Nickerson v. Broomfield et al

Filing 159

ORDER OF SERVICE. Signed by Judge Edward J. Davila on 3/7/2025. (crr, COURT STAFF) (Filed on 3/7/2025)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF). A copy of this Order was mailed to Pltf Kramer

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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IN RE CIM-SQ TRANSFER CASES

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Case No. 5:20-cv-06326-EJD

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United States District Court
Northern District of California

ORDER OF SERVICE

This Document Relates To:

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24-cv-02417-EJD; Kramer v. Broomfield

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INTRODUCTION

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Plaintiff, a California prisoner, filed a pro se civil rights complaint alleging that defendants

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violated his rights under the Eighth Amendment and the California constitution by transferring

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over 100 inmates, some of whom were infected with COVID-19, from the California Institution

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for Men (CIM) to San Quentin State Prison (SQSP) 1 in May 2020. Dkt. No. 1 at 6. The case is

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now before the Court for screening pursuant to 28 U.S.C. § 1915A(a), and service of the

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complaint on defendants is ordered. Plaintiff will be granted leave to proceed in forma pauperis

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by separate order.

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This case has been consolidated with cases in this district related to the 2020 prisoner

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transfer and related to the first case filed, No. 5:20-cv-06326-EJD, which now has the caption “In

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Re CIM-SQ Transfer Cases.” Pro se prisoner cases that are part of the consolidated matter are

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stayed except for the purposes of service. Service shall therefore proceed in plaintiff’s case as

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SQSP is now called the San Quentin Rehabilitation Center. The former name is used in this
Order for clarity.

United States District Court
Northern District of California

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ordered below, but the case will remain stayed for all other purposes. The docket for Case No. 24-

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cv-02417 and all other individual dockets have been closed. If plaintiff wishes to file any

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motions, he must file them in Case No. 5:20-cv-06326-EJD and include his original case number,

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No. 24-cv-02417, on the left side of the heading.

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of

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the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

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may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id.

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§ 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon
which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to
state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to
provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must
be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to
state a claim for relief that is plausible on its face.” Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a
right secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).
If a court dismisses a complaint for failure to state a claim, it should “freely give
leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to
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deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant,

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repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the

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opposing party by virtue of allowance of the amendment, [and] futility of amendment.”

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Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).

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United States District Court
Northern District of California

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LEGAL CLAIMS
Plaintiff names the following defendants:

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1. Ronald Broomfield, Acting Warden of SQSP

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2. CDCR Secretary Ralph Diaz

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3. J. Clark Kelso, Federal Receiver

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4. Gavin Newsom, Governor

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5. Clarence Cryer, CEO (medical) at SQSP

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6. San Quentin Chief Medical Executive Dr. Alison Pachynski

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7. San Quentin Chief Physician and Surgeon, Dr. Shannon Garrigan

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8. Kathleen Allison, Director of CDCR

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9. Dr. Joseph Bink, CCHCS Director

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10. Dean Borders, CIM Warden

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11. CDCR Medical Director R. Steven Tharratt

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12. Louie Escobell, Health Care Chief Executive Officer at CIM

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Dkt. No. 1 at 2-3. Plaintiff alleges that CIM was one of the first California prisons to

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experience a COVID outbreak. Dkt. No. 1 at 6. Defendants were involved in transferring

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individuals from CIM to SQSP in May 2020. Id. The transfer was rushed, the prisoners were not

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adequately tested, and the arriving prisoners were not quarantined at SQSP despite showing

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symptoms of COVID. Id. at 6-7, 12. Prisoners were not adequately spaced out on the busses. Id.

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at 12. The virus began coursing its way through the prison.

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Plaintiff and his cellmate were tested on June 23, 2020; plaintiff’s results were negative

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while his cellmate’s were positive. Dkt. No. 1 at 8. Plaintiff requested a cell move from both

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custody and medical staff, but was denied. Id. He continued to test negative for COVID on July

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6, but experienced “a noticeable change in his stomach” that he believes might have been COVID.
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United States District Court
Northern District of California

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Id. He does not know, because San Quentin healthcare refused to conduct blood tests to verify if

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he had contracted COVID. Id.

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Plaintiff seeks compensatory and punitive damages. Id. at 16.

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Liberally construed, plaintiff’s allegations state a plausible claim for deliberate

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indifference to plaintiff’s safety, in violation of the Eighth Amendment, against the majority of the

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named defendants in their individual capacities. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Plaintiff’s claims cannot proceed against the governor. While the allegations state

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plausible claims against the majority of the named defendants based on their described positions

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within CDCR or at specific prisons, the complaint does not state a plausible claim against

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Governor Newsom because he is not a CDCR official who would plausibly have been involved in

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the decisions surrounding the transfer. Liability may be imposed on an individual defendant under

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§ 1983 only if plaintiff can show that the defendant proximately caused the deprivation of a

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federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of

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Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional

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right within the meaning of § 1983 if he does an affirmative act, participates in another’s

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affirmative act or omits to perform an act which he is legally required to do, that causes the

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deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633. Plaintiff’s claim against

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Governor Newsom will therefore be dismissed without prejudice.

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Nor can his claims proceed against defendant Kelso. The Court dismisses defendant Kelso

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on the basis of his quasi-judicial immunity. See Harris v. Allison, No. 20-CV-09393-CRB, 2022

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WL 2232526, at *1 (N.D. Cal. June 7, 2022) (dismissing Kelso from a case raising materially

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similar allegations as those made here); In re CIM-SQ Transfer Cases, No. 22-mc-80066-WHO at

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Dkt. No. 63 (N.D. Cal. July 21, 2022) (same); Patterson v. Kelso, 698 F. App’x 393, 394 (9th Cir.

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2017) (“Kelso is entitled to quasi-judicial immunity” with respect to negligence claim).

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Nor can plaintiff’s claims proceed against Steven Tharratt. The Court understands, as the

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Attorney General has represented to another court in this district, that “[t]o the best of [the

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Attorney General’s] knowledge, [Dr.] Tharratt died on August 20, 2020.” See Case No. 3:20-cv-

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07845-CRB, Dkt. Nos. 37, 37-1. The Court takes judicial notice pursuant to Federal Rule of
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Evidence 201 of the filing in that case, which attaches Dr. Tharratt’s obituary published on the

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California Department of Corrections and Rehabilitation website on October 6, 2020, available at

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https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt-longtime-cchcs-medical-

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director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th

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Cir. 2006) (federal courts “may take judicial notice of court filings and other matters of public

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record”); Bullock v. Johnson, No. CV 15-2070 PA (AS), 2018 WL 5880736, at *13 n.19 (C.D.

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Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15-2070 PA (AS), 2018 WL

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4791089 (C.D. Cal. Oct. 3, 2018) (taking judicial notice of CDCR obituary).

United States District Court
Northern District of California

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Dr. Tharratt’s death therefore preceded the filing of this action on January 2, 2024. See

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Dkt. No. 1. “[A] party cannot maintain a suit on behalf of, or against, or join, a dead person, or in

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any other way make a dead person (in that person’s own right, and not through a properly

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represented estate or successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase

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Bank, N.A., 957 F.3d 943, 955 (9th Cir. 2020). Defendant Tharratt was therefore not an

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appropriately named Defendant at the onset of this litigation and will be dismissed.

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Nor can plaintiff’s claims proceed against the overinclusive variety of unnamed individuals

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whom plaintiff refers to. Plaintiff may later move to amend his complaint to name additional

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defendants.
CONCLUSION

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Defendant Tharratt is dismissed.

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2.

Defendant Kelso is dismissed.

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3.

Defendant Newsom is dismissed.

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The Court orders that service on the following defendants shall proceed under the

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California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for civil

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rights cases from prisoners in the CDCR’s custody:

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1. Ronald Broomfield

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2. Ralph Diaz

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3. Clarence Cryer

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4. Alison Pachynski
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5. Shannon Garrigan

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6. Kathleen Allison

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7. Joseph Bink

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8. Dean Borders

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9. Louie Escobell
In accordance with the program, the clerk is directed to serve on the CDCR via email the

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following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report

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of E-Service Waiver form, and a summons. The clerk also shall serve a copy of this order on the

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Plaintiff.
No later than 40 days after service of this order via email on the CDCR, the CDCR shall

United States District Court
Northern District of California

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provide the court a completed CDCR Report of E-Service Waiver advising the court which

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defendant(s) listed in this order will be waiving service of process without the need for service by

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the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR

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also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney

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General’s Office which, within 21 days, shall file with the Court a waiver of service of process for

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the defendant(s) who are waiving service.
Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each

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defendant who has not waived service according to the CDCR Report of E-Service Waiver a

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USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies

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of this order, the summons and the operative complaint for service upon each defendant who has

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not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E-

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Service Waiver.

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All defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the

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cost of such service unless good cause can be shown for their failure to sign and return the waiver

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form.
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All communications by plaintiff with the Court must be served on defendants’

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counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard

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any document which a party files but fails to send a copy of to his opponent. Until defendants’

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counsel has been designated, plaintiff may mail a true copy of the document directly to

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defendants, but once defendants are represented by counsel, all documents must be mailed to

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counsel rather than directly to defendants.

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United States District Court
Northern District of California

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Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

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Court informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

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pending case every time he is moved to a new facility.

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Any motion for an extension of time must be filed no later than the deadline sought

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to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that

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he must include the case name and case number for this case on any document he submits to the

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Court for consideration in this case.

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14.

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defendants.

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The case will remain stayed for all purposes other than service of the complaint on

IT IS SO ORDERED.
Dated: March 7, 2025

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Edward J. Davila
United States District Judge

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