(PC) Johnson v. Newsom, et al.

Filing 41

ORDER signed by Chief District Judge Kimberly J. Mueller on 01/17/23 ADOPTING 38 Findings and Recommendations only to the extent consistent with this order and PARTIALLY GRANTING 32 Motion to Dismiss. Plaintiff's first amended complaint is DISMISSED with leave to file a second amended complaint within 30 days from the date of this order. This matter is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order. (Licea Chavez, V)

Case 2:21-cv-00828-KJM-KJN Document 41 Filed 01/17/23 Page 1 of 5
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELLIS JOHNSON,

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No. 2:21-cv-0828 KJM KJN P

Plaintiff,

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v.

ORDER

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KATHLEEN ALLISON, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 6, 2022, the magistrate judge filed findings and recommendations, which were

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served on all parties and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff filed objections to the

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findings and recommendations; defendants filed a reply.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds

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plaintiff should be granted an opportunity to file a second amended complaint.

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As set out in the findings and recommendations,
Plaintiff alleges the following: His Eighth Amendment right to be
free from cruel and unusual punishment was violated by defendants’
failure to protect plaintiff from COVID-19. Plaintiff is medically
high risk, based on lichen simplex chronicus, hypertension,
gastroesophageal reflux, and chronic obstructive pulmonary disease,
and he is over the age of 50. He alleges he is not being adequately
protected from COVID-19 due to inadequate sanitation, inadequate
isolation from symptomatic people, inadequate quarantine of
exposed people, inadequate exclusion of symptomatic or exposed
staff, and inadequate testing and reporting. Plaintiff was ordered to
move to building 9 (in cell living) due to his high risk status, yet
contracted COVID-19 a few days later; another high risk inmate died
as a result of moving into that same building. In response to
plaintiff’s administrative appeal seeking early release from
incarceration, defendant Dr. Largoza responded “no intervention,”
adding that inmates with a COVID-19 risk score of 4 or higher would
undergo additional custodial screening to determine whether eligible
for expedited release. Despite having a rating of 7, plaintiff has not
yet been notified of possible release. He claims that defendant Gates
also responded “no intervention.” [Footnote omitted.] (ECF No. 18
at 4.)
ECF No. 38 at 2.
The two defendants against whom this action is currently proceeding, Dr. Largoza and

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Chief of Health Care Services Gates seek dismissal on a number of grounds. See id. at 5-7. The

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magistrate judge recommends the motion to dismiss be granted on the merits and without leave to

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amend the complaint. Id. at 13-15. In particular, the magistrate judge construes the basis for

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plaintiff’s claim against these two defendants as arising from their roles in reviewing plaintiff’s

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administrative grievance, which he interprets as “not seeking medical treatment . . . [but r]ather

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. . . seeking early release from prison based on the risk that he would suffer serious illness if

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infected with COVID-19.” Id. at 14. In part relevant to the question of whether plaintiff should

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be allowed to file a second amended complaint, the findings and recommendations set out the

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following contentions in plaintiff’s opposition to the motion to dismiss:

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In his opposition, plaintiff now contends that he was housed with
inmates who had confirmed cases of COVID-19, rather than being
housed with inmates only suspected of having been exposed to
COVID-19, in violation of the guidelines established by the Center
for Disease Control and Prevention. He claims unidentified CDCR
medical officials demonstrated deliberate indifference to plaintiff’s
health and safety by subjecting him to such conditions and failing to
take reasonable steps to abate them. But plaintiff fails to attribute
such housing decisions to either defendant charged with reviewing
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Case 2:21-cv-00828-KJM-KJN Document 41 Filed 01/17/23 Page 3 of 5
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his grievance. Indeed, in his grievance, plaintiff did not allege issues
with his specific housing; rather, he generally complained about
inadequate sanitation, watered-down disinfectant, no hand washing
facilities, inadequate isolation and quarantine of symptomatic and
exposed people, inadequate exclusion of symptomatic or exposed
staff, and inadequate testing and reporting. (ECF No. 1 at 8.) Most of
such issues, while related to public health matters, concern custody
staff and unidentified prison staff responsible for making housing
decisions, and would not fall under the purview of medical
professionals tasked with reviewing health care appeals.

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Id. at 15.
In his objections, plaintiff contends he should be given an opportunity to amend his
complaint to state claims against defendants responsible for subjecting plaintiff to unsafe

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conditions of confinement in light of his medical conditions, age, and the increased risks posed by

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COVID-19. The court agrees.

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The court should only deny leave to amend when it “is satisfied that the deficiencies in the

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complaint could not possibly be cured by amendment.” Jackson v. Carey, 353 F.3d 750, 758 (9th

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Cir. 2003); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The court is persuaded by the

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analysis in Maney v. Brown, 2020 WL 7364977 (D.Or. Dec. 15, 2020), set out in findings and

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recommendations in Jones v. Sherman, 2022 WL 783452 (E.D.Cal. Mar. 11, 2022), adopted in

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full by the district court on September 14, 2022, as follows:

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Existing precedent clearly establishes the right of an individual in
custody to protection from heightened exposure to a serious
communicable disease. See, e.g., Helling v. McKinney, 509 U.S. 25,
33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (finding prison officials
may not “be deliberately indifferent to the exposure of inmates to a
serious, communicable disease” under the Eighth Amendment); see
also Hutto v. Finney, 437 U.S. 678, 682-83, 98 S.Ct. 2565, 57
L.Ed.2d 522 (1978) (affirming a finding of an Eighth Amendment
violation where a facility housed individuals in crowded cells with
others suffering from infectious diseases, such as Hepatitis and
venereal disease, and the individuals’ “mattresses were removed and
jumbled together each morning, then returned to the cells at random
in the evening”); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th
Cir. 2007) (recognizing a cause of action under the Eighth
Amendment and 42 U.S.C. § 1983 for an alleged policy of not
screening inmates for infectious diseases—HIV, Hepatitis C, and
Heliobacter pylori—and for housing contagious and healthy
individuals together during a known “epidemic of hepatits C””);
Trevizo v. Webster, No. CV 17-5868-MWF (KS), 2018 U.S.Dist.
LEXIS 227476, 2018 WL 5917858, at 4 (C.D. Cal. Sept. 6, 2018) (“It
is well accepted that such ‘substantial risks of harm’ include
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‘exposure of inmates to a serious, communicable disease[,]’ ”
including MRSA) (citing Helling, 509 U.S. at 33, 113 S.Ct. 2475);
see also Loftin v. Dalessandri, 3 F.App’x 658, 663 (10th Cir.
2001) (recognizing an Eighth Amendment claim for knowingly
housing the defendant in a cell with individuals who had tested
positive for tuberculosis); cf. Farmer v. Brennan, 511 U.S. 825, 843,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“The question under the
Eighth Amendment is whether prison officials, acting with
deliberate indifference, exposed a prisoner to a sufficiently
substantial ‘risk of serious damage to his future health[.]’ ” (citing
Helling, 509 U.S. at 35, 113 S.Ct. 2475))). “For purposes of qualified
immunity, that legal duty need not be litigated and then established
disease by disease or injury by injury.” Estate of Clark v. Walker,
865 F.3d 544, 553 (7th Cir. 2017).
Thus, the law is clearly established that individuals in government
custody have a constitutional right to be protected against a
heightened exposure to serious, easily communicable diseases, and
the Court finds that this clearly established right extends to protection
from COVID-19. It is undisputed that COVID-19 is easily
communicable. (See Defs.’ Mot. Partial Summ. J. at 3; SAC ¶ 45.)
In addition, based on the known mortality rate, hospitalizations, and
medical consequences, there can be no dispute that COVID19 exposes AICs to a sufficiently substantial risk of serious harm.
(See Defs.’ Reply at 7; Stern Decl. ¶¶ 9-10.) The law does not support
a finding of qualified immunity for government officials who fail to
protect individuals in their custody from a new serious
communicable disease, as opposed to a serious communicable
disease of which they were previously aware. To hold otherwise as a
matter of law would provide qualified immunity to Defendants even
if they had done nothing in response to the COVID-19 pandemic.
... Defendants also argue that Hines v. Yousseff forecloses a finding
of a clearly established right. 914 F.3d 1218 (9th Cir.), cert. denied
sub nom. Smith v. Schwarzenegger, ___ U.S. ___, 140 S.Ct. 159, 205
L.Ed.2d 46 (2019). The Court disagrees.
...
The Ninth Circuit's decision in Hines v. Youseff does not require a
different result. In Hines, the Ninth Circuit found that individuals in
custody had no clearly established right to be free from heightened
exposure to Valley Fever spores, 914 F.3d at 1228. Notably, the
court found that “[s]ince the prisoners are confined together, it is
especially important that Valley Fever is not contagious.” Id. at 1226.
The court noted that “no societal consensus has emerged that the risk
[of contracting Valley Fever] is intolerably grave,” such that a
reasonable officer would not necessarily know that housing
individuals together in a region known for Valley Fever violated the
Constitution. Id. at 1232. In contrast here, COVID-19 is highly
contagious, is not bound to a geographic area, and a societal
consensus has emerged regarding its danger. There is no dispute that
this virus presents a sufficiently substantial risk of harm to AICs, and
it should have come as no surprise to Defendants that they have a
duty to protect AICs from exposure to COVID-19.
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Maney, 2020 WL 7364977, at 4-6 (alterations in original) (footnote
omitted).
Jones v. Sherman, 2022 WL 4238875 (E.D.Cal. Sept. 14, 2022). The court also agrees with the
Jones court on when a prison inmate states an Eighth Amendment claim in this context:
Based on the foregoing, the Court finds that a prisoner states a
cognizable Eighth Amendment conditions of confinement claim if
the prisoner can sufficiently allege that a defendant knew of the risks
of COVID-19 and had authority to mitigate the risks, yet did nothing
to mitigate those risks. The Court also finds that the law is clearly
established that individuals in government custody have a
constitutional right to be protected against a heightened exposure to
serious, easily communicable diseases, and that this this clearly
established right extends to protection from COVID-19.
Jones, slip op. at *10. Application of the foregoing compels the conclusion that plaintiff must be
given an additional opportunity to amend his complaint. Plaintiff makes sufficient assertions in
the record to conclude that he may be able to allege cognizable claims against one or more
defendants under the foregoing standards.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed May 6, 2022, are adopted only to the extent
consistent with this order;
2. Defendants’ motion to dismiss (ECF No. 32) is partially granted;
3. Plaintiff’s first amended complaint is dismissed with leave to file a second amended
complaint within thirty days from the date of this order; and
4. This matter is referred back to the assigned magistrate judge for further proceedings
consistent with this order.
DATED: January 17, 2023.

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