Munoz v. Gipson

1

2

3

4

5 UNITED STATES DISTRICT COURT

6 NORTHERN DISTRICT OF CALIFORNIA

7

8 ABRAHAM DIONICIO MUÑOZ, Case No. 21-cv-07176-AMO (PR)

9 Plaintiff, ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT

v.

10

Re: Dkt. Nos. 24, 25

11 CONNIE GIPSON, et al.,

Defendants.

12

13 Before the Court is the motion for summary judgment under Federal Rule of Civil

14 Procedure 56 filed by Defendants Kern Valley State Prison (“KVSP”) Correctional Counselor II

15 A. Geary, KVSP Correctional Counselor I T. Yonder, KVSP Captain C. Gutierrez, KVSP

16 Associate Warden S. Swaim, Pelican Bay State Prison (“PBSP”) Licensed Vocational Nurses

17 (“LVNs”) J. Walker-Baker, C. Van Horn, S. Whiteman, and G. Diehl, and PBSP Correctional

18 Officers M. Runge, K. Trimm, T. Dimmick, and R. Little on the grounds that: (1) Plaintiff

19 Abraham Dionicio Muñoz failed to properly exhaust available administrative remedies as to the

20 Eighth Amendment claim against the KVSP Defendants before filing suit, as required by the

21 Prison Litigation Reform Act (“PLRA”)1; (2) there is no genuine dispute of material facts to

22 support Muñoz’s Eighth Amendment claims for deliberate indifference to his health and safety;

23 and (3) they are entitled to qualified immunity. Dkt. 24.2

24

25

1 The Court notes that the Defendants do not dispute that Muñoz exhausted administrative

remedies for his claims against the PBSP Defendants (Dimmick, Whiteman, Van Horn, Diehl,

26

Runge, Little, Walker-Baker and Trimm), alleging they were deliberately indifferent to his health

and safety for exposing him to COVID-19. Dkt. 24 at 3 fn. 2.

27

I. FACTUAL BACKGROUND

1

A. Muñoz’s Eighth Amendment Claims

2

On September 16, 2021, Muñoz, a former prisoner who has since been discharged from

3

parole, filed a pro se complaint under 42 U.S.C. § 1983 alleging Eighth Amendment claims

4

stemming from his previous incarcerations at KVSP and PBSP. Dkt. 1. Muñoz sues all of the

5

named defendants in their individual and official capacities. Id. at 6. He seeks the following:

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$250,000.00 in compensatory damages and $50,000.00 in punitive damages from each defendant;

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declaratory judgment that his federal constitutional rights have been violated; and costs. Id. at 17.3

8

1. Muñoz’s Version

9

The Court summarizes Muñoz’s allegations in his complaint by taking the following from

10

Judge Tigar’s May 12, 2022 service order:

11

Sometime in 2020, while housed at KVSP, Plaintiff submitted a

12 grievance requesting release pursuant to California Governor

Newsom’s emergency order requiring defendants Diaz and Kelso to

13 release inmates who ar[e] non-violent and fit certain criteria for

release under Cal. Gov’t Code § 8658. In response, on June 18, 2020,

14 a KVSP classification committee composed of defendants Geary,

Yonder, Gutierrez, and Swain approved Plaintiff’s transfer to PBSP.

15 On September 16, 2020, Plaintiff was transferred to PBSP.

16 During the relevant time period, orders issued in Plata v. Newsom

required prison officials to put all prison transfers on hold; require all

17 staff to wear personal protective equipment; implement social

distancing of six feet apart; have all COVID-positive personnel stay

18 home; and prevent unsanitary conditions that increased the risk of

contracting of COVID-19.

19

On October 28, 2020, Plaintiff was housed in the administrative

20 segregation unit (“ASU”) pending a transfer to the general population

yard at either PBSP or another institution. The front portion of the

21 cells in [sic] are honeycomb perforated metal that permit officers to

view the cell interior. Plaintiff was not given any cleaning supplies

22 to sanitize his cell.

23 During the relevant time period, defendants Little and Andruid would

conduct security walks of the ASU without wearing any personal

24 protective equipment, such as face masks, gowns or gloves.

Defendants Little and Andruid further exposed Plaintiff to COVID by

25 refusing to permit the unit to be sanitized in accordance with Plata

guidelines.

26

27

During the relevant time period, Plaintiff was enrolled in the Medical

1 Assistance Treatment Program, through which he receives narcotic

medication daily in the following manner. He is given narcotic

2 medication which he must place on his tongue. He must leave his

mouth open for approximately two minutes so that prison staff,

3 standing a foot or two away, can watch to see if the medication has

dissolved. The nurses administering the medication during the

4 relevant time period were defendants Whiteman, Afadho, Diehl,

Vaught, Walker-Baker, and Van Horn, and the correctional officers

5 supervising the medication distribution or escorting the nurses were

defendants Sanchez, Runge, and Colson. Neither the nurses nor the

6 correctional officers supervising the medication distribution wore

PPE4 medical equipment, i.e., masks, during the medication

7 distribution.

8 Between November 10-15, 2020, Plaintiff lost his sense of taste and

smell. Plaintiff informed a[n] LVN of this loss of taste and smell. On

9 or about November 23, 2020, Plaintiff was informed that he had tested

positive for COVID-19 and was quarantined. None of the four other

10 inmates that lived in Plaintiff’s pod tested positive for COVID-19.

Plaintiff suffered the following COVID 19 symptoms: headaches,

11 chills sweats, loss of smell and taste, nausea, sore throat, fatigue, dry

cough, loss of appetite, shortness of breath, dizziness, vomiting, runny

12 nose, muscle pain, insomnia, diarrhea, and weight loss. Plaintiff was

at risk from dying from COVID-19 because he is 51 years old and

13 because he has hepatitis C type (A-B), achalasia, and mental health

issues due to depression. From November 30, 2020, to February 24,

14 2021, Plaintiff made multiple requests to be seen by a doctor to treat

these symptoms, but his requests were ignored by defendant LVN

15 Nassar. In response to his requests, defendant Nassar sent defendants

correctional officers Lofton, Dimmick, Trimm and Runge to escort

16 Plaintiff to her office. Defendants Lofton, Dimmick, Trimm and

Runge failed to sanitize the waist[]chains or wear their PPE protective

17 gear when escorting Plaintiff. Defendant Nassar told Plaintiff that he

did not need to see a doctor for his COVID symptoms, stating she had

18 COVID, as did defendants Lofton, Dimmick, Trimm and Runge, and

that none of them required medical attention. Defendant Nassar also

19 stated that it was unnecessary for her to wear a mask because she had

COVID.

20

Plaintiff later learned that defendants Vaught, Afadho, Walker-Baker,

21 Van Horn, Whiteman, Diehl, Colson, Runge, Lofton, Trimm,

Dimmick, Sanchez, Little, and Andruid all tested positive for

22 COVID-19.

23 Plaintiff alleges that he was illegally exposed to COVID-19 when

defendants Yonder, Geary, Gutierrez, and Swaim transferred him

24 from KVSP to PBSP despite a COVID outbreak at PBSP and a

prohibition on prison transfers per Plata; and when defendants Little,

25 Andruid, Whiteman, Afadho, Diehl, Vaught, Walker-Baker, Van

Horn, Sanchez, Runge, Colson, Lofton, Dimmick, and Trimm failed

26 to wear their PPE protection and maintain social distancing, and came

to work while COVID-positive in violation of the [California

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Department of Corrections and Rehabilitations’ (“CDCR’s”)] own

1 guidelines. Plaintiff further alleges that defendant Nassar violated his

Eighth Amendment right to be free from deliberate indifference to his

2 serious medical needs when she refused to refer him to a doctor for

his COVID-19 symptoms.

3

4 Dkt. 10 at 2-4 (footnote added).

5 Muñoz does not recall having any encounters with Defendant Diehl, and Muñoz does not

6 know what Diehl looks like. Muñoz’s Dep. at 61. Muñoz’s only encounters with Defendant

7 Dimmick happened after Muñoz had been quarantined with COVID-19. Dkt. 1 at 8-9.

8 2. Defendants’ Version

9 a. The KVSP Defendants (Gutierrez, Swaim, Geary, and Yoder)

10 A KVSP classification committee referred Muñoz to transfer from KVSP to another

11 institution on June 18, 2020. Dkt. 1 at 6; Swaim Decl. ¶ 2, Ex.. A. Defendants Gutierrez, Swaim

12 and Geary were members of the classification committee. Swaim Decl. ¶ 2, Ex. A. Defendant

13 Yoder was not. Id.

14 The June 18, 2020 classification committee hearing only referred Muñoz for transfer to

15 another institution because of safety concerns expressed by Muñoz that he would be attacked by

16 other inmates at KVSP, and did not actually transfer Muñoz at that time. Swaim Decl. ¶¶ 2-3, Ex.

17 A. The classification committee hearing did not address factors and details pertaining to the

18 physical transport of Muñoz from one institution to another, such as conditions arising from the

19 COVID-19 pandemic. Swaim Decl. ¶ 3. These factors were addressed by others, after the

20 committee had referred Muñoz to be transferred, and after prison staff determined to which prison

21 Muñoz would be transferred. Id. At the time of the hearing, Defendant Swaim assumed that

22 appropriate steps would be taken to ensure that Muñoz would be safely transferred. Id.

23 On September 16, 2020, prison staff transferred Muñoz from KVSP to PBSP. Dkt. 1 at 6-

24 7. Muñoz contracted COVID-19 on or about November 20, 2020. Id. at 8.

25 b. The PBSP Defendants (Dimmick, Whiteman, Van Horn, Diehl,

Runge, Little, Walker-Baker, and Trimm)

26

27 Within the C Facility at PBSP, where Muñoz was housed from October 28 to November

1 Decls. ¶ 2. There were approximately twenty-four inmates in each unit, with each unit containing

2 six pods, and the inmates were housed in cells within the pods. Id. For the medication

3 distributions, the units were accessed by way of a “roundabout” that went from the entry/exit gate

4 inside the building, through each unit, and circling back to the starting location at the building

5 entry/exit gate. Id. When and as required by PBSP protocols and procedures, PPE for staff

6 involved in the medication distributions was kept in the first unit, donned for the medication

7 distribution trip through each unit via the roundabout, and removed at the same location when the

8 route had been completed, before staff exited the building. Id. The PPE required had been pre-

9 placed for staff to use, including some or all of a mask or face shield, gloves, and smock/gown.

10 Id. Signs were posted at the location, indicating what equipment was to be used by staff. Id.

11 Defendants Diehl, Whiteman, Walker-Baker, and Van Horn claim that at all times they used the

12 equipment that was so provided, in accordance with the signage. Id. Though they were not

13 involved in distributing medication to Muñoz, Defendant Trimm (who escorted inmates and

14 medical staff who were distributing medication), as well as Defendants Little and Dimmick also

15 complied with the institution’s requirements for wearing PPE at all times. Trimm Decl. ¶ 2; Little

16 Decl. ¶ 3; Dimmick Decl. ¶ 3.

17 To receive their medication, inmates would exit their cells and come to the door of the pod.

18 Diehl, Whiteman, Walker-Baker, Van Horn and Trimm Decls. ¶ 3. The pods had a door that was

19 “honeycomb” type perforated metal, which allowed for visual access, and a tray slot. Id. The

20 directed procedure for the medication distribution was that the inmate would stand on one side of

21 the pod door, and staff distributing the medication would stand on the other side of the door. Id.

22 The medication would then be passed to the inmate through the tray slot in the door. Id. Certain

23 medications required staff to visually observe and confirm that an inmate had consumed it after

24 the inmate had placed it in his mouth. Id. To do so, the PBSP protocol and procedure was for the

25 staff member to stand approximately one and a half arm-lengths away from the inmate, and

26 observe the inmate’s mouth as open and empty through the perforated door. Id. Defendants

27 Diehl, Whiteman, Walker-Baker, Van Horn and Trimm claim that they complied with these

1 From October 28 through November 23, 2020, the PBSP Defendants were required to test

2 for COVID-19 weekly and biweekly. Diehl, Van Horn, Whiteman, Trimm and Walker-Baker

3 Decls. ¶ 5; Dimmick Decl. ¶ 2; Little Decl. ¶¶ 1-2. Staff who tested positive were not permitted to

4 work, until later testing negative. Id. During this time, Defendants Diehl, Dimmick, Van Horn,

5 Walker-Baker, Trimm and Little tested negative. Id. Defendant Runge tested positive on October

6 29, 2020, and because of that he did not work from then until November 12, 2020, at which time

7 he tested negative. Runge Decl. ¶ 3. Defendant Whiteman tested positive on November 19, 2020,

8 and did not work from that date through November 28, 2020. Whiteman Decl. ¶ 5.

9 Defendant Runge claims that he did not work in C-Facility while Muñoz was housed there.

10 Runge Decl. ¶ 2; Muñoz’s Dep. (Mathison Decl. Ex. B) at 63. Defendant Runge did not enter the

11 facility during that time, and thus he had no physical encounters with Muñoz. Id.

12 Defendant Diehl does not recall encountering Muñoz. Diehl Decl. ¶ 5.Defendant Dimmick

13 does not recall encountering Muñoz. Dimmick Decl. ¶ 4.

14 c. Defendants’ Request for Judicial Notice

15 Defendants have filed a request for the Court to take judicial notice of the following three

16 exhibits:

(1) Governor Newsom’s Executive Order of March 4, 2020,

17 declaring a State of Emergency due to COVID-19, a copy of

which is published on the Office of Governor Gavin Newsom

18 website at https://www.gov.ca.gov/2020/03/04/governor-

newsom-declares-state-of-emergency-to-help-state-prepare-for-

19 broader-spread-of-covid-19/;

20 (2) Centers for Disease Control and Prevention, COVID-19 Science

Update, published at

21 https://www.cdc.gov/library/covid19/scienceupdates.html?Sort=

Date%3A%3Adesc (Nov. 12, 2021); and

22

(3) U.C. Davis Health, COVID-19 Information continues to evolve:

23 what’s new and what has changed, published at

https://health.ucdavis.edu/health-news/newsroom/covid-19-

24 information-continues-to-evolve-whats-new-and-what-has-

changed/2020/08 (Aug. 26, 2020).

25

26 Dkt. 25 at 1-2. This request is GRANTED because these documents are not subject to reasonable

27 dispute and are relevant to the claims in the case. See City of Sausalito v. O’Neill, 386 F.3d 1186,

1 reasonable dispute.”). Exhibits 1-3 are all generally known within this Court’s territorial

2 jurisdiction, and they reflect information that is “capable of accurate and ready determination by

3 resort to sources whose accuracy cannot reasonably be questioned.” Jespersen v. Harrah’s

4 Operating Co., Inc., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (citing Fed. R. Evid. 201).

5 B. Muñoz’s Efforts to Exhaust His Administrative Remedies

6 Muñoz submitted eight administrative health care grievances from the time he was

7 approved by the KVSP Defendants to be transferred to another prison on June 18, 2020, and the

8 time he filed the present lawsuit on September 16, 2021. Gates Decl. ¶ 9, Ex. A. In three of these

9 grievances, Muñoz requested an early release from prison because of the COVID-19 pandemic.

10 Id. at ¶ 10 (a)-(c), Exs. B-D. In the fourth grievance, Muñoz complained that he was exposed to

11 COVID-19 by PBSP medical and custody staff.5 Id. at ¶ 10(d), Ex. E. According to Chief of the

12 Health Care Correspondence and Appeals Branch (“HCCAB”) S. Gates, “there is no record of

13 [Muñoz] submitting any grievance regarding a claim that he was transferred from [KVSP] to

14 another institution when it was improper or unsafe to do so because of the COVID-19 pandemic,

15 or for any other reason.” Id. at ¶ 9.

16 Office of Appeals (“OOA”) Associate Director Howard E. Moseley states that he did a

17 search for “all non-health care related appeals received by the OOA on or after June 1, 2020,” and

18 he claims that the resulting Offender Appeals Report shows that Muñoz submitted multiple

19 grievances that were “screened in or screened out . . . .” Moseley Decl. ¶ 7, Ex.. A. Associate

20 Director Moseley further explains:

21 A search was also conducted of the OOA computer system for all non-

health care related appeals received by the OOA from Plaintiff

22 between June 18, 2020, and September 16, 2021, which alleged that

Plaintiff was transferred from [KVSP] to another CDCR institution

23 when it was improper or unsafe for Plaintiff to be transferred. No

appeals were received by the OOA from Plaintiff during this time

24 period containing such an allegation.

25 Id. at ¶ 8.

26

27

5 As mentioned above, Defendants do not dispute that Muñoz exhausted his administrative

II. PROCEDURAL BACKGROUND

1

On May 12, 2022, Judge Tigar screened the complaint, dismissed certain claims and

2

defendants with leave to amend, found that the complaint stated cognizable Eighth Amendment

3

claims of deliberate indifference to Muñoz’s health and safety against the remaining defendants,

4

and ordered service on the Defendants presently before the Court. Dkt. 10 at 5-7. The May 12

5

Order found that:

6

[t]he complaint states cognizable Eighth Amendment claims against

7 defendants Yonder, Geary, Gutierrez, Swaim, Andruid, Little,

Whiteman, Afadho, Diehl, Vaught, Walker Baker, Van Horn,

8 Sanchez, Runge, and Colson. Specifically, the allegation that

defendants Yonder, Geary, Gutierrez, and Swaim transferred Plaintiff

9 from KVSP to PBSP when PBSP had an outbreak of infections and

prison transfers had been stopped under Plata states a cognizable

10 Eighth Amendment claim for deliberate indifference to inmate safety.

See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (Eighth

11 Amendment requires that prison officials take reasonable measures to

protect inmates from dangerous conditions at prison). The allegations

12 that, prior to Plaintiff contracting COVID in early November 2020,

defendants Andruid and Little refused to allow Plaintiff to sanitize his

13 cell; and defendants Andruid, Little, Whiteman, Afadho, Diehl,

Vaught, Walker Baker, Van Horn, Sanchez, Runge, and Colson failed

14 to wear masks or social distance when conducting security walks and

when supervising the administration of Plaintiff’s medication because

15 it exposed Plaintiff to contracting COVID state cognizable Eighth

Amendment claims for deliberate indifference to inmate safety.

16

The complaint states a cognizable Eighth Amendment claim against

17 defendants Lofton, Dimmick, Trimm, and Runge. Although Plaintiff

had already contracted COVID in early November 2020, the

18 allegation that defendants Lofton, Dimmick, Trimm and Runge failed

to wear masks and failed to sanitize the waist[]chains nonetheless

19 states a cognizable Eighth Amendment claim for deliberate

indifference to inmate safety and for deliberate indifference to

20 Plaintiff’s serious medical needs.

21 Dkt. 10 at 5.

22 Defendants Geary, Yonder, Gutierrez, Swaim, Walker-Baker, Van Horn, Whiteman, Diehl,

23 Runge, Trimm, Dimmick, and Little (“Defendants”) appeared in this action and waived service on

24 July 6, 2022.6 Dkt. 13.

25 Defendants move for summary judgment under Federal Rule of Civil Procedure 56 on

26

6 On June 15, 2022, the CDCR notified Judge Tigar that they could not identify the following

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defendants: PBSP Correctional Officers Andruid, Afadho, Vaught, Sanchez, Lofton, and Colson.

1 grounds that Muñoz failed to properly exhaust available administrative remedies before filing suit

2 against the KVSP defendants, as required by the PLRA. Dkt. 24. Defendants also move for

3 summary judgment on the grounds that there is no genuine dispute of material facts to support

4 Muñoz’s Eighth Amendment claims, and they are entitled to qualified immunity. See id. While

5 Muñoz was given the opportunity to file an opposition, he did not do so. As mentioned above, this

6 action was then reassigned to the undersigned judge. Dkt. 27.

7 For the reasons outlined below, the Court GRANTS Defendants’ motion for summary

8 judgment. The Court also DISMISSES all official capacity claims, punitive damages claims, and

9 claims against any remaining defendants against whom Muñoz has failed to amend his claims.

10 III. DISCUSSION

11 A. DISMISSAL OF CERTAIN CLAIMS

12 1. Official Capacity

13 Prior to considering the pending motion for summary judgment, the Court finds that

14 Muñoz’s claims for monetary damages against all named defendants in their official capacities are

15 barred by the Eleventh Amendment.

16 The Eleventh Amendment to the United States Constitution bars from the federal courts

17 suits against a state by its own citizens, citizens of another state, or citizens or subjects of any

18 foreign state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985) abrogated on other

19 grounds as noted in Lane v. Pena, 518 U.S. 187, 198 (1996). Unless a state has waived its

20 Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued regardless of

21 the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Eleventh Amendment

22 immunity extends to suits against a state agency, Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752

23 (9th Cir. 2009) (CDCR and California Board of Prison Terms entitled to Eleventh Amendment

24 immunity), and to suits for damages against state officials sued in their official capacities,

25 Kentucky v. Graham, 473 U.S. 159, 169-70 (1985). California has not waived its Eleventh

26 Amendment immunity with respect to claims brought under Section 1983 in federal court.

27 Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). Therefore, because the CDCR is a

1 from suit for monetary damages.

2 Accordingly, Muñoz’s claims for monetary damages against all Defendants in their official

3 capacities are DISMISSED as barred by the Eleventh Amendment.7 Because it is clear that this

4 jurisdictional bar cannot be cured by further amendment to the complaint, such a dismissal is

5 without leave to amend.

6 2. Failure to Amend

7 On May 12, 2022, Judge Tigar dismissed certain Eighth Amendment claims with leave to

8 amend to provide Muñoz one final opportunity to cure the deficiencies indicated in the May 12,

9 2022 Order within “twenty-eight (28) days” against PBSP LVN Nassar, KVSP Warden Pfeiffer,

10 PBSP Warden Jim Robertson, PBSP Healthcare CEO Woods, and the following CDCR officials:

11 Director Connie Gipson; Secretary Ralph Diaz; and Healthcare Receiver Clark Kelso. Dkt. 10 at

12 9. Specifically, the Court dismissed with leave to amend Muñoz’s Eighth Amendment claims

13 against Defendant Nassar for refusing to refer Muñoz to a doctor for his COVID-19 symptoms,

14 and against Defendants Pfeiffer, Robertson, Woods, Gipson, Diaz, and Kelso based on

15 supervisorial liability. Id. at 5-7. The May 12, 2022 Order warned Muñoz that the failure to file a

16 proper amended complaint within the designated time will result in the following:

17 dismissal of defendants Nassar, Gipson, Diaz, Kelso, Pfeiffer,

Robertson, and Woods from this action without further notice to

18 Plaintiff; the complaint docketed at ECF No. 1 remaining the

operative complaint; and this action proceeding solely on the Eighth

19 Amendment claims against defendants Yonder, Geary, Gutierrez,

Swaim, Andruid, Little, Whiteman, Afadho, Diehl, Vaught, Walker-

20 Baker, Van Horn, Sanchez, [Dimmick, Trimm, Lofton,] Runge, and

Colson found cognizable above.

21

Id.

22

The twenty-eight-day deadline has passed, and Muñoz has neither filed an amended

23

complaint nor sought an extension of time to do so. Accordingly, the Court rules as follows:

24

(1) Muñoz’s claims again Defendants Nassar, Pfeiffer, Robertson, Woods, Gipson, Diaz, and

25

Kelso are DISMISSED; (2) the initial complaint (Dkt. 1) remains the operative complaint; and

26

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1 (3) this action shall proceed in accordance with the May 12, 2022 Order.

2 3. Punitive Damages

3 Additionally, the Court finds it necessary to dismiss Muñoz’s claims for punitive damages,

4 as punitive damages may be awarded in a section 1983 suit only “when the defendant’s conduct is

5 shown to be motivated by evil motive or intent, or when it involves reckless or callous

6 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).

7 There is no evidence before the Court that any of the Defendants’ alleged wrongdoing rose to this

8 requisite high level of culpability. Accordingly, Muñoz’s claims for punitive damages are

9 DISMISSED.

10 B. MOTION FOR SUMMARY JUDGMENT

11 1. Legal Standard for Summary Judgment

12 Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment

13 on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The

14 court shall grant summary judgment if the movant shows that there is no genuine dispute as to any

15 material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v.

16 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of

17 establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.

18 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in

19 the record”). If the moving party meets this initial burden, the burden then shifts to the non-

20 moving party to present specific facts showing that there is a genuine issue for trial. See Celotex,

21 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87

22 (1986). The court is only concerned with disputes over material facts and “[f]actual disputes that

23 are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. The nonmoving

24 party has the burden of identifying, with reasonable particularity, the evidence that precludes

25 summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). It is not the court’s

26 task to scour the record in search of a genuine issue of triable fact. Id. If the nonmoving party

27 fails to make the requisite showing, “the moving party is entitled to a judgment as a matter of

1 A district court may consider only admissible evidence in ruling on a motion for summary

2 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

3 In support of the motion for summary judgment, Defendants have presented declarations from the

4 following: their attorney, Deputy Attorney General James Dahl Mathison; Defendants Diehl,

5 Dimmick, Little, Runge, Swaim, Trimm, Van Horn, Walker-Baker and Whiteman; OOA

6 Associate Director Moseley; and HCCAB Chief Gates. Dkts. 24-1 – 24-12.

7 Muñoz did not file an opposition to the motion for summary judgement. However,

8 because he filed a verified complaint, Dkt. 1, the Court can and will construe it as an affidavit

9 under Federal Rule of Civil Procedure 56, insofar as it is based on personal knowledge and sets

10 forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 &

11 nn.10-11 (9th Cir. 1995).

12 Defendants seek summary judgment on the following grounds: (1) Muñoz failed to exhaust

13 his administrative remedies as to his Eighth Amendment claim against the KVSP Defendants;

14 (2) there is no genuine dispute of material facts to support Muñoz’s Eighth Amendment claims for

15 deliberate indifference to his health and safety against the PBSP Defendants; and (3) they are

16 entitled to qualified immunity. See Dkt. 24. Ultimately, because the Court concludes that the

17 Defendants are entitled to summary judgment on Muñoz’s Eight Amendment claims, it does

18 address whether they are entitled to qualified immunity.

19 2. Exhaustion of Administrative Remedies as to KVSP Defendants

(Gutierrez, Swaim, Geary, and Yoder)

20

a. Standard of Review for Exhaustion of Administrative Remedies

21

“The PLRA mandates that inmates exhaust all available administrative remedies before

22

filing ‘any suit challenging prison conditions,’ including, but not limited to, suits under § 1983.”

23

Albino, 747 F.3d at 1171 (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006)). Where the evidence

24

in the record permits, the appropriate procedural device for pretrial determination of whether

25

administrative remedies have been exhausted under the PLRA is a motion for summary judgment

26

under Rule 56. Id. at 1168. The burden is on the defendant to prove that there was an available

27

administrative remedy that the plaintiff failed to exhaust. Id. at 1172. If the defendant meets that

1 burden, the burden shifts to the plaintiff to present evidence showing that there is something in this

2 particular case that made the existing and generally available administrative remedies effectively

3 unavailable to the plaintiff. Id. The ultimate burden of proof remains with the defendant,

4 however. Id.

5 If undisputed evidence viewed in the light most favorable to the plaintiff shows a failure to

6 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if material

7 facts are disputed, summary judgment should be denied and the district judge rather than a jury

8 should determine the facts in a preliminary proceeding. Id.

9 b. Analysis

10 The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with

11 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

12 confined in any jail, prison, or other correctional facility until such administrative remedies as are

13 available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e(a) requires “proper exhaustion” of

14 available administrative remedies. Ngo, 548 U.S. at 93. A prisoner not only must pursue every

15 available step of the prison appeal process but also must adhere to “deadlines and other critical

16 procedural rules” of that process. Id. at 90.

17 Compliance with prison grievance procedures is all that is required by the PLRA to

18 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail necessary in

19 a grievance to comply with the grievance procedures will vary from system to system and claim to

20 claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper

21 exhaustion. Id. at 218. In California, the regulation requires the prisoner “to lodge his

22 administrative complaint on CDC[R] Form 602 and ‘to describe the problem and action

23 requested.’” Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting former Cal. Code Regs.

24 tit. 15 § 3084.2(a)).

25 A prisoner must “exhaust his administrative remedies prior to sending his complaint to the

26 district court.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (emphasis added). The

27 prisoner cannot comply with the PLRA’s exhaustion requirement “by exhausting available

1 (citation omitted).

2 The CDCR provides its inmates and parolees the right to administratively grieve and

3 appeal any “policy, decision, action, condition, or omission by the Department or departmental

4 staff that causes some measurable harm to their health, safety, or welfare.” Cal. Code Regs. tit.

5 15, § 3481(a).8

6 Under the regulations effective June 1, 2020, there are two levels of review for non-health-

7 care appeals by inmates, referred to as a grievance and an appeal. At the first level, the inmate

8 submits a form CDCR 602-1 to the Institutional Office of Grievances at the prison or other facility

9 where he is housed. See Id. at § 3482(a), (c) (repealed eff. June 1, 2020). “In response, a claimant

10 shall receive a written decision” from the Institutional Office of Grievances “clearly explaining the

11 reasoning for the Reviewing Authority’s decision as to each claim.” Id. at § 3481(a) (repealed eff.

12 June 1, 2020). At the second level, an inmate dissatisfied with the Institutional Office of

13 Grievances’ decision at first level submits a form CDCR 602-2 to the CDCR’s Office of Appeals

14 in Sacramento. Id. at §§ 3481(a), 3485(a) (repealed eff. June 1, 2020).

15 Prisoners also may file complaints regarding healthcare policies, decision, actions,

16 conditions, or omissions using a form CDCR 602 HC. Cal. Code Regs. tit. 15, § 3999.226(a),

17 3999.227. Such complaints are subject to two levels of review – an institutional level of review

18 and a headquarters level of review. Id.

19 A grievance should include sufficient information “to allow prison officials to take

20 appropriate responsive measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (citation

21 and internal quotation omitted). To initiate the grievance process, an inmate must submit a CDCR

22 Form 602 within thirty calendar days of the event or decision being appealed. See Cal. Code

23 Regs. tit. 15, § 3482(b)-(d). The PLRA’s exhaustion requirement cannot be satisfied “by filing an

24 untimely or otherwise procedurally defective administrative grievance or appeal.” Ngo, 548 U.S.

25

26 8 The regulations that set out the features of the administrative remedies process for California

prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1,

27 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 were repealed and

1 at 84.

2 There are “three kinds of circumstances in which an administrative remedy, although

3 officially on the books, is not capable of use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643

4 (2016). First, “an administrative procedure is unavailable when (despite what regulations or

5 guidance materials may promise) it operates as a simple dead end—with officers unable or

6 consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative

7 scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, an

8 administrative remedy is not available “when prison administrators thwart inmates from taking

9 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at

10 644.

11 A prisoner must provide evidence, not just make conclusory allegations, to meet his burden

12 to show that existing and generally available administrative remedies were effectively unavailable.

13 See Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016). A prisoner’s “unsupported

14 allegations” regarding impediments to exhaustion are insufficient to create a triable issue of fact.

15 Id.

16 Here, the evidence submitted by Defendants shows that Muñoz did not submit a grievance

17 concerning his alleged improper transfer from KVSP to PBSP. See Gates Decl. ¶ 9; Moseley

18 Decl. ¶ 8. There is no evidence that Muñoz was prevented from taking these steps by officers

19 unable or unwilling to provide any relief, that the administrative scheme was incapable of use, or

20 that he was thwarted by prison administrators from taking advantage of the grievance process. See

21 Ross, 578 U.S. at 643-44.

22 In sum, the evidence submitted by Defendants meets their burden of proving that there was

23 an available administrative remedy that Muñoz failed to properly exhaust in connection with his

24 Eighth Amendment claim against the KVSP Defendants before filing this action. See Albino, 747

25 F.3d at 1172. The burden now shifts to Muñoz to present evidence that there was something in

26 this particular case that made existing and generally available administrative remedies effectively

27 unavailable to him. See id. Muñoz has failed to do so as he did not file an opposition to the

1 Accordingly, the KVSP Defendants (Gutierrez, Swaim, Geary, and Yoder) are entitled to

2 summary judgment under Rule 56, and the Court GRANTS their motion for summary judgment

3 as to the Eighth Amendment claim against them. See Albino, 747 F.3d at 1166.9

4 3. Eighth Amendment Claims Against PBSP Defendants (Dimmick,

Whiteman, Van Horn, Diehl, Runge, Little, Walker-Baker, and Trimm)

5

The Eighth Amendment protects prisoners from inhumane conditions of confinement and

6

requires that prison officials take reasonable measures to guarantee the safety of prisoners.

7

Farmer v. Brennan, 511 U.S. 825, 832 (1994).

8

In order to show an Eighth Amendment violation stemming from a prison official’s failure

9

to protect inmates from dangerous conditions at the prison, a plaintiff must meet two

10

requirements. See Farmer, 511 U.S. at 834. “First, the deprivation alleged must be, objectively,

11

sufficiently serious.” Id. (internal quotation marks and citation omitted). Second, the “prison

12

official must have a sufficiently culpable state of mind,” which for conditions of confinement

13

claims, is one of “deliberate indifference.” Id. (internal quotation marks and citation omitted).

14

Prison officials act with deliberate indifference when they know of and disregard an excessive risk

15

to inmate health or safety. Id. at 837. The official must both be aware of facts from which the

16

inference could be drawn that a substantial risk of serious harm exists, and he must also draw that

17

inference. See id. The circumstances, nature, and duration of the deprivations are critical in

18

determining whether the conditions complained of are grave enough to form the basis of a viable

19

Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence

20

on the part of a prison official is not sufficient to establish liability, but rather, the official’s

21

conduct must have been wanton. See Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124,

22

1128 (9th Cir. 1998).

23

a. Claims Against PBSP Defendants Who Participated in

24 Medication Distribution or Escorted Muñoz to Medication

Distribution (Whiteman, Walker-Baker, Van Horn, and Trimm)

25

Muñoz alleges that Defendants LVNs Whiteman, Walker-Baker, and Van Horn acted with

26

27

9 Because the Court has granted the KVSP Defendants’ motion for summary judgment based on

1 deliberate indifference by exposing him to COVID-19 while distributing his medication, and that

2 Defendant Correctional Officer Trimm acted with deliberate indifference by failing to sanitize the

3 waist chains and wear PPE when escorting Muñoz for medication distribution when he was

4 housed at PBSP from October 28 to November 23, 2020.10 See Dkt. 1 at 6-8.

5 First, “no one questions that [COVID-19] poses a substantial risk of serious harm” to

6 prisoners. Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020). The

7 transmissibility of the COVID-19 virus in conjunction with the Muñoz’s close-quartered living

8 conditions at ASU are sufficient to satisfy the objective prong, i.e., that Muñoz was incarcerated

9 under conditions posing a substantial risk of serious harm. See Farmer, 511 U.S. at 834. Thus,

10 the pertinent question is whether the PBSP Defendants’ actions demonstrated deliberate

11 indifference to Muñoz’s risk of harm. Id. The key inquiry is not whether the PBSP Defendants

12 perfectly responded or complied with every CDC guideline, but rather whether they “responded

13 reasonably to th[is] risk, even if the harm ultimately was not averted.” Id. at 844.

14 The PBSP Defendants argue that “the entire circumstances of the medication distribution

15 process shows that [they] were not deliberately indifferent.” Dkt. 24 at 19-20. They claim that

16 they “responded reasonably to the risk of exposing [Muñoz] to COVID-19,” stating as follows:

17 Within the C Facility where Plaintiff was housed at the relevant time

period of October 28 to November 23, 2020, there were six housing

18 units. There were approximately 24 inmates in each unit, with each

unit containing six pods, and the inmates were housed in cells within

19 the pods. For the medication distributions, the units were accessed by

way of a “roundabout” that went from the entry/exit gate inside the

20 building, through each unit, and circling back to the starting location

at the building entry/exit gate. (Declarations of Diehl, Whiteman,

21 Walker-Baker, Van Horn, and Trimm at ¶ 2.) When and as required

by PBSP protocols and procedures, PPE for staff involved in the

22 medication distributions was kept in the first unit, donned for the

medication distribution trip through each unit via the roundabout, and

23 removed at the same location when the route had been completed,

before staff exited the building. (Id.) The PPE required had been pre-

24 placed for staff to use, including some or all of a mask or face shield,

gloves, and smock/gown. Signs were posted at the location,

25 indicating what equipment was to be used by staff. (Id.) At all times,

26

10 Muñoz also claims that unserved Defendants LVNs Afadho and Vaught as well as unserved

27

Defendants Correctional Officers Sanchez, Runge, and Colson acted with deliberate indifference

Defendants Diehl, Whiteman, Walker-Baker, Van Horn and Trimm

1 used all the equipment that was so provided, in accordance with the

signage. (Id.)

2

To receive their medication, inmates would exit their cells and come

3 to the door of the pod. The pods had a door that was “honeycomb”

type perforated metal, which allowed for visual access, and a tray slot.

4 (Declarations of Diehl, Whiteman, Walker-Baker, Van Horn, and

Trimm at ¶ 3.) The directed procedure for the medication distribution

5 was that the inmate would stand on one side of the pod door, and staff

distributing the medication would stand on the other side of the door.

6 The medication would then be passed to the inmate through the tray

slot in the door. (Id.) Certain medications required staff to visually

7 observe and confirm that an inmate had consumed it after the inmate

had placed it in his mouth. To do so, the PBSP protocol and procedure

8 was for the staff member to stand approximately one and a half arm-

lengths away from the inmate, and observe the inmate’s mouth as

9 open and empty through the perforated door. (Id.) Defendants Diehl,

Whiteman, Walker-Baker, Van Horn, and Trimm complied with these

10 procedures at all times. (Id.)

11 Id. at 20. These PBSP Defendants argue that their “compliance with the institution’s procedures

12 and protocols for wearing PPE, and for the distribution and observation of inmates taking

13 medication, negates the showing required to satisfy the subjective prong for their deliberate

14 indifference.” Id. at 21. They further claim that their compliance with such procedures

15 “affirmatively shows that [they] had no subjective intent to harm [Muñoz] by exposing him to

16 COVID-19.” See id. at 21 (citing Farmer, 511 U.S. at 837). Because the subjective prong for

17 deliberate indifference cannot be established, the PBSP Defendants argue that the Court should

18 grant summary judgment. Id. Viewing the record in the light most favorable to Muñoz, there is

19 no triable issue of material fact as to whether the PBSP Defendants’ actions amounted to

20 deliberate indifference, as explained below.

21 There have been two class actions, Plata and Coleman, litigated for many years based on

22 the CDCR’s failure to implement procedures to provide constitutionally adequate medical and

23 mental health care to inmates. See Brown v. Plata, 563 U.S. 493, 506-10 (2011) (discussing

24 background of Plata and Coleman cases); Plata v. Newsom, 445 F. Supp. 3d 557, 560 (N.D. Cal.

25 April 17, 2020) (same). In 2007, the district courts determined that a substantial reduction of state

26 prison populations was needed to enable adequate care, and a three-judge panel subsequently

27 ordered the CDCR to accomplish such a reduction, an order which the Supreme Court upheld. See

1 Since the pandemic began in 2020, this Court has considered whether to order Defendants

2 to take particular measures in response to the COVID-19 pandemic. In 2020, the Plata inmates

3 sought a further reduction of prison populations, among other relief, due to the health threat newly

4 posed by the COVID-19 pandemic. Plata, 445 F. Supp. 3d at 559, 561. On April 17, 2020, the

5 Plata court ruled that the CDCR’s handling of the COVID-19 pandemic was reasonable and did

6 not violate the state prison inmates’ constitutional rights. Id. at 561-69. In reaching that

7 conclusion, the Plata court noted that the CDCR had implemented “several measures to promote

8 increased physical distancing” and limit the spread of COVID-19 in the prisons. Id. at 564. These

9 measures included “reducing the population, transferring inmates out of dormitory housing to less

10 crowded spaces, restricting movement, eliminating mixing of inmates from different housing

11 units, and placing six-foot markers in communal areas.” Id. More recently, the Ninth Circuit

12 rejected the Plata plaintiffs’ contention that the CDCR was deliberately indifferent to inmates’

13 safety by not mandating COVID-19 vaccinations for prison staff and for inmates who have in-

14 person visits or work outside the institution. See Plata v. Newsom, 2022 WL 1210694 (9th Cir.

15 Apr. 25, 2022). The Ninth Circuit stated as follows:

16 We conclude that CDCR’s COVID-19 vaccination policy was not

deliberately indifferent because the agency took significant action to

17 address the health risks posed by COVID-19, including making

vaccines and booster doses available to prisoners and correctional

18 staff, enacting policies to encourage and facilitate staff and prisoner

vaccination, requiring staff to wear personal protective equipment,

19 and ensuring unvaccinated staff members regularly test for COVID-

19. Defendants also employed other widely accepted mitigation

20 measures to reduce the risk of prisoners contracting COVID-19,

including symptom screening for all individuals entering the prisons;

21 enhanced cleaning in the facilities; adopting an outbreak action plan;

upgrading ventilation; establishing quarantine protocols for medically

22 vulnerable patients; and testing, masking, and physical distancing

among inmates. In light of these uncontested facts, Defendants did

23 not ignore or fail to respond to the risk of COVID-19 generally, nor

did they disregard the importance of vaccination as a key mitigation

24 measure specifically.

25 Id. at *1.

26 Here, it seems that Muñoz argues, in a conclusory and speculative way, that PBSP

27 Defendants acted with deliberate indifference by failing to follow certain COVID protocols while

1 positive for COVID-19 on November 23, 2020. See Dkt. 1 at 7-8.

2 As mentioned above, when examining whether a prison official subjectively acted with

3 deliberate indifference to the risk of COVID-19 exposure, the key inquiry is not whether the

4 official perfectly responded, complied with every CDC guideline, or whether the official’s efforts

5 ultimately averted such a risk. See Farmer, 511 U.S. at 844. Instead, it is whether the official

6 “responded reasonably to th[is] risk.” Id. The record shows that the PBSP Defendants involved in

7 medication distribution (Whiteman, Walker-Baker, Van Horn) claim that they complied with the

8 prison’s procedures and protocols for wearing PPE and for the medication distribution and

9 observation of medication-taking by inmates. See Whiteman, Walker-Baker, and Van Horn Decls.

10 ¶ 2. Defendant Trimm also claims that he complied with the prison’s requirements for wearing

11 PPE at all times, including when escorting inmates. See Trimm Decls. ¶ 2. This evidence shows

12 that the PBSP Defendants responded reasonably to the risk of COVID-19 exposure, and prevents

13 the Court from concluding that Muñoz can satisfy the subjective prong of a deliberate indifference

14 claim. See Farmer, 511 U.S. at 844. To the extent that Muñoz presents evidence that the PBSP

15 Defendants deviated from and failed to follow certain COVID protocols during medication

16 distributions or escorts, this alone is insufficient to demonstrate that these Defendants acted with

17 deliberate indifference toward his health and safety. Cf. Fraihat v. U.S. Immigration & Customs

18 Enforcement, 16 F.4th 613, 639 (9th Cir. 2021) (holding the failure of ICE COVID policies for

19 immigration detention centers to fully align with CDC recommendations and to strongly

20 recommend “social distancing” did not support a finding of deliberate indifference); see, e.g.,

21 Peyton v. Cates, No. 1:22-cv-00151-JLT-EPG (PC), 2022 WL 1430752, at *5 (E.D. Cal. May 5,

22 2022) (finding that “prison policy . . . alone [is not] determinative of constitutional requirements”)

23 (citation omitted), adopted, Peyton v. Cates, 2022 WL 2307789 (E.D. Cal. June 27, 2022); Greer

24 v. Caravajal,11 No. 5:22-cv-00334 VBF JDE, 2022 WL 4826513, at *9 (C.D. Cal. June 30, 2022)

25 (“When examining whether a prison official subjectively acted with deliberate indifference to the

26 risk of COVID-19, the key inquiry is not whether the official perfectly responded, complied with

27

1 every CDC guideline, or whether his efforts ultimately averted the risk.”), report and

2 recommendation adopted sub nom. Greer v. Carvajal, 2022 WL 4842927 (C.D. Cal. Sept. 30,

3 2022) (citation omitted); Jones v. Sherman, No. 1:21-cv-01093 DAD EPG, 2022 WL 783452, at

4 *8 (E.D. Cal. Mar. 11, 2022) (finding that “the failure to follow certain COVID-19 guidelines,

5 without more, is insufficient to satisfy the subjective prong of the deliberate indifference

6 standard”) (footnote omitted).

7 Even considering non-COVID-19 cases, federal courts have uniformly held that a bare

8 assertion that a prison or jail official failed to follow standard procedure is insufficient, as a matter

9 of law, to demonstrate deliberate indifference. One such case is Davis v. Buchanan County, a

10 wrongful death case filed by the parents of a former jail inmate. 11 F.4th 604 (8th Cir. 2021).

11 The Eighth Circuit considered, among various issues, whether a transportation officer was

12 deliberately indifferent to the decedent’s serious medical needs because he knew that the decedent

13 was in need of special medical attention when he took the decedent to the jail, yet consciously

14 chose not to report that information to the jail booking officer. Id. at 627. The court viewed the

15 evidence most favorably to the parents, and determined that the defendant had the potential to hear

16 the doctor’s testimony at the sentencing hearing about the decedent’s “dire, life-threatening

17 condition” prior to transporting him to jail. Id. The parents argued that under the jail’s policies,

18 the defendant was supposed to listen to courtroom testimony and report known medical conditions

19 to the jail booking officer when answering the medical intake. Id. at 628-29. The Eighth Circuit

20 reversed the district court’s denial of summary judgment as to the deliberate indifference claim

21 against the defendant upon concluding that: his failure to follow written procedures does not

22 constitute per se deliberate indifference; he did not violate the decedent’s constitutional right to

23 receive medical care; and under state law he was entitled to official immunity, which “protects

24 public officials sued in their individual capacities from liability for alleged acts of negligence

25 committed during the course of their official duties for the performance of discretionary acts.” Id.

26 at 629.

27 In another case, Luckert v. Dodge County, the estate of a detainee who committed suicide

1 deliberate indifference to serious medical needs. 684 F.3d 808 (8th Cir. 2012). The Eighth

2 Circuit reversed the trial court’s denial of the defendants’ motion for judgment as a matter of law

3 after a jury found them liable for deliberate indifference. Id. at 820. The court considered the

4 defendants’ admission that they did not follow aspects of the County Department of Corrections’

5 written suicide intervention policy, and concluded as follows: “Failure to follow written

6 procedures does not constitute per se deliberate indifference. If this were so, such a rule would

7 create an incentive for jails to keep their policies vague, or not formalize policies at all.” Id. at

8 819. The court held that, although the defendants did not follow the written policy and neglected

9 to take other actions that “may constitute poor judgment, negligence or possibly gross negligence,

10 [such acts and omissions] do not constitute deliberate indifference when viewed in the context of

11 the affirmative steps” they took to prevent the decedent’s suicide. Id. at 818.

12 Similarly, in Taylor v. Adams, another action brought by the estate of a pretrial detainee,

13 the Eleventh Circuit considered a suit under section 1983 for deliberate indifference to serious

14 medical needs after the decedent died while being transported to the jail. 221 F.3d 1254 (11th Cir.

15 2000). In Taylor, the plaintiff alleged that the medically trained firemen or “firemedics,” who

16 examined the decedent at the time of his arrest, failed to render any treatment, even though they

17 were informed by a bystander that the decedent had a history of seizures and that the decedent, in

18 fact, was about to have a seizure. Id. at 1258. In addition, the plaintiff argued that the firemedics

19 failed to follow their own protocols, which required taking the vital signs of seizing patients and

20 calling in paramedics. Id. at 1258-59. On appeal, the Eleventh Circuit reversed the district court’s

21 denial of summary judgment for the firemedics. Id. at 1258. In reaching its decision, the court

22 noted that there was no evidence “from which a jury could find that the firemedics actually drew

23 the inference that [the decedent] was having a seizure,” notwithstanding the information provided

24 by the bystander. Id. In addition, the court ruled that the “failure to follow procedures does not,

25 by itself, rise to the level of deliberate indifference because doing so is at most a form of

26 negligence.” Id.

27 Under Farmer, a claim of deliberate indifference requires that the prison official (1) be

1 exists, (2) actually draw the inference, but (3) nevertheless disregard the risk to the inmate’s

2 health. 511 U.S. at 837-38. Here, it is arguable that the PBSP Defendants were aware of facts

3 from which an inference could be drawn that their failure to follow the COVID protocols during

4 medication distributions or escorts created a substantial risk of serious harm to Muñoz. See id.

5 Even if Muñoz could show that these Defendants knew of facts from which such an inference

6 could be drawn, nothing in the record demonstrates that they actually drew the inference that any

7 deviation resulting in the failure to follow the COVID protocols during medication distributions or

8 escorts exposed Muñoz to a substantial risk of contracting COVID-19. See id. at 837. As in

9 Davis, Luckert, and Taylor, such alleged deviation by the PBSP Defendants from any of the

10 medication distribution/escort COVID protocols may have been negligent—or even grossly

11 negligent—but it is insufficient, as a matter of law, to show deliberate indifference. See id. at 835.

12 Accordingly, the Court GRANTS summary judgment as to the deliberated indifference

13 claim against the PBSP Defendants who failed to follow certain COVID protocols while

14 distributing medication (Defendants Whiteman, Walker-Baker, and Van Horn) or who failed to

15 sanitize the waist chains and wear PPE when escorting Muñoz (Defendant Trimm).

16 b. Claims Against PBSP Defendants Who Had No Involvement in

Medication Distributions and/or Had No Encounters With

17 Muñoz (Little, Runge, Dimmick, and Diehl)

18 Muñoz claims that the remaining served Defendants (Little, Runge, Dimmick, and Diehl)

19 also acted with deliberate indifference by failing to follow certain COVID protocols while

20 distributing medication and exposing him to COVID-19. Dkt. 1 at 14. Muñoz further claims that

21 Defendant Little as well as another correctional officer, Defendant Andruid (who has not been

22 served), further exposed him to COVID-19 by refusing to permit the unit to be sanitized in

23 accordance with Plata guidelines. Id. Other than Muñoz’s aforementioned statements from his

24 complaint, he does not provide any further support for this claim. See id. Meanwhile, Defendants

25 have provided evidence showing that Defendants Little, Runge, Dimmick, and Diehl could not

26 have exposed Muñoz to COVID-19 because they neither participated in medication distribution

27 nor had any encounters with him during the relevant time frame, as explained below.

1 medication distributions to Muñoz from October to November 2020, but alleges that he complied

2 with the institution’s requirements for wearing PPE “[a]t all times that [he] was working” at

3 PBSP. Little Decl. ¶ 3. Meanwhile, Muñoz claims that during the relevant time period, Defendant

4 Little, would “routin[e]ly walk through without wearing their medical [PPE],” such as “face

5 masks, gowns, and gloves.” See Dkt. 1 at 7. However, even if Defendant Little had not followed

6 the institution’s procedures and protocols, such actions would at most amount to negligence,

7 which is insufficient to demonstrate that Defendant Little was deliberately indifferent to Muñoz’s

8 health or safety. See Farmer, 511 U.S. at 835; see, e.g., Peyton, 2022 WL 1430752, at *5; Greer,

9 2022 WL 4826513, at *9; Jones, 2022 WL 783452, at *8. Because the subjective prong for

10 deliberate indifference cannot be established against Defendant Little, the Court GRANTS

11 summary judgment as to Muñoz’s claims against Defendant Little.

12 Defendants Correctional Officers Runge and Dimmick as well as Defendant LVN Diehl

13 claim they could not have exposed Muñoz to COVID-19 because they do not recall having any

14 encounters with him, including any instances of medication distribution. See Runge Decl. ¶ 2;

15 Dimmick Decl. ¶ 4, Diehl Decl. ¶ 4.

16 With regard to Defendant Runge, the record shows that he did not work in C Facility,

17 where Muñoz was housed before contracting COVID-19. Runge Decl. ¶ 2. Defendant Runge

18 worked as an inmate transportation officer during that time, he did not enter C Facility during that

19 time, and he confirmed that the records shows that he did not transport Plaintiff during that time.

20 Id. And similarly, Muñoz does not recall having any encounters with Defendant Runge before

21 being quarantined. Muñoz Dep. at 63.

22 As for Defendants Diehl and Dimmick, the record shows that Muñoz does not recall

23 having any encounters with these defendants during the relevant time frame. Id. at 61. Muñoz’s

24 only alleged encounters with Defendant Dimmick only happened after Muñoz had already been

25 quarantined with COVID-19. Dkt. 1 at 8-9. And, neither Defendant Diehl nor Defendant

26 Dimmick recall having any encounters with Muñoz during the relevant time frame. Diehl Decl.

27 ¶ 5; Dimmick Decl. ¶ 4.

1 and Diehl, then these defendants could not have exposed Muñoz to COVID-19. Therefore, Muñoz

2 has failed to provide evidence regarding an essential element of his Eighth Amendment claim

3 against Defendants Runge, Dimmick, and Diehl. The Court GRANTS summary judgment as to

4 Muñoz’s claims against them.

5 c. Summary

6 Based on the evidence presented, the PBSP Defendants have shown that there is no

7 genuine issue of material fact with respect to Muñoz’s deliberate indifference claims against them.

8 See Celotex Corp., 477 U.S. at 323. Muñoz has failed to respond and point to specific facts

9 showing that there is a genuine issue for trial, id. at 324, or identify with reasonable particularity

10 the evidence that precludes summary judgment, see Keenan, 91 F.3d at 1279. Accordingly, the

11 PBSP Defendants are entitled to judgment as a matter of law as to Muñoz’s deliberate indifference

12 claims against them. Id.; Celotex Corp., 477 U.S. at 323. Therefore, the Court GRANTS their

13 motion for summary judgment as to the Eighth Amendment claims against them.12 Dkt. 24.

14 4. Remaining Claims Against Unserved PBSP Defendants

15 As mentioned above, Defendants Andruid, Afadho, Vaught, Sanchez, Lofton, and Colson

16 have not been served in this action and have not joined the other served PBSP Defendants in their

17 motion for summary judgment.

18 Summary judgment may be properly entered in favor of any unserved defendants where

19 (1) the controlling issues would be the same as to the unserved defendants, (2) those issues have

20 been briefed, and (3) the plaintiff has been provided an opportunity to address the controlling

21 issues. Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802-03 (9th Cir.

22 1995).

23 Here, the allegations pertaining to the Eighth Amendment claims against unserved

24 Defendants Andruid, Afadho, Vaught, Sanchez, Lofton, and Colson are the same as those against

25 the served Defendants. There is no suggestion in the briefs and exhibits filed in connection with

26 the present motion for summary judgment that the analysis differs with respect to these

27

1 aforementioned unserved Defendant as opposed to the served Defendants. See Columbia Steel

2 || Fabricators, Inc., 44 F.3d at 803 (affirming the grant of summary judgment in favor of non-

3 appearing defendant where plaintiff, in response to summary judgment motion filed by defendant

4 || who had appeared, had “full and fair opportunity to brief and present evidence” on dispositive

5 issue as to claim against non-appearing defendant).

6 Accordingly, unserved Defendants Andruid, Afadho, Vaught, Sanchez, Lofton, and Colson

7 are entitled to summary judgment as a matter of law.

8 || IV. CONCLUSION

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

10 1. The Court DISMISSES: (a) all official capacity claims against all the named

11 defendants; (b) Mufioz’s claims again Defendants Nassar, Pfeiffer, Robertson, Woods, Gipson,

12 Diaz, and Kelso; and (c) his claims for punitive damages.

5 13 2. The Court GRANTS Defendants’ request for judicial notice as to Exhibits 1-3.

14 |] Dkt. 25.

15 3. The Court GRANTS Defendants’ motion for summary judgment (Dkt. 24) as to all

16 claims against served Defendants Gutierrez, Swaim, Geary, Yoder, Walker-Baker, Van Horn,

3 17 Whiteman, Diehl, Runge, Trimm, Dimmick, and Little. The Court also GRANTS summary

S 18 || judgment as to the claims against unserved Defendants Andruid, Afadho, Vaught, Sanchez,

19 || Lofton, and Colson. Pursuant to the law of the circuit, Mufioz’s Eighth Amendment claim against

20 Defendants Gutierrez, Swaim, Geary, and Yoder is DISMISSED without prejudice for failure to

21 properly exhaust available administrative remedies before filing suit.

22 4. The Clerk of the Court shall terminate all pending motions and close the file.

23 5. This Order terminates Docket Nos. 24 and 25.

24 IT IS SO ORDERED.

25 Dated: March 19, 2024

26

27 Qanck Mode

ARACELI MARTINEZ-OLGUIN

28 United States District Judge