 In his three-page motion for a TRO, plaintiff declares that defendants do not have a plan to

9 prevent or treat inmates or staff in the event of an outbreak of Covid-19, and that he is at a heightened

10 risk of death due to heart disease and lung damage. Other than his statements in the 3-page motion

11 signed under penalty of perjury, plaintiff submits no evidence in support of his motion. He also

12 does not show that he has any expertise in medicine or epidemiology. Rather, his motion (like his

13 complaint) appears to be based on information he has gathered from the news, other inmates, and

14 perhaps prison staff about the coronavirus and Covid-19.

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16 C. Judicially Noticed Facts

17 A court may take judicial notice of facts that are not subject to reasonable dispute because

18 they are generally known or are capable of accurate and ready determination. Fed. R. Evid. 201(b).

19 The court may take judicial notice of matters of public record, such as the existence and authenticity

20 of a document, but cannot take judicial notice of the truth of its contents. See Lee v. City of Los

21 Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001); see, e.g., id. (court could judicially notice existence

22 of waiver of extradition and that it was signed by plaintiff, but could not judicially notice that it was

23 a valid waiver when no court had approved it). The court can take judicial notice of “public records

24 and government documents available from reliable sources on the Internet, such as websites run by

25 governmental agencies.” Gerritsen v. Warner Bros. Entm't Inc., 112 F.Supp.3d 1011, 1033 (C.D.

26 Cal. 2015) (internal quotations omitted).

27 The court takes judicial notice of two facts that illustrate that the governmental response to

1 States. First, the Centers for Disease Control first recommended the use of cloth face coverings in

2 public settings on April 3, 2020. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

3 sick/cloth-face-cover.html. Second, the California statewide stay-at-home order was not issued until

4 March 19, 2020. California Governor Newsom issued Executive Order N-33-20 on March 19,

5 2020, directing California residents to heed the Order of the State Public Health Officer dated March

6 19, 2020, which ordered individuals living in California “to stay home or at their place of residence”

7 with certain exceptions. https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-

8 EO-N-33-20-COVID-19-HEALTH-ORDER.pdf.

9 The court also takes judicial notice of materials on the CDCR’s website that reflect that the

10 CDCR has prepared plans to address the spread of Covid-19 in the California prison system. There

11 is an entire section of the CDCR’s website devoted to the Covid-19 situation and response efforts.

12 https://www.cdcr.ca.gov/covid19/covid-19-response-efforts/#CFC. There also is a CDCR

13 document providing interim guidance for health care providers in the California prison system.

14 https://cchcs.ca.gov/covid-19-interim-guidance/. There also is information posted on the CDCR’s

15 website describing restrictions on inmate transfers and inmate intake as part of the Covid-19

16 response. https://www.cdcr.ca.gov/covid19/covid-19-response-efforts/#TRRP. Importantly, the

17 court does not take judicial notice that the plans discussed on the CDCR’s website have been

18 implemented or will be effective. Rather, the court only takes judicial notice that the CDCR has

19 developed plans to address the Covid-19 problem in California prisons.

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21 DISCUSSION

22 A. Review of Complaint

23 A federal court must engage in a preliminary screening of any case in which a prisoner seeks

24 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

25 § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which are

26 frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief

27 from a defendant who is immune from such relief. See id. at § 1915A(b)(1),(2). Pro se complaints

1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

2 right secured by the Constitution or laws of the United States was violated, and (2) that the violation

3 was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

4 (1988).

5 Although a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation

6 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

7 and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations

8 must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

9 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a

10 claim to relief that is plausible on its face.” Id. at 570.

11 Deliberate indifference to an inmate’s serious medical needs violates the Eighth

12 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.

13 97, 104 (1976); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). To establish an Eighth

14 Amendment claim on a condition of confinement, such as medical care, a prisoner-plaintiff must

15 show: (1) an objectively, sufficiently serious, deprivation, and (2) the official was, subjectively,

16 deliberately indifferent to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834

17 (1994). A defendant is deliberately indifferent if he knows that an inmate faces a substantial risk of

18 serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 511

19 U.S. at 837. The defendant must not only “be aware of facts from which the inference could be

20 drawn that a substantial risk of serious harm exists,” but he “must also draw the inference.” Id.

21 Plaintiff’s complaint fails to state a plausible claim for an Eighth Amendment violation. His

22 complaint falters on the deliberate indifference prong of an Eighth Amendment claim. Plaintiff’s

23 allegations that prison officials have no plans for prevention, treatment, medical staff, or equipment

24 to address Covid-19 in the prisons are not plausible, given the ample evidence (of which this court

25 has taken judicial notice) that the CDCR has prepared plans to address Covid-19 in the prison

26 population. The CDCR’s website shows that the CDCR has plans regarding, for example, inmate

27 movement, inmate health care, inmate release, as well as hygiene and sanitation in the prisons. His

1 wearing face masks or taking his temperature do not suggest deliberate indifference by the

2 defendants in this action given that (a) the Centers for Disease Control did not recommend cloth

3 face coverings in public settings until about two weeks after he was transported, (b) travel in

4 California was not then restricted even for the unincarcerated population, and (c) he did not become

5 sick as a result of being transported in the conditions he alleges.

6 Leave to amend is granted so that plaintiff may file an amended complaint to attempt to

7 plead a claim that is plausible on its face. Plaintiff is cautioned that he must allege facts that

8 plausibly suggest that each defendant has been deliberately indifferent to a serious medical need.

9 Plaintiff also is cautioned that he should confine his allegations to his own individual situation, as

10 he cannot complain about violations of the rights of other prisoners. See Russell v. United States,

11 308 F.2d 78, 79 (9th Cir. 1962) (“ litigant appearing in propria persona has no authority to represent

12 anyone other than himself”); see also Griffin v. Smith, 493 F. Supp. 129, 131 (W.D.N.Y. 1980)

13 (denying class certification on basis that pro se prisoner cannot adequately represent class).

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15 B. Motion For TRO

16 A temporary restraining order preserves the status quo and prevents irreparable harm until a

17 hearing can be held on a preliminary injunction application. See Granny Goose Foods, Inc. v.

18 Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). A temporary

19 restraining order is an “extraordinary remedy” that the court should award only when a plaintiff

20 makes a clear showing that he is entitled to such relief. See Winter v. Natural Res. Defense Council,

21 Inc., 555 U.S. 7, 24 (2008). The standards for a temporary restraining order are the same as those

22 for a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240

23 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff must demonstrate (1) a likelihood of success on the

24 merits, (2) a likelihood of irreparable harm that will result if an injunction is not issued, (3) the

25 balance of equities tips in favor of the plaintiff, and (4) an injunction is in the public interest. See

26 Winter, 555 U.S. at 20.1 The irreparable injury must be both likely and immediate. See id. at 22;

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1 Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff

2 must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must

3 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”)

4 Plaintiff is not entitled to a TRO or preliminary injunction to require CDCR officials to

5 implement certain steps to address Covid-19 or to require CDCR officials to refrain from

6 transferring plaintiff. First, there does not appear to be a likelihood of success on the merits at this

7 time. As explained in the preceding section, plaintiff has not yet stated a claim for relief.

8 Second, plaintiff does not show irreparable injury that is both likely and imminent. The

9 evidentiary support for the requested TRO to compel CDCR officials to develop a plan – which

10 consists only of plaintiff’s verified three-page motion -- falls far short of showing that irreparable

11 harm is likely and imminent if interim relief is not granted. As explained above, plaintiff’s

12 suggestion that the CDCR has no plan to address Covid-19 in the prison is not plausible, given the

13 ample evidence on the CDCR’s website showing that the CDCR does have a plan. This is not to

14 say that having some plan eliminates any concern about an inmate’s health and safety, as a plan that

15 exists might not be put into practice or it might not be a plan that effectively addresses the problem.

16 But plaintiff is not taking issue with the plan that is in place – he contends there is no plan. Plaintiff

17 offers no competent evidence that the steps taken by CDCR to date and the plan the CDCR has

18 described on the website, amount to deliberate indifference to his serious medical needs. Moreover,

19 plaintiff alleges that he is housed in a prison in a rural area in which there are only three cases of

20 Covid-19; this also undermines the imminence of the threat to him.

21 Plaintiff also fails to show irreparable injury that is both likely and imminent with regard to

22 his request for a TRO prohibiting his transfer until a vaccine is developed. There is no evidence

23 that prison officials are contemplating transferring him to another prison in the near future. He

24 alleges that he is at Pelican Bay serving a SHU term that will expire in mid-August, three months

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2011). Under the “sliding scale” approach used in the Ninth Circuit – also dubbed the “serious

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question” test in Alliance for Wild Rockies -- “the elements of the preliminary injunction test are

balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id.

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at 1131. Thus, even after Winter, “‘serious questions going to the merits’ and a hardship balance

1 from now. In three months, the Covid-19 situation likely will be quite different from today: Pelican

2 Bay may be devoid of Covid-19 cases or it may be overrun with them. Plaintiff does not show that

3 he will suffer irreparable harm if the interim relief is not granted.

4 Finally, even if the foregoing problems did not exist, plaintiff does not show the need for a

5 TRO without any notice to the defendants, who have not yet been served with process in this action.

6 Federal Rule of Civil Procedure 65(b)(1) provides that a TRO can issue without notice to adverse

7 party only if “specific facts in an affidavit or a verified complaint clearly show that immediate and

8 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

9 in opposition” and the movant certifies in writing the efforts to give notice and the reasons why

10 notice should not be required. These stringent requirements “reflect the fact that our entire

11 jurisprudence runs counter to the notion of court action taken before reasonable notice and an

12 opportunity to be heard has been granted both sides of a dispute.” Granny Goose, 415 U.S. at 423.

13 Plaintiff does not show that immediate and irreparable injury will occur if the court does not act

14 before allowing defendants to be heard, nor does he provide any information about his efforts to

15 give notice to defendants. His failure to satisfy Rule 65(b)(1) is fatal to his ex parte motion.

16 For the foregoing reasons, plaintiff’s ex parte motion for a TRO or injunction is DENIED.

17 Docket No. 2.

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19 C. Motion For Appointment Of Counsel

20 Plaintiff has moved for appointment of counsel to represent him in this action. A district

21 court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent

22 civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

23 Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the ability

24 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

25 See id. Neither of these factors is dispositive and both must be viewed together before deciding on

26 a request for counsel under § 1915(e)(1). Exceptional circumstances are not present. There appears

27 to be a low likelihood of success on the merits, given the novelty of the medical issue and the mental

1 claim pro se. The motion for appointment of counsel is DENIED. Docket No. 4.

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3 CONCLUSION

4 The complaint is dismissed with leave to amend. Plaintiff must file an amended complaint

5 || that complies with the directions in this order no later than June 29, 2020. He must include the

6 || caption and civil case number used in this order and the words AMENDED COMPLAINT on the

7 || first page of that document. Plaintiff is cautioned that his amended complaint must be a complete

8 statement of his claims. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc)

9 (‘For claims dismissed with prejudice and without leave to amend, we will not require that they be

10 || repled in a subsequent amended complaint to preserve them for appeal. But for any claims

11 voluntarily dismissed, we will consider those claims to be waived if not repled.”) Failure to file the

12 amended complaint by the deadline will result in the dismissal of this action.

5 13 Plaintiff's motion for a TRO or injunction is DENIED. Docket No. 2.

14 Plaintiff's motion for appointment of counsel to represent him is DENIED. Docket No. 4.

3 15 IT IS SO ORDERED.

a 16 || Dated: May 19, 2020 Site WU tee

8 SUSAN ILLSTON.

United States District Judge

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