(PC) Norris v. Youngblood ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 URIE NORRIS, ) Case No.: 1:21-cv-00704-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE 14 DONNY YOUNGBLOOD, et al., ) CLAIM FOR RELIEF ) 15 Defendants. ) (ECF No. 19) ) 16 ) 17 Plaintiff Urie Norris is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s first amended complaint, filed September 24, 2021. 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 24 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 25 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 26 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 27 U.S.C. § 1915A(b). 28 /// 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 4 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 6 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 8 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 10 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 11 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 12 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 13 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 15 II. 16 COMPLAINT ALLEGATIONS 17 The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua 18 sponte screening requirement under 28 U.S.C. § 1915. 19 Jane Doe, a nurse at the Kern County Jail, knew of Plaintiff’s pre-existing medical conditions. 20 Jane Doe tested Plaintiff for COVID-19 using a nasal swab and never sent the test results to Plaintiff. 21 Although jail staff were aware of the test results, no one would show Plaintiff the results. John Doe 22 denied Plaintiff his right to speak with medical. 23 Plaintiff is overweight and has pre-existing conditions of diabetes and mild respiratory failure. 24 Cancer also runs in Plaintiff’s immediate family on both sides. Plaintiff’s continued detention at the 25 Kern County Jail is a violation of the constitutional rights. The jail’s response to COVID-19 was 26 deliberate indifference to Plaintiff’s medical needs due to his pre-existing conditions. Plaintiff was at 27 a sufficiently heightened risk of severe complications such that a high risk of exposures translated into 28 high risk of irreparable injury without an injunction. 1 III. 2 DISCUSSION 3 A. City of Bakersfield and Kern County Sheriff Department as Defendants 4 To bring a § 1983 claim against a local governmental entity, a plaintiff must allege that the 5 execution of an official policy or unofficial custom inflicted the injury of which the plaintiff 6 complains. Monell v. Department of Social Services of New York, 436 U.S. 658, 694 (1978). The 7 plaintiff must show: (1) the plaintiff was deprived of a constitutional right; (2) the entity had a policy 8 or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional 9 right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. 10 San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 11 Plaintiff has failed to allege that the City of Bakersfield and the Kern County Sheriff’s 12 Department enacted or implemented any official policy or custom, or any facts to plausibly show a 13 causal link between any county policy or practice and the constitutional violations he alleges. Id. 14 Accordingly, Plaintiff fails to state a cognizable claim against these Defendants. 15 B. Medical Care 16 If Plaintiff was not a convicted inmate at the time of the allegations, the standards set forth 17 under the Fourteenth Amendment applies. The Fourteenth Amendment protects the rights of pretrial 18 detainees. Bell v. Wolfish, 441 U.S. 520, 545 (1979). “[U]nder the Due Process Clause, a detainee 19 may not be punished prior to an adjudication of guilt in accordance with due process of law.” Demery 20 v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (quoting Bell, 441 U.S. at 535). During the period of 21 detention prior to trial, a pretrial detainee may be properly subject to the conditions of the jail so long 22 as they do not amount to punishment. Bell, 441 U.S. at 536–37. 23 “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation, medical care, and 24 personal safety.’ ” Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting 25 Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state a claim of unconstitutional 26 conditions of confinement against an individual defendant, a pretrial detainee must allege facts that 27 show: (i) the defendant made an intentional decision with respect to the conditions under which the 28 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious 1 harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a 2 reasonable official in the circumstances would have appreciated the high degree of risk involved -- 3 making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, 4 the defendant caused the plaintiff’s injuries. Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th 5 Cir. 2018). 6 The Court acknowledges COVID-19 poses a substantial risk of serious harm. See Plata v. 7 Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID-19] 8 poses a substantial risk of serious harm” to prisoners.). However, in order to state a cognizable 9 Fourteenth Amendment claim, Plaintiff must provide more than generalized allegations that they have 10 not done enough to control the spread. See Booth v. Newsom, No. 2:20-cv-1562 AC P, 2020 WL 11 6741730, at *3 (E.D. Cal. Nov. 17, 2020); see also Blackwell v. Covello, No. 2:20-CV-1755 DB P, 12 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (failure to state a claim against warden for failure to 13 adequately control the spread of COVID-19 in the prison). 14 The mere failure to provide the COVID-19 test results (positive or negative) does not 15 demonstrate a constitutional violation for denial of adequate medical care. While Plaintiff contends he 16 suffers from pre-existing medical conditions which placed him at high risk of complications from 17 COVID-19, Plaintiff has failed to demonstrate that Jane or John Doe made an intentional decision to 18 failure to disclose the results of his COVID-19 test placing him at a substantial risk of suffering harm 19 or that Plaintiff suffered any harm as a result of the failure to provide the test results. Plaintiff’s 20 general allegations are insufficient to state a cognizable Fourteenth Amendment claim. In order to 21 state a cognizable claim, plaintiff must specifically identify a defendant's challenged conduct, explain 22 how such conduct is unreasonable under the circumstances, and describe how such conduct harmed 23 plaintiff. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (“A person ‘subjects’ another to the 24 deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, 25 participates in another's affirmative acts or omits to perform an act which he is legally required to do 26 that causes the deprivation of which complaint is made.”) Plaintiff alleges no facts against a properly 27 named defendant that suggest the defendant made an intentional decision with respect to the 28 conditions under which the Plaintiff was confined, which put Plaintiff at substantial risk of suffering 1 || serious harm, that the defendant did not take reasonable available measures to abate that risk and that 2 || Plaintiff was harmed. Accordingly, Plaintiff fails to state a cognizable claim for relief. 3 C. Further Leave to Amend 4 Because Plaintiff has previously been granted leave to amend, and his current complaint 5 || suffers from the same deficiencies as his prior complaint, the Court finds that further amendment 6 || would be futile. Zucco Partners v. LLC. v. Digimarce Corp., 552 F.3d 981, 1007 (9th Cir. 2009) 7 || (Where a “plaintiff has previously been granted leave to amend and has subsequently failed to add th 8 || requisite particularity to its claims, the district court's discretion to deny leave to amend is □□□□□□□□□□□□ 9 || broad.” (quotations and citations omitted). Therefore, the Court recommends that the instant action be 10 || dismissed, without leave to amend, for failure to state a cognizable claim for relief. 11 IV. 12 RECOMMENDATION 13 Based on the foregoing, it is HEREBY RECOMMENDED that the instant action be dismisses 14 || without further leave to amend, for failure to state a cognizable claim for relief. 15 This Findings and Recommendation will be submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 17 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 18 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 19 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 20 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 21 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. A (re 24 |! pated: _ October 13, 2021 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28