(PC) Witkin v. Chapnick et al

Filing 8

ORDER signed by Magistrate Judge Dennis M. Cota on 1/17/2023 DISMISSING 1 Complaint with leave to amend. Plaintiff shall file a first amended complaint within 30 days of the date of service of this order. (Huang, H)

Case 2:22-cv-01222-DAD-DMC Document 8 Filed 01/17/23 Page 1 of 6
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON WITKIN,

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No. 2:22-CV-1222-DAD-DMC-P

Plaintiff,
v.

ORDER

DR. CHAPNICK, et al.,
Defendants.

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Plaintiff, a former prisoner proceeding pro se, brings this civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s complaint, ECF No. 1.

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

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). This provision also applies if the plaintiff, as here, was incarcerated at the time the

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action was initiated even if the litigant was subsequently released from custody. See Olivas v.

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Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a

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complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon

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which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from

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such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure

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require that complaints contain a “short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply,
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concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to

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Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice

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of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121,

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1129 (9th Cir. 1996).

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In order to survive dismissal for failure to state a claim, a complaint must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp

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v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

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The mere possibility of misconduct will not suffice to meet this standard. See id. at 679. Because

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Plaintiff must allege with at least some degree of particularity overt acts by specific defendants

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that support the claims, vague and conclusory allegations fail to satisfy this standard.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiffs names the following Defendants (1) Chapnick, Chief Medical Executive

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Officer at Deuel Vocational Institution (“DVI”); (2) L. Bird, Warden at DVI; (3) Navarro,

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Lieutenant at DVI; (4) Holt, Sergeant at DVI; and (5) Does 1 through 25, state identities yet

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unknown. See ECF No. 1, pgs. 1-2. It is unclear whether Defendants are being sued in their

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individual or official capacity, or both. See id. Plaintiff alleges generally violations of the Eighth

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Amendment. See id., pg. 3.

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Specifically, Plaintiff alleges that he was transferred from California State Prison,

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Solano to DVI due to the extra space available at DVI, allowing for inmates, including Plaintiff,

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to be single-celled in order to practice social distancing. See id. Throughout 2020, Plaintiff was

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housed in a single-cell and tested negative for the Covid-19 virus on several occasions. See id.

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In January, 2021, Governor Newsom issued the Executive Stay-At-Home order to limit the
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transmission of the virus. See id. On January 7, 2021, Defendants Holt and Navarro met with the

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inmates housed in the F-Wing and informed them that they would be involuntarily moved to the

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G-Wing, which, Plaintiff alleges, was “in the midst of a Covid-19 outbreak” that “caused multiple

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inmates to be infected and quarantined” “on a daily basis.” Id., pgs. 3-4. Refusal to be moved to

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the G-Wing and accept cellmates would result in disciplinary action. See id., pg. 4. Defendants

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Holt and Navarro purportedly told Plaintiff they were to “disregard the executive order” and

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“they were expecting most, if not all, of the moved inmates to be infected with Covid-19,” that

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Defendants Chapnick and Bird understood the risk of the inmates contracting the virus from the

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move to G-Wing, but that “the chain of command required them to execute the orders” issued by

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Defendant Chapnick and Bird. Id. According to Plaintiff, those inmates who refused to move to

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the G-Wing were disciplined, but none were infected with the virus. See id. On January 9, 2021,

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Plaintiff was moved to G-Wing and given a cellmate. See id. Thereafter, Plaintiff asserts on

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January 19, 2022, he tested positive for the Covid-19 virus. 1 See id., pg. 3. Plaintiff seeks

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unspecified damages. See id., pg. 5.

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II. DISCUSSION

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer, 511 U.S. at

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832. The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized

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standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of

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confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347

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(1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter,

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sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th

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Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

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The Court is unclear whether, as alleged, Plaintiff contracted the virus in 2021 or almost
a year later, in 2022. See id., pg. 3.
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Under these principles, prison officials have a duty to take reasonable steps to

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protect inmate’ safety. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982), abrogated

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on other grounds by Sandin, 515 U.S. 472; Farmer, 511 U.S. at 833. Liability exists only when

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two requirements are met: (1) objectively, the prisoner was incarcerated under conditions

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presenting a substantial risk of serious harm; and (2) subjectively, prison officials knew of and

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disregarded the risk. See Farmer, 511 U.S. at 837. The very obviousness of the risk may suffice

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to establish the knowledge element. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

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Prison officials are not liable, however, if evidence is presented that they lacked knowledge of a

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safety risk. See Farmer, 511 U.S. at 844. The knowledge element does not require that the

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plaintiff prove that prison officials know for a certainty that the inmate’s safety is in danger, but it

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requires proof of more than a mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457,

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459 (9th Cir. 1986). Finally, the plaintiff must show that prison officials disregarded a risk.

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Thus, where prison officials actually knew of a substantial risk, they are not liable if they took

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reasonable steps to respond to the risk, even if harm ultimately was not averted. See Farmer, 511

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U.S. at 844.

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Generally, there is no question that Covid-19 is a serious communicable disease

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and poses a substantial risk of serious harm to those exposed. See e.g., Helling, 509 U.S. at 33

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(finding prison officials may not “be deliberately indifferent to the exposure of inmates to a

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serious, communicable disease”); see also Hutto v. Finney, 437 U.S. 678, 682-83 (1978);

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

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the Eighth Amendment and 42 U.S.C. § 1983 for an alleged policy of not screening inmates for

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infectious diseases and for housing contagious and healthy individuals together during a known

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“epidemic of hepatitis C”); see, e.g., Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020) (“The

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Covid-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory

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failure, or death.”); Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020) (“The Covid-19

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pandemic is ‘unprecedented,’ and no one questions that it poses a substantial risk of serious harm

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to [prison inmates].” (citation omitted)); Burgess v. Newsom, No. 1:21-cv-00077-SAB (PC),

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2021 WL 4061611, at *4 (E.D. Cal. Sept. 7, 2021) (stating “COVID-19 is a serious
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communicable disease”), report and recommendation adopted by 2021 WL 4975140 (E.D. Cal.

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Oct. 25, 2021).

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However, in this instance, Plaintiff does not satisfy the objective requirement that

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he was incarcerated under conditions presenting a substantial risk of serious harm to him.

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Plaintiff’s allegations that he was moved to G-Wing, required to accept a cellmate, and contracted

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the virus, whether in January 2021 or 2022, are speculative; Plaintiff does not allege facts to

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support a causal link between the move to G-Wing and contracting the virus, such as Plaintiff’s

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cellmate was infected, he was required to mix with others known to have the virus, or that others

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he was required to engage with failed to use proper safety precautions. Plaintiff’s allegations that

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the move caused his infection are speculative and conclusory.
Plaintiff also fails to satisfy the subjective requirement. The inquiry is not whether

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Defendants perfectly responded, complied with every guideline, or whether their efforts

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ultimately averted the risk; instead, the question is whether they reasonably responded or

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disregarded the risk. Plaintiff asserts that during the purported Covid-19 outbreak in G-Wing,

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infected inmates were transferred into quarantine on a daily basis. Thus, Defendants did not

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consciously disregard the risk of harm to Plaintiff because Defendants identified, tested, and

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moved to quarantine those inmates who had been infected with the virus, presumably to prevent

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infection to other inmates, including Plaintiff. Because Plaintiff has not alleged facts that the

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actions Defendants took in response to the alleged risk were not reasonable or that Defendants

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consciously disregarded any substantial risk of serious harm to Plaintiff, without more, Plaintiff

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fails to state a claim for a violation of Eighth Amendment. Plaintiff will be provided an

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opportunity to amend.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other

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grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). Therefore, if Plaintiff

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amends the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's

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amended complaint complete. See Local Rule 220.

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If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, Plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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Dated: January 17, 2023

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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