(PC) Burgess v. Newsom et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending that the instant action be Dismissed for Failure to State a Cognizable Claim for Relief re 12 Amended Prisoner Civil Rights Complaint filed by Jeffrey Alan Burgess ; referred to Judge Drozd, signed by Magistrate Judge Stanley A. Boone on 09/7/2021. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

Case 1:21-cv-00077-DAD-SAB Document 14 Filed 09/07/21 Page 1 of 9

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY ALAN BURGESS,
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Plaintiff,
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v.
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GAVIN NEWSOM, et al.,
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Defendants.

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Case No.: 1:21-cv-00077-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE TO
THIS ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
(ECF No. 12)

Plaintiff Jeffrey Alan Burgess is proceeding pro se in this civil rights action pursuant to 42
U.S.C. § 1983.
Currently before the Court is Plaintiff’s first amended complaint, filed on July 26, 2021. (ECF
No. 12.)

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court

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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous

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or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary

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relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do

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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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Case 1:21-cv-00077-DAD-SAB Document 14 Filed 09/07/21 Page 2 of 9

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U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which

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requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is

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liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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ALLEGATIONS IN COMPLAINT
The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua

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sponte screening requirement under 28 U.S.C. § 1915.

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Plaintiff is currently in the custody of the California Department of Corrections and

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Rehabilitation and is housed at Avenal State Prison (“ASP”). He brings this action against Governor

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Gavin Newsome, ASP Chief Executive Officer Nash, ASP Associate Warden Bailey, ASP Warden

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Gamboa, ASP Chief Deputy Warden Groves, ASP Lieutenants Kramer and Hurl, ASP Sergeants Morton

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and Christiansen alleging that he contracted COVID-19, Secretary of CDCR Kathleen Allison, and

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Receiver Clark Kelso. (First Am. Compl. 1, 3,1 ECF No. 12.)
On May 20, 2020, Plaintiff contracted COVID-19 at Avenal State Prison in dorm 5, bed 3,

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because staff contracted the virus and carried it into the prison facility. There has been a total of 224

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deaths due to COVID-19 at Avenal State Prison. Sixty percent of the staff at Avenal State Prison

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refuse to be vaccinated and there needs to be a mandate authoritative instruction of command by the

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Governor of the State of California to impose the vaccination requirement. In the dorms there is less

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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.

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than four week between each bunk and the bunks cannot be properly spaced apart. Plaintiff requests

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that all state employees at Avenal State Prison take the vaccine.

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III.

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DISCUSSION

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A.

Linkage Requirement Under Section 1983

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada

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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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B.

Supervisory Liability

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Plaintiff names Governor Gavin Newsom, Warden Gamboa, Associate Warden Bailey, Chief

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Deputy Warden Groves, Lieutenant Kramer, Lieutenant Hurl, Sergeant Morton, and Sergeant

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Christiansen, as Defendants. Insofar as Plaintiff is attempting to sue these Defendants or any other

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defendant, based solely upon his supervisory role, he may not do so. Liability may not be imposed on

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supervisory personnel for the actions or omissions of their subordinates under the theory of respondeat

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superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir.

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2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or knew

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of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d

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554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an official sets in
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motion a ‘series of acts by others which the actor knows or reasonably should know would cause

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others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 570.

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Supervisory liability may also exist without any personal participation if the official

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implemented “a policy so deficient that the policy itself is a repudiation of the constitutional rights and

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is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 1435,

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1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other grounds by Farmer

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v. Brennan, 511 U.S. 825 (1970).

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To prove liability for an action or policy, the plaintiff “must ... demonstrate that his deprivation
resulted from an official policy or custom established by a ... policymaker possessed with final

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authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th

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Cir.2010). When a defendant holds a supervisory position, the causal link between such defendant and

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the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858,

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862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of supervisory personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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It is clear that COVID-19 poses a substantial risk of serious harm. See Plata v. Newsom, 445

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F.Supp.3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID-19] poses a

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substantial risk of serious harm” to prisoners.). However, in order to state a cognizable Eighth

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Amendment claim against the supervisory Defendants, Plaintiff must provide more than generalized

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allegations that the warden has not done enough to control the spread. See Booth v. Newsom, No.

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2:20-cv-1562 AC P, 2020 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020).

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Here, it is unclear the conduct Plaintiff alleges the supervisory Defendants engaged in that

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violated his constitutional right. Plaintiff has failed to allege direct participation in the alleged

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violations. Although Plaintiff mentions the inability to social distance, he has failed to allege the

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causal link between such Defendant and the claimed constitutional violation which must be

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specifically alleged. He does not make a sufficient showing of any personal participation, direction, or

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knowledge on these Defendants’ part regarding any other prison officials' actions. Plaintiff has not

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alleged that these Defendants personally participated in the alleged deprivations.
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In addition, it is unclear what the policy is that is purportedly at issue. Plaintiff has failed to

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“demonstrate that his deprivation resulted from an official policy or custom established by a ...

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policymaker possessed with final authority to establish that policy.” Plaintiff must describe just what

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the policy or procedure did, or did not do, that made it more likely Plaintiff could contract COVID-19.

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Plaintiff must also allege facts showing that each Defendant knew, or should have known, when the

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policy or procedure was enacted that it placed Plaintiff at serious risk of harm. In other words,

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Plaintiff must allege specific facts that show Defendants were deliberately indifferent to the risk to

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plaintiff of contracting COVID-19.

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C.

Exposure to COVID-19

“[T]he Eighth Amendment applies to conditions of confinement that are not formally imposed

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as a sentence for a crime.” Helling v. McKinney, 509 U.S. 25, 29 (1993). The Supreme Court has

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recognized that the Eighth Amendment “requires that inmates be furnished with the basic human

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needs, one of which is ‘reasonable safety,’ ” and “[i]t is “cruel and unusual punishment to hold

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convicted criminals in unsafe conditions.” Id. at 33 (citations omitted). Such Eighth Amendment

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claims are analyzed through a two-pronged inquiry. Id. at 35-37. Under the objective prong, the

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prisoner must establish “society considers the risk that the prisoner complains of to be so grave that it

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violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other

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words, the prisoner must show that the risk of which he complains is not one that today's society

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chooses to tolerate.” Id. at 36. The subjective prong “requires an inquiry into the prison officials' state

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of mind” based on the “deliberate indifference” standard. Id. at 32. A prison official is deliberately

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indifferent if he “knows of and disregards an excessive risk to inmate health or safety; the official

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must both be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Prison officials have a duty to protect inmates from serious communicable diseases. Helling v.

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McKinney, 509 U.S. at 33 (finding prison officials may not “be deliberately indifferent to the exposure

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of inmates to a serious, communicable disease”); Hutto v. Finney, 437 U.S. 678, 682-83 (1978)

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(affirming a finding of an Eighth Amendment violation where a facility housed individuals in crowded

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cells with others suffering from infectious diseases, such as Hepatitis and venereal disease, and the
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individuals’ “mattresses were removed and jumbled together each morning, then returned to the cells

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at random in the evening”); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (recognizing a

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

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screening inmates for infectious diseases - HIV, Hepatitis C, and Heliobacter pylori - and for housing

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contagious and healthy individuals together during a known “epidemic of hepatitis C”); Maney v.

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Hall, ––– F. Supp. 3d ––––, 2021 WL 354384, at *12 (D. Or. Feb. 2, 2021) (citing cases recognizing

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prison officials’ duty to protect inmates from exposure to communicable diseases under the Eighth

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Amendment).

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There is no question that COVID-19 is a serious communicable disease and courts have so

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

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[COVID-19] poses a substantial risk of serious harm” to prisoners.); Kuykendall v. Superior Ct. of

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California, No. 2:20-cv-1590 KJN P, 2020 WL 6582163, at *3 (E.D. Cal. Nov. 10, 2020)

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While Plaintiff’s complaint alleges that COVID-19 is widespread at Avenal State Prison, he

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fails to demonstrate that prison officials failed to take steps necessary to address the disease. Plaintiff

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does not allege any particular wrongdoing or specific action that any Defendant has taken that

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suggests deliberate indifference to his serious medical needs. The bare allegations of the existence of

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a disease and the contraction of the disease simply are not enough to state a claim against any

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defendant for deliberate indifference. COVID-19 is certainly a serious problem, but this plaintiff has

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failed to allege facts that suggest the presence of the mental state necessary for an Eighth Amendment

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claim. It is “ ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’

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” Farmer, 511 U.S. at 834 (internal quotation marks, emphasis, and citations omitted). “To violate the

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Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of

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mind,’ ” which is one of “deliberate indifference” to inmate health or safety. Id.

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Plaintiff further alleges that there is no way to socially distance in his dorm. The Court notes

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that overcrowding, by itself, is not a constitutional violation. Doty v. County of Lassen, 37 F.3d 540,

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545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d at 1248-49 (noting that overcrowding itself not

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Eighth Amendment violation but can lead to specific effects that might violate Constitution),

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abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see also Balla v. Idaho
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State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989) (allegations of prison overcrowding alone are

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insufficient to state a claim under the Eighth Amendment.); Rhodes v. Chapman, 452 U.S. at 348-49

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(double-celling of inmates by itself does not inflict unnecessary or wanton pain or constitute grossly

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disproportionate punishment in violation of Eighth Amendment). An overcrowding claim is

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cognizable only if the plaintiff alleges that crowding has caused an increase in violence, has reduced

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the provision of other constitutionally required services, or has reached a level rendering the institution

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no longer fit for human habitation. See Balla, 869 F.2d at 471; Akao v. Shimoda, 832 F.2d 119, 120

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(9th Cir. 1987) (per curiam) (as amended) (reversing district court's dismissal of claim that

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overcrowding caused increased stress, tension, and communicable disease among inmate population);

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Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that Eighth Amendment

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violation may occur as result of overcrowded prison conditions causing increased violence, tension,

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and psychiatric problems).

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Plaintiff’s concerns over the risk of contracting COVID-19 are not insignificant, but this risk is

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not unique to prisoners. This is a global pandemic, effecting millions of individuals worldwide.

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Nonetheless, the Court recognizes that “[p]risons present unique concerns regarding the spread of this

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virus; by their very nature, prisons are confined spaces unsuited for ‘social distancing.’ ” Evdokimow

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v. Doll, No. 4:21-CV-00261, 2021 WL 767554, at *6 (M.D. Pa. Feb. 26, 2021). However, CDCR

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guidelines specifically contemplate that individuals will be confined within prisons during the duration

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of this pandemic. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

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Correctional and Detention Facilities, Centers for Disease Control and Prevention,

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https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-

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detention.html (last visited Mar. 29, 2021). However, to state a cognizable Eighth Amendment claim,

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Plaintiff must provide more than generalized allegations that Defendants have not done enough to

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enforce six-feet social and living distancing, or provided sufficient cleaning supplies, in order to

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control the spread of COVID-19. See, e.g., Sanford v. Eaton, No. 1:20-cv-00792-BAM (PC), 2021

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WL 1172911, at *6 (E.D. Cal. Mar. 29, 2021) (explaining that “in order to state a cognizable Eighth

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Amendment claim against the warden, associate wardens and the other defendants named, Plaintiff

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must provide more than generalized allegations that the warden, associate wardens and other
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defendants have not done enough regarding overcrowding to control the spread” of COVID-19);

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Blackwell v. Covello, No. 2:20-cv-01755 DB P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021)

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(concluding that “in order to state a cognizable Eighth Amendment claim against the warden plaintiff

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must provide more than generalized allegations that the warden has not done enough to control the

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spread” of COVID-19). Plaintiff fails to allege facts showing how each Defendant specifically was

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responsible for such failings, or allege a causal link between each Defendant and the claimed

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constitutional violation. See, e.g., Cedillos v. Youngblood, No. 1:21-cv-00138-DAD-BAM (PC), 2021

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WL 2534534, at *3 (E.D. Cal. June 21, 2021) (concluding that prisoner failed to state Section 1983

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claims due to allegations of “failings in social distancing and unclean cells and showers” during

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COVID-19 pandemic, where plaintiff failed to allege causal link between defendants and violations);

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Stephen v. Tilestone, No. 2:20-cv-1841 KJN P, 2021 WL 289379 (E.D. Cal. Jan. 28, 2021)

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(concluding that plaintiff failed to allege Eighth Amendment violation for prison transfer that

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purportedly put him at extreme risk of contracting COVID-19 because he did not allege facts showing

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how any particular defendant violated his rights). The pertinent question in determining whether

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Plaintiff states a claim is whether Defendants’ actions or inactions demonstrated deliberate

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indifference to that risk of harm. The key inquiry is not whether Defendants perfectly responded,

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complied with every CDCR guideline, or whether their efforts ultimately averted the risk; instead, the

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key inquiry is whether they “responded reasonably to the risk.” See Stevens v. Carr, No. 20-C-1735,

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2021 WL 39542, at *4 (E.D. Wis. Jan. 5, 2021). Thus, even if the response at Avenal State Prison has

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been inadequate, there are insufficient allegations to demonstrate that any particular Defendant

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disregarded a known risk or failed to take any steps to address the risk. Wilson v. Williams, 961 F.3d

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829, 843 (6th Cir. 2020). Despite the Court’s previous advisement of the linkage requirement,

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Plaintiff’s first amended complaint merely lists the Defendants names in the caption only without any

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reference or linkage in the body of the complaint allegations.

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Lastly, with regard to Plaintiff’s request that all state prison employees be vaccinated, Plaintiff

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is advised that effective August 2, 2021, all CDCR and CCHCS state employees shall show proof of

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full vaccination status, or they will be subject to regular intervals of COVID-19 testing. See

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https://www.cdcr.ca.gov/covid19/updates/.
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IV.

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ORDER AND RECOMMENDATION
For the reasons stated, Plaintiff’s first amended complaint fails to state a cognizable section

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1983 claim for relief. Despite being provided with the relevant pleading and legal standards, Plaintiff

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has been unable to cure the identified deficiencies and further leave to amend is not warranted. Lopez

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v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Accordingly, it is HEREBY ORDERED that the Clerk of Court randomly assign a District

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Judge to this action.
Further, it is HEREBY RECOMMENDED that the instant action be dismissed for failure to

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state a cognizable claim for relief.
This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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September 7, 2021
UNITED STATES MAGISTRATE JUDGE

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