(PC)Lopez v. Covello et al

Filing 51

ORDER signed by District Judge Daniel J. Calabretta on 3/26/2024 ORDERING that 45 The Findings and Recommendations are REJECTED; and The matter is referred back to the Magistrate Judge to determine whether Defendant is entitled to qualified immunity, and whether summary judgement should be granted on that basis.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SALVADOR LOPEZ,

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Plaintiff,

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No. 2:21-cv-02380-DJC-EFB (PC)

v.

ORDER

SINGH PRAVEEN,

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Defendant.

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Plaintiff, a state inmate proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 1, 2023, Defendant filed a Motion for Summary Judgement. (Mot.

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Summ. J. (“MSJ”) (ECF No. 32)), which Plaintiff opposed (Opp’n (ECF No. 41)). On

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December 19, 2023, the Magistrate Judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen

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days. Plaintiff has filed objections to the findings and recommendations. (ECF No.

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49.)

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The Court has reviewed the file and declines to adopt the findings and
recommendations.
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A prison official violates the Eighth Amendment if they are deliberately

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indifferent to serious threats to the inmate’s safety. Farmer v. Brennan, 511 U.S. 825,

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832 (1994). As Defendant has conceded “’no one questions that [COVID-19] poses a

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substantial risk of serious harm’ to inmates . . . .” (Reply (ECF No. 41) (quoting Plata v.

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Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020))); see also Peyton v. Cates, No.

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1:22-cv-00151-JLT-EPG, 2022 WL 1430752, at *6 (E.D. Cal. May 5, 2022). The

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questions at issue here, instead, are whether Defendant’s actions or inactions

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demonstrated deliberate indifference to that risk of harm, and whether Defendant in

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fact caused Plaintiff harm. Peyton, 2022 WL 1430752, at *6.

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Plaintiff has provided sufficient evidence to create a genuine dispute of fact as

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to whether Defendant deliberately disregarded the risk of infecting Plaintiff with

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Covid-19. In his Declaration, Plaintiff attests that despite exhibiting Covid-19

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symptoms including coughing, runny nose, and red eyes, Defendant reported to work

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at the prison and worked in close proximity to Plaintiff without wearing proper

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protective equipment such as a face mask. (Opp’n, Ex. 1, Decl. of S. Lopez at 1–2.)

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Plaintiff and Defendant worked together on Friday November 13, 2020, and Monday

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through Wednesday November 16 through 18, 2020. (MSJ, Decl. of D. Santos, Exs. B

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and D (ECF No. 32-6).) On November 17, 2020, Defendant took a Covid-19 test which

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returned a positive result on either November 19 or 20, 2020, confirming that

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Defendant was infected with Covid-19 as of at least November 17, 2020. (Decl. of S.

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Lopez at 2; Opp’n., Ex. 3, Def.’s Resp. to Pl.’s Interrog. at 3.)

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Defendant attempts to shield himself by emphasizing the Covid-19 protocols

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put in place by Mule Creek State Prison and the fact that Defendant went on leave

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after receiving a positive test result. However, these facts only go toward whether the

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prison reasonably responded to a risk of harm, not whether Defendant personally

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disregarded the risk of harm.1 Plaintiff’s core allegations are that Defendant flouted

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Defendant’s reliance on the fact that Plaintiff receiving medical care after contracting Covid-19 is
similarly misplaced because, again, it goes to the facility’s response, not Defendant’s.
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the prison’s protocols and disregarded the risk of exposing Plaintiff to Covid before

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Defendant received a positive test result. While the prison required employees to

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submit a health survey every day, Plaintiff attests in his Declaration that Defendant said

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he was not reporting his symptoms because he did not want to be excluded from

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work. (Decl. of S. Lopez at 1–2.) Plaintiff also attests that Defendant did not wear a

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mask as required by the prison. (Id.) Further, even though there is no dispute that

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Defendant was testing in accordance with the protocol and abstained from work as

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soon as he received a positive result, California Department of Corrections and

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Rehabilitation guidance from the time warned employees that they could have an

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active infection and transmit the disease to others despite not yet having tested

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positive for Covid-19. (See MSJ, Decl. of A. Altschuler, Ex. A (ECF No. 32-10) at 2–7.)

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The same guidance warned prison employees of the risk of exposing another person

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to Covid-19 by failing to wear a mask or practice physical distancing. (Id.)

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These facts, if true, support an inference that Defendant knew or should have

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known of the risk of infecting another person with Covid-19 even before receiving a

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positive test, and the appropriate precautions to minimize that risk. “[K]nown

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noncompliance with generally accepted guidelines for inmate health strongly

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indicates deliberate indifference to a substantial risk of serious harm.” Shank v.

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Corizon Inc., No. CV-19-04638-PHX-ROS, 2020 WL 5628014, at *4 (D. Ariz. Sept. 2,

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2020) (quoting Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal.

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2015)); see, e.g., Ahlman v. Barnes, 445 F. Supp. 3d 671, 688–91 (C.D. Cal. 2020)

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(finding that the plaintiff had established both objective and subjective indifference

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where the defendant failed to comply with Centers for Disease Control and Prevention

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guidance despite being put on notice that the “failure to take certain precautionary

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measures would result in an increase in the spread of infections”).

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There is also sufficient evidence from which a reasonable jury could conclude it

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was more likely than not that Defendant caused Plaintiff to contract Covid-19. As

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stated above, Plaintiff and Defendant worked together in close proximity November
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16 through 18, 2020, and Defendant was infected with Covid-19 as of at least

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November 17, 2020. Plaintiff was moved into quarantine the same day Defendant’s

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Covid-19 test produced a positive result. (MSJ, Decl. of D. Santos (ECF No. 32-5) ¶ 2.)

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Defendant admitted in response to Plaintiff’s Requests for Admission that “on

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November 19, 2020 all the inmates who were assigned at Mule Creek State Prison

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Facility A canteen including Plaintiff where place (sic) on quarantine due to

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[Defendant’s] positive COVID-19 result.” (Opp’n, Ex. 4 at 3–4.). During his deposition,

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Plaintiff stated that he had started exhibiting Covid-19 symptoms shortly after being

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placed in quarantine. (MSJ, Dep. of S. Lopez (ECF No. 32-13) at 8–10.) Plaintiff was

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then tested for Covid-19 on November 23, 2020, which resulted in a positive result on

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November 27, 2020. (Id. at 11; MSJ, Decl. of S. Lopez, Supervising Health Records

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Tech, Ex. B (ECF No. 32-8).) Again, this means that Plaintiff was infected with Covid-19

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as of at least November 23, 2020, five days after being exposed by Defendant on

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November 17, 2020.

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These allegations are more concrete and specific than the “generalized

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allegations” found insufficient in cases cited by Defendant. For example, in Crittenden

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v. Diaz, the plaintiff failed to allege who exposed him to Covid-19, when he tested

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positive, and how the defendants were responsible. The court stated that if the

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plaintiff had alleged “he was exposed to inmates who were known to be infected with

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the virus shortly after [a prison transfer] and the prison failed to take safety measures

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to reduce Plaintiff's risk of exposure, then it [would be] more likely than not that the

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transfer was the cause.” No. 21-05805 BLF (PR), 2021 WL 5564797, at *2 (N.D. Cal.

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Nov. 29, 2021). Here Plaintiff has provided those specific circumstances, namely that

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Defendant had an active Covid-19 infection while he was working in close proximity to

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Plaintiff — thereby exposing Plaintiff to Covid-19 — and that Plaintiff contracted Covid-

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19 shortly after the exposure despite being almost immediately quarantined.

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Plaintiff’s allegations similarly go beyond a general complaint that a prison official had

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“not done enough to control the spread of COVID.” Richardson v. Allison, No. 1:214

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CV-00070-BAK, 2022 WL 1409835, at *6 (E.D. Cal. May 4, 2022), report and

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recommendation adopted, No. 1:21-CV-00070-JLT-BAK, 2022 WL 2080054 (E.D. Cal.

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June 9, 2022). Rather, Plaintiff points to specific procedures that Defendant allegedly

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failed to comply with to prevent infecting Plaintiff.

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Based on Plaintiff’s attestations and other evidence in the record, there are

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genuine disputes of fact with regard to whether Defendant knew or should have

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known that he had Covid-19 symptoms and risked transmitting the disease to Plaintiff,

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and whether Defendant took reasonable and appropriate action in light of those

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symptoms, or instead disregarded the risk of harm he posed to Plaintiff. There are

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also sufficient facts from which a reasonable jury could find causation. Summary

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judgement is therefore not appropriate.

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Since the Magistrate Judge concluded that Defendant was entitled to summary

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judgment on the merits of his Eighth Amendment deliberate indifference claim, the

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Magistrate Judge did not have the opportunity to determine whether the Defendant is

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entitled to qualified immunity. The Court will refer the matter back to the Magistrate

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Judge to make that determination in the first instance.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed December 19, 2023 (ECF No. 45),

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are rejected; and
2. The matter is referred back to the Magistrate Judge to determine whether

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Defendant is entitled to qualified immunity, and whether summary judgement should

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be granted on that basis.

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IT IS SO ORDERED.
Dated:

March 26, 2024
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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