Jones v. Pollard

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 HENRY A. JONES, JR., Case No. 21-cv-162-MMA (RBM)

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANT’S

MOTION TO DISMISS

14 MARCUS POLLARD, Warden, et al.,

15 Defendants.

[Doc. No. 32]

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19 On January 27, 2021, Henry A. Jones, Jr. (“Plaintiff”), a state prisoner and

20 proceeding pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983, alleging

21 violations of his Eighth Amendment rights. See Doc. No. 1 (“Compl.”). Defendant

22 Warden Marcus Pollard (“Defendant”) now moves to dismiss Plaintiff’s claim against

23 him. Doc. No. 32. Plaintiff filed an opposition, to which Defendant replied. See Doc.

24 Nos. 33, 34. Plaintiff then filed a sur-reply, Doc. No. 6, which the Court did not

25 authorize but nonetheless accepted while noting the discrepancy, Doc. No. 7. Defendant

26 filed a response to Plaintiff’s sur-reply. Doc. No. 38. For the reasons set forth below, the

27 Court GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss.

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1 I. BACKGROUND

2 Plaintiff alleges that Defendant was deliberately indifferent to his health and safety

3 in violation of the Eighth Amendment based upon the decision to use the mental health

4 building at the R. J. Donovan Correctional Facility (“RJD”), in San Diego, California,

5 where Plaintiff was housed,2 to quarantine inmates infected with COVID-19, thereby

6 exposing him to the virus, with which he was infected. See Compl. at 3–4, 12–14.

7 Specifically, Plaintiff alleges that sometime in April or May of 2020, Defendant

8 chose to make the mental health building, the “A-1 Facility,” the quarantine location for

9 inmates infected with COVID-19. Compl. at 3, Compl. at 12 ¶ 8. Specifically,

10 Defendant “[n]otified prison officials located in [the] Mental Health Building[] A-1 to

11 clear out A-Section from 1-thru-10, 201-[thru]-210” to house “covid infectious inmates.”

12 Compl. at 12 ¶ 8. Plaintiff alleges that the inmates in the mental health building

13 complained of the decision to “plac[e] infectious inmates in the Building with non-

14 infected inmate[s],” Compl. at 3, and on May 16, 2020, they collectively contested the

15 decision to make “the Mental health Building [a] dumping ground for covid-19 inmates,”

16 Compl. at 12 ¶ 9. On May 16, 2020, however, the collective grievance was returned, and

17 the inmates were instructed to file “separate 602’s.” Compl. at 3; Compl. at 12 ¶ 10.

18 On June 20, 2020, Plaintiff filed an individual 602 inmate grievance log no. 13756

19 (the “602”).3 Compl. at 12; Compl. at 17–24 (“Pl. Ex. A”). In the 602, Plaintiff

20 specifically complains of Defendant’s “placing quarantine cov[id]-19 inmates housed in

21 cells/building not designed to prevent the spread of cov[id]-19.” Pl. Ex. A at 20.

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1 Because this matter is before the Court on a motion to dismiss, the Court must accept as true the

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allegations set forth in the complaint. See Hosp. Bldg. Co. v. Trs. Of Rex Hosp., 425 U.S. 738, 740

25 (1976).

2 According to Plaintiff’s filings, sometime between August and October 2021, he was moved from RJD

26 to the California Medical Facility (“CMF”) in Vacaville, California. Compare Doc. No. 21 with Doc.

No. 24.

27 3 Although Plaintiff initially alleges he filed his 602 on May 20, 2020, Compl. at 12 ¶ 11, he later states

that he filed it “on or about June 20, 2020,” Compl. at 12, which is consistent with the 602 attached as

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1 Plaintiff attached a memorandum to the 602, which is “[d]irected to” Defendant, Compl.

2 at 12 ¶ 7, and states, in relevant part, that the greivance was premised on Defendant’s

3 “clearing out one section of the housing unit to place Covid-19 inmates in cells that share

4 the same air vent.” Pl. Ex. A at 22. Plaintiff further explained that he had underlying

5 health conditions that put[] his life at risk.” Pl. Ex. A at 22. On August 10, 2020,

6 Plaintiff’s 602 was disapproved. Pl. Ex. A at 18. Plaintiff appealed that decision, again

7 citing his underlying health conditions and attaching medical documents. Pl. Ex. A at 19,

8 21, 23.

9 Plaintiff asserts that on December 6, 2020, while his appeal was pending,4 an

10 inmate infected with the virus was placed in “cell 227” and was later removed several

11 hours later. Compl. at 3; Compl. at 12 ¶ 17. Plaintiff alleges that the following day,

12 “99% of the inmates were infected with covid-19.” Compl. at 3; see also Compl. at 12 ¶

13 17 (“Nurse’s [sic] came [] around, notifying all the inmates housed in A-1[] that they

14 have been infected with covid-19.”).

15 Plaintiff contracted and tested positive for COVID-19 on December 8, 2020.

16 Compl. at 32 (“Exhibit D”). Plaintiff asserts that on December 11, 2020, he experienced

17 “chest pains, racing heart beats” and was taken to medical for an EKG, which showed

18 “no changes” to his heart. Compl. at 13 ¶¶ 21–22.

19 Plaintiff asserts that while he, as well as the other inmates in the mental health

20 building, “pleaded to [the] administration not to place infectious inmates in the same

21 area,” Defendant “ignored [the] inmates’[] pleas,” Compl. at 3, and instead placed

22 inmates infected with COVID-19 in the “general population” rather than in isolation until

23 they were no longer infectious. Compl. at 3. Plaintiff claims that Defendant’s decision to

24 quarantine COVID-19–infected inmates in the mental health building constituted a

25 deliberate indifference to his health and safety in violation of the Eighth Amendment.

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4 While the appeal decision is dated November 16, 2020, Pl. Ex. A at 17, Plaintiff alleges that he did not

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1 See Compl. at 3–4. He alleges that Defendant personally made the housing decision

2 knowing it would expose the inmates to COVID-19 and knowing there was no treatment

3 for the virus. Compl. at 3–4.

4 In his Complaint, Plaintiff names Defendant as well as Secretary of the California

5 Department of Corrections and Rehabilitation (“CDCR”) Kathleen Allison and “Doctor’s

6 and Other’s R.J.D. Donovan” as John Doe Defendants 1–6. Compl. at 2. In its Screening

7 Order, the Court dismissed the Doe Defendants for failure to plead any factual allegations

8 against them. Doc. No. 10 at 4. The Court found that Plaintiff sufficiently pleaded an

9 Eighth Amendment claim against Defendant and Secretary Allison to withstand screening

10 under 28 U.S.C. § 1915A and directed Plaintiff to serve Defendant and Secretary Allison.

11 Id. at 5. Ultimately, Plaintiff served Defendant and simultaneously filed a “motion for

12 “voluntary dismissal” of Secretary Allison. Doc. No. 31. Secretary Allison has not been

13 served to date. See Docket.

14 II. LEGAL STANDARD

15 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

16 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A

17 pleading must contain “a short and plain statement of the claim showing that the pleader

18 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead

19 “enough facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P.

20 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard

21 thus demands more than a formulaic recitation of the elements of a cause of action, or

22 naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662,

23 678 (2009). Instead, the complaint “must contain allegations of underlying facts

24 sufficient to give fair notice and to enable the opposing party to defend itself effectively.”

25 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

26 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth

27 of all factual allegations and must construe them in the light most favorable to the

28 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996).

1 The court need not take legal conclusions as true merely because they are cast in the form

2 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

3 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to

4 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

5 Pro se litigants “must be ensured meaningful access to the courts.” Rand

6 v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). When the plaintiff is appearing

7 pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit

8 of the doubt. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001); Karim-Panahi

9 v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal

10 interpretation to a pro se complaint, however, the court is not permitted to “supply

11 essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the

12 Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The court must give a pro se litigant

13 leave to amend his complaint “unless it determines that the pleading could not possibly

14 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

15 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th

16 Cir. 1987)).

17 III. REQUEST FOR JUDICIAL NOTICE

18 Defendant asks the Court to take judicial notice of nine exhibits—five exhibits

19 submitted in support of his motion to dismiss: (1) transcript from the Senate Public Safety

20 Committee Senate Hearing on COVID-19 in California State Prisons dated July 1, 2020;

21 (2) Governor Gavin Newsom’s March 4, 2020 Executive Order; (3) “COVID-19 Science

22 Update” webpage from the Centers for Disease Control and Prevention website;

23 (4) online article from U.C. Davis Health; and (5) April 17, 2020 Northern District of

24 California order in Case No. 01-CV-01351-JST, and four exhibits submitted in reply:

25 (A) docket in Case No. 21-cv-00055-CAB (BGS); (B) “Tracking COVID-19 in

26 California” webpage from the California state website; (C) “WHO Coronavirus”

27 webpage from the World Health Organization website; and (D) “Population COVID-19

28 Tracing” webpage from the California CDCR website.

1 “Generally, district courts may not consider material outside the pleadings when

2 assessing the sufficiency of a complaint . . . .” Khoja v. Orexigen Therapeutics, Inc., 899

3 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

4 Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d

5 1119, 1125–26 (9th Cir. 2002)) (discussing that a court may take judicial notice of

6 matters of public record without converting a motion to dismiss into a motion for

7 summary judgment); see also Fed. R. Civ. P. 12(d) (explaining that if the court considers

8 other materials, a motion brought pursuant to Rule 12(b)(6) or (c) is converted into a

9 motion for summary judgment under Rule 56). However, the Court may, without

10 converting the motion to dismiss to one for summary judgment, “take judicial notice of

11 matters of public record,” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689), and of

12 “documents whose contents are alleged in a complaint and whose authenticity no party

13 questions, but which are not physically attached to the pleading,” Branch v. Tunnell, 14

14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith, 307 F.3d at

15 1125–26; see also Fed. R. Evid. 201.

16 Judicial notice under Federal Rule of Evidence 201 permits a court to take notice

17 of undisputed facts in matters of public record. See Khoja, 899 F.3d at 999. A court may

18 not take judicial notice of disputed facts contained in such public records. Id. A

19 judicially noticed fact must be one not subject to reasonable dispute in that it is either

20 (1) generally known within the territorial jurisdiction of the trial court or (2) capable of

21 accurate and ready determination by resort to sources whose accuracy cannot reasonably

22 be questioned. See Fed. R. Evid. 201(b).

23 The Court finds that all nine exhibits are proper for judicial notice. Exhibits 1, 2,

24 5, and A are matters of public record. See, e.g., Hayes v. Woodford, 444 F. Supp. 2d

25 1127, 1136–37 (S.D. Cal. 2006) (Courts may take judicial notice of their own records,

26 and may also take judicial notice of other court proceedings if they “directly relate to

27 matters before the court”); In re Bare Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052,

28 1067 (N.D. Cal. 2010) (“The court may take judicial notice of the existence of unrelated

1 court documents, although it will not take judicial notice of such documents for the truth

2 of the matter asserted therein.”); Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 970–

3 71 (N.D. Cal. 2020) (finding that publicly available congressional records, including

4 transcripts of congressional hearings, are proper for judicial notice). Moreover, exhibits

5 3, 4, B, C, and D are publicly available website pages. See, e.g., Daniels-Hall v. Nat’l

6 Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (taking judicial notice of information

7 contained on a government website); In re Tourism Assessment Fee Litig., No. 08cv1796-

8 MMA(WMc), 2009 U.S. Dist. LEXIS 133339, at *12 (S.D. Cal. Feb. 19, 2009) (taking

9 judicial notice of various website pages because “[i]n this new technological age, official

10 government or company documents may be judicially noticed insofar as they are

11 available via the worldwide web”) (internal citation and quotation marks omitted). The

12 Court finds that none of the exhibits are subject to reasonable dispute, nor can their

13 sources be reasonably questioned. Therefore, the Court GRANTS Defendant’s request

14 and takes judicial notice of the nine exhibits referenced above.

15 IV. DISCUSSION

16 As an initial matter, it is clear that Plaintiff does not intend to prosecute this action

17 against Secretary Allison. He has not timely served her and instead requests to

18 voluntarily dismiss her from the case. See Doc. No. 31. Accordingly, the Court

19 DISMISSSES Plaintiff’s claim against Secretary Allison.

20 As noted above, Plaintiff brings an Eighth Amendment claim against Defendant

21 based upon Defendant’s alleged decision to house COVID-19 infected inmates at RJD’s

22 mental health facility.

23 “The treatment a prisoner receives in prison and the conditions under which he is

24 confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511

25 U.S. 825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison

26 officials have a duty “to take reasonable measures to guarantee the safety of inmates,

27 which has been interpreted to include a duty to protect prisoners.” Labatad v. Corr.

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1 Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 832-33;

2 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)).

3 A. Supervisory Liability and Causation

4 Defendant first argues that Plaintiff’s claim fails because Plaintiff “expressly

5 alleg[es] that Warden Pollard’s involvement was limited to his supervisory

6 responsibilities” and that Plaintiff does not make individualized allegations as to him.

7 Doc. No. 32-1 at 13.

8 Because “[a] plaintiff must allege facts, not simply conclusions, t[o] show that

9 [each defendant] was personally involved in the deprivation of his civil rights,” Barren

10 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), there is no respondeat superior

11 liability under 42 U.S.C. § 1983, Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir.

12 1993); see also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . .

13 §1983 suits, [Plaintiff] must plead that each government-official defendant, through the

14 official’s own individual actions, has violated the Constitution.”). Thus, supervisory

15 personnel are generally not liable under section 1983 for the actions of their employees

16 under a theory of respondeat superior and, therefore, when a named defendant holds a

17 supervisory position, the causal link between him and the claimed constitutional violation

18 must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied 442 U.S. 941, 99 S.

20 Ct. 2883, 61 L. Ed. 2d 311 (1979). In order to sufficiently plead causation as to a

21 supervisory official under § 1983, a plaintiff must allege their “personal involvement in

22 the constitutional deprivation, or . . . a sufficient causal connection between the

23 supervisor’s wrongful conduct and the constitutional violation.” Keates v. Koile, 883

24 F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

25 2011) (internal quotation marks omitted)).

26 Here, although Defendant holds a supervisory position, Plaintiff sufficiently pleads

27 causation. Plaintiff alleges that in April or May of 2020, Defendant “chose to make the

28 mental health building” the quarantine location for infectious inmates.” Compl. at 3;

1 Compl. at 12 ¶ 8. Moreover, Plaintiff further alleges that this decision was deliberately

2 indifferent to his substantial risk of serious harm from contracting the virus. See, e.g.,

3 Compl. at 13 ¶ 25. Thus, while Plaintiff does not allege that Defendant personally

4 participated in the movement and placement of COVID-19 infected inmates, he pleads a

5 plausible causal connection between Defendant’s decision to quarantine the sick inmates

6 in the mental health building—the wrongful conduct—and the alleged Eighth

7 Amendment constitutional violation. Therefore, the Court DENIES Defendant’s motion

8 to dismiss on the basis that Plaintiff fails to adequately plead supervisory liability or

9 causation.

10 B. Contradictory and Vague Allegations

11 Next, Defendant argues that Plaintiff’s allegations are internally inconsistent. Doc.

12 No. 32-1 at 16. Specifically, Defendant asserts that “Plaintiff is unclear about whether

13 the decision to identify and isolate was the problem or solution.” Id. at 15. While it is

14 true, generally, that the Court “need not” accept inconsistent allegations in a complaint as

15 true on a motion to dismiss, Walsh v. Sacramento, No. 2:13-cv-2077 MCE KJN PS, 2014

16 U.S. Dist. LEXIS 128095, at *46 n.7 (E.D. Cal. Sep. 11, 2014), this principle does not

17 call on the Court to disregard virtually the entirety of this pro se Plaintiff’s Complaint

18 because it includes a few allegations that muddle the relevant facts.

19 The Court previously summarized the factual and legal basis for Plaintiff’s claim

20 in its Screening Order:

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22 Plaintiff alleges that as a result of the Defendants’ decision to use the mental

health facility at RJD, where he is housed, as a quarantine unit for all RJD

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inmates infected with the Covid-19 virus, he became infected with the virus

24 two and one-half weeks before he filed his Complaint, which he claims

constituted deliberate indifference to his health and safety in violation of the

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Eighth Amendment.

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27 Doc. No. 10 at 2–3 (citing Compl. at 3–4). The fact that Plaintiff elsewhere pleaded

28 facts, such as that RJD officials were supposed to “identify & isolate infectious inmates,”

1 Compl. at 3, does not contradict or undermine his relevant allegations. Instead, a liberal

2 construction of Plaintiff’s claim is that Defendant did not properly isolate infected

3 inmates and instead quarantined them in the building where Plaintiff was housed,

4 resulting in him contracting the virus. Therefore, the Court DENIES Defendant’s motion

5 on this basis.

6 Defendant also argues that Plaintiff’s allegations are too vague and leave essential

7 details omitted. Doc. No. 32-1 at 16. Defendant does not explain why Plaintiff is

8 required to plead “what guidance Warden Pollard failed to follow[ or] how he failed to

9 follow the guidance.” Id. As noted above, Plaintiff pleads a direct theory of liability due

10 to Defendant’s decision to house inmates infected with COVID-19 in the mental health

11 building at RJD. Defendant does not provide, and the Court is not aware of, any

12 authority requiring a plaintiff to plead that such an allegedly unconstitutional action was

13 inconsistent with guidance in order to state a claim under § 1983. Moreover, Plaintiff

14 provides sufficient details to put Defendant on notice of his claim. Plaintiff pleads that:

15 (1) Defendant made the decision in April or May of 2020 to quarantine inmates infected

16 with COVID-19 in the mental health building; (2) as early as May 16, 2020, Defendant

17 was on notice that the inmates in that building, collectively, took issue with the decision;

18 (3) on June 20, 2020, Plaintiff personally complained of the decision via his 602; (4) on

19 December 7, 2020, a COVID-19 infected inmate was placed in this building, where

20 Plaintiff was housed at the time; and (5) as a result, Plaintiff contracted COVID-19 on

21 December 8, 2020. Compl. at 3. Accordingly, the Court finds that Plaintiff has pleaded

22 sufficient facts, including dates, to put Defendant on notice of his claim. The Court

23 therefore DENIES Defendant’s motion on this basis.

24 C. Deliberate Indifference

25 Next, Defendant argues that Plaintiff fails to plead deliberate indifference. Doc.

26 No. 32-1 at 15. Threats to both an inmate’s safety and health are subject to the Eighth

27 Amendment’s demanding deliberate indifference standard. See Farmer v. Brennan, 511

28 U.S. 825, 834 (1994); Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). Under

1 the deliberate indifference standard, a prison official violates the Eighth Amendment

2 when two requirements are met. First, the deprivation alleged must be, objectively,

3 ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson

4 v. Seiter, 501 U.S. 294, 298 (1991)). Second, Plaintiff must allege the prison official he

5 seeks to hold liable had a “sufficiently culpable state of mind,” that is, “one of ‘deliberate

6 indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03). As to

7 the subjective requirement, a prison official can be held liable only if he “knows of and

8 disregards an excessive risk to inmate health and safety; the official must both be aware

9 of facts from which the inference could be drawn that a substantial risk of serious harm

10 exists, and he must also draw the inference.” Id. at 837.

11 1. Objective Requirement

12 Defendant argues that Plaintiff fails to show that his confinement in housing with

13 inmates infected with COVID-19 was sufficiently serious to satisfy the Eighth

14 Amendment’s objective requirement. Doc. No. 32-1 at 17. However, as many courts

15 have acknowledged, COVID-19 poses a substantial risk of serious harm. See, e.g., Plata

16 v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that

17 [COVID-19] poses a substantial risk of serious harm” to prisoners.); see also Wright

18 v. Sherman, No. 1:21-cv-01111-SAB (PC), 2022 U.S. Dist. LEXIS 20177, at *7 (E.D.

19 Cal. Feb. 3, 2022). Moreover, as to the objective element the Ninth Circuit has stated

20

21 For the objective factor, inmates must establish “that it is contrary to current

standards of decency for anyone to be . . . exposed against his will” to the

22

hazard. This “requires more than a scientific and statistical inquiry into the

23 seriousness of the potential harm and the likelihood that such injury to health

will actually be caused.” Instead, courts must “assess whether society

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considers the risk that the prisoner complains of to be so grave that it violates

25 contemporary standards of decency to expose anyone unwillingly to such a

risk,” meaning that the risk “is not one that today’s society chooses to

26

tolerate.”

27

28 Hines v. Youseff, 914 F.3d 1218, 1229 (9th Cir. 2019) (internal citations omitted).

1 The Court cannot say, at this premature stage of the litigation, that the decision to

2 house inmates infected with COVID-19 in the mental health building among non-infected

3 inmates is not “sufficiently serious.” Cf. Sanford v. Eaton, No. 1:20-cv-00792-BAM

4 (PC), 2021 U.S. Dist. LEXIS 59949, at *17 (E.D. Cal. Mar. 29, 2021) (“The

5 transmissibility of the COVID-19 virus in conjunction with Plaintiff’s living conditions,

6 which he alleges were overcrowded and poorly ventilated, are sufficient to satisfy the

7 objective prong, i.e., that Plaintiff was ‘incarcerated under conditions posing a substantial

8 risk of serious harm.’”). Instead, a reasonable person could conclude that it was contrary

9 to the standards of decency. Therefore, the Court DENIES Defendant’s motion as to the

10 Eighth Amendment’s objective requirement.

11 2. Subjective Requirement

12 To satisfy the subjective standard, “[a] prison official may be held liable under the

13 Eighth Amendment for acting with ‘deliberate indifference’ to inmate health or safety

14 only if he knows that inmates face a substantial risk of serious harm and disregards that

15 risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 825. Under

16 this standard, “prison officials who actually kn[o]w of a substantial risk to inmate health

17 or safety may be found free from liability if they respond[] reasonably to the risk, even if

18 the harm ultimately [i]s not averted.” Id. at 844. Farmer makes clear that deliberate

19 indifference “is shown adequately when a prison official is aware of the facts from which

20 an inference could be drawn about the outstanding risk, and the facts permit us to infer

21 that the prison official in fact drew that inference, but then consciously avoided taking

22 appropriate action.” Disability Rts. Mont., Inc. v. Batista, 930 F.3d 1090, 1101 (9th Cir.

23 2019) (emphasis added).

24 This case comes down to the difference between ordinary and heightened exposure

25 to a serious and highly communicable virus. As such, the present facts are

26 distinguishable from the cases to which Defendant cites. Those cases involved

27 allegations merely amounting to the general failure to control the spread of COVID-19.

28 Booth v. Newsom, No. 2:20-cv-1562 AC P, 2020 U.S. Dist. LEXIS 215148, at *4, *7

1 (E.D. Cal. Nov. 16, 2020) (sua sponte dismissing Eighth Amendment claims against the

2 Governor for the “failure of [the prison] to provide adequate means for prisoners to

3 reduce their exposure to COVID-19”); Blackwell v. Covello, No. 2:20-cv-1755 DB P,

4 2021 U.S. Dist. LEXIS 45226, at *8 (E.D. Cal. Mar. 9, 2021) (dismissing Eighth

5 Amendment claim against warden premised upon “generalized allegations that the

6 warden has not done enough to control the spread”); Benitez v. Sierra Conservation Ctr.,

7 No. 1:21-cv-00370-BAM (PC), 2021 U.S. Dist. LEXIS 170489, at *11 (E.D. Cal. Sep. 7,

8 2021), report and recommendation adopted by 2021 U.S. Dist. LEXIS 193507 (E.D. Cal.

9 Oct. 6, 2021) (finding that “in order to state a cognizable Eighth Amendment claim

10 against the warden [ ], Plaintiff must provide more than generalized allegations that the

11 warden [ ] ha[s] not done enough regarding control the spread”); Sanford v. Eaton, No.

12 1:20-cv-00792-BAM (PC), 2021 U.S. Dist. LEXIS 59949, at *15 (E.D. Cal. Mar. 29,

13 2021) (finding that “in order to state a cognizable Eighth Amendment claim against the

14 warden, associate wardens and the other defendants named, Plaintiff must provide more

15 than generalized allegations that the warden, associate wardens and other defendants have

16 not done enough regarding overcrowding to control the spread”).

17 Plaintiff does plead Defendant’s general failure to control the spread. See Compl.

18 at 11 ¶ 5. And to the extent Plaintiff’s claim is premised upon Defendant’s alleged

19 failure to control the spread of COVID-19 within RJD, generally, including the

20 allegations pertaining to the failure to provide appropriate masks, see Compl. at 15 ¶ 46,

21 the Court DISMISSES his claim. That said, Plaintiff’s claim is not solely based upon

22 Defendant’s general failure to “do enough to control the spread of the disease within the

23 entire prison.” Doc. No. 32-1 at 19. As discussed above, Plaintiff alleges that Defendant

24 made the affirmative decision—inferentially, as part of the larger COVID-19 response

25 plan—to quarantine and house inmates infected with the virus among non-infected

26 inmates in the mental health building thereby creating a heightened risk of infection to

27 those housed there. Accordingly, the line of recent district court cases cited above does

28 not support wholesale dismissal of Plaintiff’s Complaint.

1 While the Court is required to liberally interpret Plaintiff’s Complaint, it is not

2 permitted to “supply essential elements of the claim that were not initially pled.” Ivey,

3 673 F.2d at 268. This analysis involves a close examination of the line between

4 interpretation and supplementation. While Plaintiff pleads, formulaically, the deliberate

5 indifference standard, he does not explicitly plead that Defendant knew that placing

6 inmates infected with COVID-19 in the mental health building would pose a serious risk

7 of infection to the non-infected inmates housed there and nonetheless proceeded in the

8 face of this risk. However, the Court must liberally interpret Paragraph 25 of the

9 Complaint, which reads:

10

“Defendant acted with [d]eliberate indifference, and his action knowing

11

about a substantial risk of serious harm.”

12

13 Compl. at 13 ¶ 25. In interpretating this allegation, the Court looks to the rest of the

14 Complaint, wherein he pleads the following allegations relevant to the subjective element

15 of his claim:

16

17 • “We was told to file separate 602’s, and they never responded, still placing

18 infectious inmate in the unit.” Compl. at 3.

19 • [B]ecause prison officials ignored inmates’[] pleas not to place in the same

20 area inmates threatening harm to him . . . [w]e pleaded to administration not

21 to place infectious inmates in the [s]ame area d[ue] to the spread, and the

22 seriousness of covid-19.” Compl. at 3.

23 • “the Warden . . . had constructive knowledge of a [s]erious infectious

24 disease and did nothing to stop it. Nor had a disease[] control polic[y] to

25 prevent the wide spread, placing all inmates located in Building A-1 at

26 risk.” Compl. at 11 ¶ 5.

27 • “[Plaintiff] [f]iled 602 on 6-20-2020 & attached a personal

28 MEMORANDUM, [d]irected to the Warden Marcus Pollard . . . [a]bout

1 Warden [p]lacing Covid19 inmates in the Mental Health Building, exposing

2 []non infected inmates.” Compl. at 12 ¶ 7.

3 • “Defendant M. Pollard knew about a particular problem th[r]ough 602’s

4 grievances that [were] filed by more than 10[] inmates.” Compl. at 15 ¶ 53.

5

6 The Court therefore finds that it can reasonably interpret Plaintiff’s Complaint to

7 read that Defendant made the housing decision while aware of the heightened risk of

8 COVID-19 infection to those living in the mental health building and nonetheless ignored

9 the risk. Moreover, as Plaintiff correctly pleads, Compl. at 4, the Court can also

10 reasonably infer for the purpose of this motion to dismiss that Defendant was aware of

11 the risk because it is obvious. See Farmer, 511 U.S. at 842 (noting that “a factfinder may

12 conclude that a prison official knew of a substantial risk from the very fact that the risk

13 was obvious”).

14 Relevantly, Plaintiff pleads that the inmates collectively contested the decision.

15 Compl. at 12 ¶ 9. Unsurprisingly, there is at least one additional case before this Court

16 involving Defendant’s decision to house infected inmates in the mental health building at

17 RJD. Both Plaintiff and Defendant inform the Court of the case Williams v. Pollard,

18 No. 21-v-0055-CAB (BGS). See Doc. No. 3 at 6; Doc. No. 34 at 4. In that case, this

19 Court found that the plaintiff had sufficiently pleaded Defendant’s personal knowledge of

20 the allegedly improper housing of infected inmates in the mental health building at RJD.

21 See Williams v. Pollard, No. 21cv0055-CAB (BGS), 2022 U.S. Dist. LEXIS 10666, at

22 *29 (S.D. Cal. Jan. 19, 2022).5 The facts of this case as compared to Williams differ in

23 many ways. Importantly, the Williams plaintiff offered his 602, which Defendant

24 personally signed. Id. The Court does not impute Defendant’s alleged knowledge as to

25 the plaintiff’s 602 in Williams to Plaintiff’s 602 because the latter does not appear to be

26

27

5 Although Defendant only requests judicial notice of a prior order in this case, the Court can and does

28

1 personally signed. However, Defendant notably does not argue that he was unaware that

2 his COVID-19 housing decision would place the non-infected inmates there at an obvious

3 heightened risk. Moreover, the housing decision remained in effect as of at least

4 December 2020, many months after the collective grievance and Plaintiff’s 602.

5 Therefore, for this reason as well, the Court can reasonably infer that Defendant ignored

6 the risk.

7 Defendant also argues that Plaintiff fails to satisfy the subjective requirement

8 because his Complaint is “devoid of any facts sufficient to plausibly suggest Pollard was

9 personally aware of his underlying medical vulnerabilities.” Doc. No. 32-1 at 19. It is

10 true that Plaintiff does not plead Defendant was personally aware of Plaintiff’s

11 underlying medical conditions. However, as noted above, and at this stage of the

12 litigation, the increased risk of COVID-19 infection due the placement of infected

13 inmates among those not infected alone, absent underlying medical conditions, is

14 objectively, sufficiently serious. So even without this specific knowledge, Plaintiff’s

15 allegations are sufficient to support the inference that Defendant knew of the heightened

16 risk to Plaintiff of contracting COVID-19 and disregarded that risk. Accordingly, the

17 Court DENIES Defendant’s motion on this basis.

18 D. Qualified Immunity

19 Defendant also argues that Plaintiff’s claim is barred by qualified immunity. Doc.

20 No. 32-1 at 21. “Government officials enjoy qualified immunity from civil damages

21 unless their conduct violates ‘clearly established statutory or constitutional rights of

22 which a reasonable person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910

23 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Long

24 v. City & Cty. of Honolulu, 511 F.3d 901, 905–06 (9th Cir. 2007). The inquiry is two-

25 fold. First, the Court must determine whether the plaintiff has alleged the deprivation of

26 an actual constitutional right. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Second,

27 the Court must determine whether the right was clearly established. See id.

28 As noted above, Plaintiff sufficiently alleges an Eighth Amendment violation and

1 so qualified immunity is not appropriate at this time under the first prong. Turning to the

2 second prong, “[f]or a right to be clearly established, case law must ordinarily have been

3 earlier developed in such a concrete and factually defined context to make it obvious to

4 all reasonable government actors, in the defendant's place, that what he is doing violates

5 federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017)

6 (citing White v. Pauly, 137 S. Ct. 548, 551 (2017) (explaining that “existing precedent

7 must have placed the statutory or constitutional question beyond debate . . . [because]

8 immunity protects all but the plainly incompetent or those who knowingly violate the

9 law”) (internal quotation marks and citation omitted)). The inquiry “must be undertaken

10 in light of the specific context of the case, not as a broad general proposition.” Saucier

11 v. Katz, 533 U.S. 194, 201 (2001).

12 Defendant argues that “[t]here is no binding precedent, nor a robust consensus of

13 persuasive authority, establishing that state prisoners have an Eighth Amendment right to

14 a particular COVID-19 response, nor do they have a right to be free from an

15 unquantifiable increase in the risk of COVID-19 exposure in their institution.” Doc.

16 No. 32-1 at 21. However, existing precedent clearly establishes the right of an individual

17 in custody to protection from heightened exposure to a serious communicable disease.

18 See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (finding prison officials may not

19 “be deliberately indifferent to the exposure of inmates to a serious, communicable

20 disease” under the Eighth Amendment); see also Hutto v. Finney, 437 U.S. 678, 682–83

21 (1978) (affirming a finding of an Eighth Amendment violation where a facility housed

22 individuals in crowded cells with others suffering from infectious diseases, such as

23 Hepatitis and venereal disease, and the individuals’ “mattresses were removed and

24 jumbled together each morning, then returned to the cells at random in the evening”);

25 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (recognizing a cause of

26 action under the Eighth Amendment and 42 U.S.C. § 1983 for an alleged policy of not

27 screening inmates for infectious diseases—HIV, Hepatitis C, and Heliobacter pylori—

28 and for housing contagious and healthy individuals together during a known “epidemic of

1 hepatitis C”); Maney v. Brown, No. 6:20-cv-00570-SB, 2020 U.S. Dist. LEXIS 235447,

2 at *17 (D. Or. Dec. 15, 2020) (“[T]he law is clearly established that individuals in

3 government custody have a constitutional right to be protected against a heightened

4 exposure to serious, easily communicable diseases, and the Court finds that this clearly

5 established right extends to protection from COVID-19.”); Trevizo v. Webster, No. CV

6 17-5868-MWF (KS), 2018 U.S. Dist. LEXIS 227476, at *11 (C.D. Cal. Sept. 6, 2018)

7 (“It is well accepted that such ‘substantial risks of harm’ include ‘exposure of inmates to

8 a serious, communicable disease[,]’” including MRSA) (citing Helling, 509 U.S. at 33);

9 see also Loftin v. Dalessandri, 3 F. App’x 658, 663 (10th Cir. 2001) (recognizing an

10 Eighth Amendment claim for knowingly housing the defendant in a cell with individuals

11 who had tested positive for tuberculosis). Moreover, “[f]or purposes of qualified

12 immunity, that legal duty need not be litigated and then established disease by disease or

13 injury by injury.” Maney v. Brown, No. 6:20-cv-00570-SB, 2020 U.S. Dist. LEXIS

14 235447, at *17 (D. Or. Dec. 15, 2020) (quoting Estate of Clark v. Walker, 865 F.3d 544,

15 553 (7th Cir. 2017)).

16 Defendant also argues that he is entitled to qualified immunity because he and

17 officials in his position “could have reasonably believed that their actions were

18 constitutional so long as they complied with the orders from the Receiver and the Plata

19 court.” Doc. No. 32 at 22 (quoting Hines v. Youseff, 914 F.3d 1218, 1231 (9th Cir.

20 2019)). However, in Hines, the Ninth Circuit specifically noted that the officials’

21 entitlement to qualified immunity rested on two facts: (1) that “a federal court supervised

22 the officials’ actions”; and (2) that “there is no evidence that ‘society’s attitude had

23 evolved to the point that involuntary exposure’ to such a risk ‘violated current standards

24 of decency,’ especially given that millions of free individuals tolerate a heightened risk of

25 Valley Fever by voluntarily living in California's Central Valley and elsewhere.” Id. As

26 to the first, while the Court takes judicial notice of the exhibits identified above, in

27 particular, the document pertaining to the CDCR federal receivership under Plata, it

28 declines to convert this motion to one for summary judgment. The issue of whether

1 Defendant’s decision was made under the supervision of the federal Receiver, and if so,

2 whether that supervision impacts the reasonableness of the belief that the conduct was

3 lawful thus triggering qualified immunity should be more appropriately addressed at a

4 later stage.6 See O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (explaining that

5 when qualified immunity is asserted on a Rule 12(b)(6) motion to dismiss, “dismissal is

6 not appropriate unless [the Court] can determine, based on the complaint itself, that

7 qualified immunity applies”); see also Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir.

8 2018) (“If the operative complaint ‘contains even one allegation of a harmful act that

9 would constitute a violation of a clearly established constitutional right,’ then” granting

10 qualified immunity on a motion to dismiss is prohibited) (quoting Pelletier v. Fed. Home

11 Loan Bank of San Francisco, 968 F.2d 865, 872 (9th Cir. 1992)). Further, the second is

12 inapplicable here because COVID-19 is highly contagious, is not bound to a geographic

13 area, and a societal consensus has emerged regarding its danger. Accordingly, the Court

14 DENIES Defendant’s motion as to the qualified immunity defense without prejudice to

15 Defendant raising the defense at a later stage of the litigation.

16 E. PLRA’s Physical Injury Requirement

17 According to the Complaint, Plaintiff seeks injunctive relief in the form of a

18 transfer to another prison as well as the COVID-19 vaccine.7 Compl. at 7–8.

19 Additionally, Plaintiff seeks compensatory damages in the amount of $200,000,000 as

20 well as $1 million in punitive damages. Compl. at 7; Compl. at 15 ¶ B. Defendant

21 argues that, to the extent Plaintiff is permitted to proceed with his claim, he should not be

22 entitled to pursue compensatory damages. Doc. No. 32-1 at 24.

23

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25 6 Moreover, Plata v. Newsom, 445 F. Supp. 3d 557, 566 (N.D. Cal. 2020) does not require the Court to

make a finding as to qualified immunity at this time because, among other things, the court, while

26 reviewing the CDCR’s COVID-19 response, did not specifically address or condone any decisions to

quarantine COVID-19 infected inmates by housing them with non-infected inmates.

27 7 As mentioned supra note 2, Defendant has already been transferred to another facility. It is unclear if

Plaintiff seeks further transfer. Moreover, it is unclear if Plaintiff has had the opportunity to receive or if

28

1 Pursuant to the Prison Litigation Reform Act, a plaintiff must allege more than

2 mental or emotional injury. 42 U.S.C. § 1997e(e). The Ninth Circuit has interpreted

3 section 1997e’s “physical injury” requirement to mean that it “need not be significant but

4 must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). The

5 Ninth Circuit has clarified that “[t]he ‘physical injury’ requirement of 42 U.S.C.

6 § 1997e(e) does not apply to claims for compensatory, nominal, or punitive damages.”

7 Renteria v. Williams, 340 F. App’x 382, 383 (9th Cir. 2009) (citing Oliver, 289 F.3d at

8 630).

9 Plaintiff’s prayer for compensatory and punitive damages premised on deliberate

10 indifference to his health, and not on any alleged mental or emotional injuries, is not

11 barred by 42 U.S.C. § 1997e(e). See Bryant v. Newland, 64 F. App’x 58, 59 (9th Cir.

12 2003) (citing Oliver, 289 F.3d at 629–30); see also Williams, 2022 U.S. Dist. LEXIS

13 10666, at *24 (citing Oliver, 289 F.3d at 630) (holding that Ҥ 1997e(e) applies only to

14 claims for mental and emotional injury” and does not bar claims for punitive and nominal

15 damages which remain available to redress constitutional violations even in the absence

16 of more than de minimis physical injury). Further, Plaintiff alleges that he contracted

17 COVID-19, suffered from chest pains, and racing heartbeats necessitating medication.

18 Compl. at 13 ¶¶ 21, 27. This is sufficient at this stage to allege a physical injury that is

19 more than de minimis.8 Cf. Chung v. Carnival Corp., No. 20-cv-4954DDP (GJSx), 2021

20 U.S. Dist. LEXIS 149147, at *12 (C.D. Cal. Aug. 9, 2021) (finding as to the “zone of

21 danger” test in a claim for negligence that “Plaintiffs who allege that they tested positive

22 or that they exhibited symptoms of COVID-19 necessarily allege physical injury—

23 contracting the disease and injury from the disease. These Plaintiffs sufficiently allege an

24 injury for which they could recover”) (citing Archer v. Carnival Corp. & PLC, No. 2:20-

25

26

8 Plaintiff’s sur-reply focuses on his injuries, seemingly arguing that they are physical. See Doc. No. 6.

27 Plaintiff also appears to alternatively request leave to amend, see id. at 2, presumably to include new

information as to his “ongoing” injuries, to which Defendant opposes, see Doc. No. 38. However, in

28

1 || CV-04203-RGK-SK, 2020 U.S. Dist. LEXIS 236435, at *7 (C.D. Cal. Nov. 25, 2020)).

2 || Therefore, Plaintiffs claim based upon mental and emotional injury, see Compl. at 14

3 40, may proceed as well. See Oliver, 289 F.3d at 630 (“To the extent that appellant has

4 || actionable claims for compensatory, nominal or punitive damages—premised on

5 || violations of his [constitutional] rights, and not on any alleged mental or emotional

6 || injuries—[his] claims are not barred by § 1997e(e)”). Accordingly, the Court DENIES

7 || Defendant’s motion on this basis.

8 V. CONCLUSION

9 For the foregoing reasons, the Court DISMISSES Secretary Allison from this

10 |} action with prejudice and DIRECTS the Clerk of Court to update the docket of this

11 action accordingly. Further, the Court GRANTS IN PART Defendant’s motion and

12 || DISMISSES Plaintiff's claim to the extent it is based upon Defendant’s general failure to

13 control the spread of COVID-19 in RJD, generally. The Court DENIES the remainder of

14 || Defendant’s motion.

15 IT IS SO ORDERED.

16 ||Dated: March 9, 2022

17 Mikel lu -£ hiphlr

18 HON. MICHAEL M. ANELLO

19 United States District Judge

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