Watson v. Allison

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 RHONE WATSON, Case No. 5:22-cv-04522 EJD

8 Plaintiff,

ORDER OF SERVICE

v.

9

10 CDCR, et al.,

Defendants.

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13 Plaintiff, an inmate at San Quentin State Prison (SQSP) proceeding pro se, filed an action

14 pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his rights under the Eighth

15 Amendment by transferring over 100 inmates, some of whom were infected with COVID-19, from

16 the California Institution for Men (CIM) to SQSP in May 2020. Plaintiff’s complaint (ECF No. 1)

17 is before the Court for screening pursuant to 28 U.S.C. § 1915A. Plaintiff will be granted leave to

18 proceed in forma pauperis in a separate order.

19 STANDARD OF REVIEW

20 Federal courts must engage in a preliminary screening of cases in which prisoners seek

21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

22 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of

23 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

24 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id.

25 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901

26 F.2d 696, 699 (9th Cir. 1990).

27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

1 statement need only give the defendant fair notice of what the . . . claim is and the grounds upon

2 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to

3 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to

4 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a

5 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must

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

7 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to

8 state a claim for relief that is plausible on its face.” Id. at 1974.

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

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

11 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

12 42, 48 (1988).

13 If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to

14 amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to deny leave

15 to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated

16 failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing

17 party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v.

18 BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).

19 LEGAL CLAIMS

20 Plaintiff names the following Defendants:

21 1. CDCR

22 2. CCHCS

23 3. San Quentin State Prison

24 4. CIM

25 5. K. Allison

26 6. R. Diaz

27 7. R. Tharratt

1 9. R. Broomfield

2 10. M. Houston

3 11. C. Cryer

4 12. A Pachynski

5 13. S. Garrigan,

6 14. K. Torres

7 15. M. Farooq

8 16. L. Escobell

9 17. J. Bick

10 18. D. Borders

11 By way of factual allegations, Plaintiff refers the Court to the pages 3-5 of the “factual

12 background from Case 3:22-mc-80066-WHO Document 59 filed 7-15-22.” ECF No. 1 at 2. The

13 factual background in the order by Judge William H. Orrick that Plaintiff identifies is as follows:

14 As generally alleged in the Represented Cases, on March 4, 2020, California

Governor Gavin Newsom proclaimed a State of Emergency in California because

15 of the impacts of the COVID-19 pandemic. Plaintiffs contend that all defendants

were aware by this time that the virus was highly transmissible and that precautions

16 necessary to mitigate its spread included quarantining people exposed to the virus,

rigorous cleaning and sanitation practices, social distancing, use of masks and other

17 personal protective equipment, and regular testing. They assert that defendants

were aware that many of these precautions could not be effectively practiced at

18 SQSP because of its infrastructure, including mostly open-air cells and poor

ventilation.

19

A shelter-in-place order was enacted on March 16 in Marin County, where SQSP is

20 located, followed by a statewide order on March 19. On March 18, the Interim

Executive Director of the Habeas Corpus Resource Center, the State Public

21 Defender, MaryMcComb, and others responsible for representing people on death

row sent a letter to defendants Broomfield and Pachynski. The letter implored

22 SQSP to provide inmates with PPE and cleaning supplies and to allow for social

distancing, and to enact other policies to protect the health of inmates and staff.

23

On March 24, Governor Newsom issued Executive Order N-36-20, suspending

24 intake of inmates into all state facilities for 30 days, which he subsequently

extended. Yet in May 2020, defendants decided to transfer 122 prisoners from

25 CIM, where there was a COVID-19 outbreak, to SQSP, which had no COVID-19

cases at the time.

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Plaintiffs allege that California Correctional Health Care Services (CCHCS) and

27 CDCR executives did not inform CIM staff of the transfer until the day before the

which other defendants were aware. Prisoners were not screened for symptoms

1 before boarding the transfer buses. On May 30, 2020, defendants filled the buses

with prisoners without providing space for distancing. Immediately after the

2 transfer, 15 transferred prisoners tested positive for COVID-19. Defendants

housed the transferred prisoners in the open-air Badger housing unit at SQSP; the

3 transferred prisoners used the same showers and dining area as other prisoners.

4 Although the Marin County Public Health Officer spoke with some defendants on

June 1, 2020, and recommended that transferred prisoners be immediately

5 sequestered from the rest of the population, masking be enforced, and movement of

staff be limited, defendants failed to follow his recommendations. Defendants only

6 heeded his recommendation to appoint an incident commander with expertise in

outbreak management on July 3, after the Marin County Board of Supervisors

7 became involved.

8 Within three weeks of transfer, SQSP had a COVID-19 outbreak: It had more than

499 confirmed cases.

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On June 13, 2020, a group of health experts toured San Quentin at the request of

10 the Receiver. Plaintiffs allege that the experts circulated an “Urgent Memo” on

June 15, 2020, of which defendants were aware, warning of the scale that the

11 COVID-19 outbreak at San Quentin could reach and warning that testing delays of

5-6 days were unacceptable. The experts also advised against using punishment-

12 like quarantine conditions, which could result in under-reporting of symptoms, and

recommended a release or transfer of prisoners. Defendants disregarded these

13 recommendations.

14 California legislators, the Office of the Inspector General (OIG), and the Division

of Occupational Safety and Health (Cal-OSHA) criticized CDCR’s conduct in

15 causing or failing to mitigate the outbreak. One California Assembly member

criticized the transfer as the “worst prison health screw up in state history.” On

16 July 6, 2020, Governor Newsom said the prisoners “should not have been

transferred.” The OIG found that CDCR and CCHCS caused a public health

17 disaster. Cal-OSHA cited CDCR and SQSP with 14 violations related to the

outbreak.

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Plaintiffs allege that, as a result of the outbreak, they became ill and some died

19 from COVID-19. Plaintiffs bring various federal and state claims.

20 Case No. 3:22-mc-80066-WHO, ECF No. 59 at 3-5 (Footnotes omitted).

21 Plaintiff also identifies “John Doe 1-400” as additional plaintiffs. ECF No. 1 at 2. He

22 seeks “10,000,00 million dollars or release.” Id. at 3.

23 ANALYSIS

24 A. Doe Plaintiffs

25 As Plaintiff is proceeding pro se, he “has no authority to appear as an attorney for others

26 than himself.” C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987). He

27 therefore cannot represent John Does 1-400. These unnamed Plaintiffs will be DISMISSED.

1 B. Eighth Amendment Claim

2 The allegations regarding the May 2020 transfer of CIM inmates into SQSP state

3 cognizable Eighth Amendment claims against all Defendants. Farmer v. Brennan, 511 U.S. 825,

4 837 (1994) (prison official is deliberately indifferent if he or she knows that prisoner faces

5 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate

6 it).

7 C. Defendant Tharratt

8 The Court understands, as the Attorney General has represented to another court in this

9 district, that “[t]o the best of [the Attorney General’s] knowledge, [Dr.] Tharratt died on August

10 20, 2020.” See Case No. 3:20-cv-07845-CRB, Dkt. No. 37, 37-1. The Court takes judicial notice

11 pursuant to Federal Rule of Evidence 201 of the filing in that case, which attaches Dr. Tharratt’s

12 obituary published on the California Department of Corrections and Rehabilitation website on

13 October 6, 2020, available at https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt-

14 longtime-cchcs-medical-director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

15 442 F.3d 741, 746 n.6 (9th Cir. 2006) (federal courts “may take judicial notice of court filings and

16 other matters of public record”); Bullock v. Johnson, No. CV 15-2070 PA (AS), 2018 WL

17 5880736, at *13 n.19 (C.D. Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15-

18 2070 PA (AS), 2018 WL 4791089 (C.D. Cal. Oct. 3, 2018) (taking judicial notice of CDCR

19 obituary).

20 Dr. Tharratt’s death therefore preceded the filing of this action on August 5, 2022. “[A]

21 party cannot maintain a suit on behalf of, or against, or join, a dead person, or in any other way

22 make a dead person (in that person’s own right, and not through a properly represented estate or

23 successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d

24 943, 955 (9th Cir. 2020). Dr. Tharratt was therefore not an appropriately named Defendant at the

25 onset of this litigation and will be DISMISSED.

26 CONCLUSION

27 For the foregoing reasons, the Court orders as follows:

1 2. Defendant Tharratt is DISMISSED.

2 3. The Court ORDERS that service on the following Defendants shall proceed under

3 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for

4 civil rights cases from prisoners in the CDCR’s custody:

5 1. CDCR

6 2. CCHCS

7 3. San Quentin State Prison

8 4. CIM

9 5. K. Allison

10 6. R. Diaz

11 7. R. Davis

12 8. R. Broomfield

13 9. M. Houston

14 10. C. Cryer

15 11. A Pachynski

16 12. S. Garrigan,

17 13. K. Torres

18 14. M. Farooq

19 15. L. Escobell

20 16. J. Bick

21 17. D. Borders

22 In accordance with the program, the Clerk is directed to serve on the CDCR via email the

23 following documents: The operative complaint (ECF No. 1), this Order of Service, a CDCR

24 Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order

25 on the Plaintiff.

26 No later than 40 days after service of this order via email on the CDCR, the CDCR shall

27 provide the court a completed CDCR Report of E-Service Waiver advising the court which

1 the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR

2 also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney

3 General’s Office which, within 21 days, shall file with the Court a waiver of service of process for

4 the defendant(s) who are waiving service.

5 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each

6 defendant who has not waived service according to the CDCR Report of E-Service Waiver a

7 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies

8 of this order, the summons and the operative complaint for service upon each defendant who has

9 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E-

10 Service Waiver.

11 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

12 requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

13 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on

14 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the

15 cost of such service unless good cause can be shown for their failure to sign and return the waiver

16 form.

17 5. This Court will issue a scheduling order for summary judgment or other dispositive

18 motion briefing after resolution of the common issues in the 22-mc-80066-WHO matter. See ECF

19 No. 8.

20 6. All communications by Plaintiff with the Court must be served on Defendants’

21 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard

22 any document which a party files but fails to send a copy of to his opponent. Until Defendants’

23 counsel has been designated, Plaintiff may mail a true copy of the document directly to

24 Defendants, but once Defendants are represented by counsel, all documents must be mailed to

25 counsel rather than directly to Defendants.

26 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

27 Court informed of any change of address and must comply with the Court’s orders in a timely

] to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

2 || pending case every time he is moved to a new facility.

3 8. Any motion for an extension of time must be filed no later than the deadline sought

4 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that

5 || he must include the case name and case number for this case on any document he submits to the

6 || Court for consideration in this case.

7 IT IS SO ORDERED.

8 || Dated: September 16, 2022

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EDWARD J. DAVILA

United States District Judge

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