(PC) Johnson v. Fernandez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 QUINNELL AVERY JOHNSON., Case No. 1:22-cv-01026-JLT-BAM (PC) 12 Plaintiff, ORDER FINDING PLAINTIFF MAY PROCEED ON COGNIZABLE CLAIMS 13 v. (ECF No. 1) 14 JOHN DOE #1, et al., THIRTY (30) DAY DEADLINE 15 Defendants. 16 17 Plaintiff Quinnell Avery Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, 19 filed on August 15, 2022, is before the Court for screening. (Doc. 1.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 4 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 5 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 9 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 10 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 11 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently housed at R.J. Donovan Correctional Facility in San Diego, California. The events in the complaint are alleged to have occurred while Plaintiff was housed 14 in California Substance Abuse and Treatment Facility (”SATF”). Plaintiff names as defendants: 15 (1) John Doe #1, Correction Officer, E-yard, and (2) John Doe #2, Correctional Officer, E-yard. 16 The Defendants are sued in their individual capacities. 17 On December 3, 2020, Plaintiff and his cellmate, Halton, were tested for Covid-19 18 (“Covid”). The tests came back on December 5, 2020. Plaintiff tested negative for Covid, and 19 Plaintiff’s cellmate tested positive for Covid. Cellmate Halton was called from his kitchen job 20 and returned to Plaintiff’s cell where Plaintiff was already located. When the cell door was 21 opened by the building’s control both officer, Plaintiff exited the cell and immediately asked the 22 floor officers, Defendants John Doe #1 and John Doe #2, “to reiterate his, and Frederick Halton’s 23 respective Covid-19 results.” Defendant John Doe #1 and John Doe #2 said that Plaintiff had 24 tested negative and his cellmate had tested positive. 25 Plaintiff asked if he could wait in the dayroom while they moved Plaintiff’s cellmate 26 Halton to quarantine. Defendants said that Plaintiff could not wait in the dayroom. Defendants 27 gave Plaintiff a direct order to go back into his cell with his Covid 19 positive cellmate. Plaintiff 28 1 had no option but to comply with the direct order because Defendants could otherwise use force 2 against Plaintiff. Plaintiff went back into the cell with his Covid positive cellmate. Plaintiff was 3 forced to wait in the cell with his Covid positive cellmate for well over three hours until cellmate 4 Halton was moved to quarantine. 5 As Plaintiff sat in the cell with his Covid positive cell mate, Defendants failed to provide 6 Plaintiff adequate personal protective equipment the entire time. Plaintiff was not given an N95 7 medical grade facemask, face shield, gloves, gown or any time of sanitizer or disinfectant. 8 Plaintiff was only given a prison manufactured cloth face mask. 9 On December 10, 2020, five days after being forced into the cell with his Covid positive 10 cellmate, Plaintiff began to develop many of the symptoms associated with Covid. Plaintiff 11 began to have a sore throat, fever, chills, body aches, headaches, fatigue, cough, brain fog, 12 confusion, nausea, vomiting, shortness of breath, runny nose, etc. 13 On December 14, 2020, Plaintiff was again tested for Covid. And the tests came back positive on December 16, 2020. 14 Plaintiff alleges violation of the Eighth Amendment by locking Plaintiff up with a 15 cellmate who was positive for Covid. As remedies, Plaintiff seeks declaratory relief, 16 compensatory and punitive damages. 17 III. Discussion 18 A. Deliberate Indifference to Conditions of Confinement/Failure to Protect 19 Plaintiff alleges an Eighth Amendment violation regarding conditions of 20 confinement/failure to protect. He challenges his contraction of COVID when he was placed in 21 a cell with a Covid positive cellmate. 22 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. 23 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 24 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 25 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with 26 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 27 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 28 1 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. 2 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 3 1981). 4 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 5 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious." Id. (internal 6 quotation marks and citation omitted). Second, “prison officials must have a sufficiently culpable 7 state of mind,” which for conditions of confinement claims, “is one of deliberate indifference.” 8 Id. (internal quotation marks and citation omitted). Prison officials act with deliberate 9 indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at 10 837. The circumstances, nature, and duration of the deprivations are critical in determining 11 whether the conditions complained of are grave enough to form the basis of a viable Eighth 12 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the 13 part of a prison official is not sufficient to establish liability, but rather, the official's conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 14 Extreme deprivations are required to make out a conditions of confinement claim, and 15 only those deprivations denying the minimal civilized measure of life's necessities are sufficiently 16 grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. 17 McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the deprivations are 18 critical in determining whether the conditions complained of are grave enough to form the basis 19 of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the prison official must 20 “know[ ] of and disregard[ ] an excessive risk to inmate health or safety....” Farmer, 511 U.S. at 21 837. Thus, a prison official may be held liable under the Eighth Amendment for denying humane 22 conditions of confinement only if he knows that inmates face a substantial risk of harm and 23 disregards that risk by failing to take reasonable measures to abate it. Id. at 837-45. 24 It is clear that COVID-19 poses a substantial risk of serious harm. See Plata v. Newsom, 25 445 F.Supp.3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID-19] poses a 26 substantial risk of serious harm” to prisoners.). The Court recognizes that “[p]risons present 27 unique concerns regarding the spread of this virus; by their very nature, prisons are confined 28 1 spaces unsuited for ‘social distancing.’” Evdokimow v. Doll, No. 4:21-CV-00261, 2021 WL 2 767554, at *6 (M.D. Pa. Feb. 26, 2021). 3 The transmissibility of the COVID-19 virus in conjunction with Plaintiff's living 4 conditions, which he alleges he was placed in a cell with a Covid positive inmate, are sufficient to 5 satisfy the objective prong, i.e., that Plaintiff was “incarcerated under conditions posing a 6 substantial risk of serious harm.” The pertinent question in determining whether Plaintiff states a 7 claim is whether Defendants demonstrated deliberate indifference to that risk of harm. The key 8 inquiry is not whether Defendants perfectly responded, complied with every CDC guideline, or 9 whether their efforts ultimately averted the risk; instead, the key inquiry is whether they 10 “responded reasonably to the risk.” See Stevens v. Carr, No. 20-C-1735, 2021 WL 39542, at *4 11 (E.D. Wis. Jan. 5, 2021); accord Benitez, v. Sierra Conservation Center, 1:21-CV-00370 BAM 12 (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021) (same); Sanford v. Eaton, No. 1:20-CV- 13 00792 BAM (PC), 2021 WL 3021447, at *8 (E.D. Cal. July 16, 2021) (same). Liberally construing the allegations, Plaintiff states a cognizable claim against Defendant 14 John Doe #1 and Defendant John Doe #2. Plaintiff tested negative for Covid and his cellmate 15 tested positive. When the cellmate was being returned into Plaintiff’s cell, Plaintiff asked the 16 officers, Defendant John Doe #1 and Defendant John Doe #2, to confirm the test results. Both 17 officers confirmed that Plaintiff tested negative and the cellmate tested positive. Defendant John 18 Doe #1 and Defendant John Doe #2 would not let Plaintiff wait in another location while the 19 positive cellmate was moved to quarantine, but instead forced Plaintiff back into the cell with a 20 Covid positive cellmate. Plaintiff was given minimal protections while Plaintiff was confined in 21 the cell with his positive inmate. These allegations are sufficient to state Defendant John Doe #1 22 and Defendant John Doe #2 acted with deliberate indifference when they know of and disregard 23 an excessive risk to inmate health or safety. By December 2020, it was common knowledge of 24 Covid, the severity of serious illness, and the ease of transmissibility. Plaintiff alleges that within 25 days after testing negative, then housed with a positive cellmate, Plaintiff tested positive for 26 Covid and became sick. 27 //// 28 1 B. Declaratory Relief 2 To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A 3 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 4 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 5 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 6 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 7 afford relief from the uncertainty and controversy faced by the parties.” United States v. 8 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns a 9 verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff's constitutional rights 10 were violated. Accordingly, a declaration that any defendant violated Plaintiff's rights is 11 unnecessary. 12 C. Unknown Defendants 13 The use of John Does in pleading practice is generally disfavored – but is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 14 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F.Supp.2d 1149, 1152 (E.D. Cal. 2008). 15 However, Plaintiff is hereby advised that the court cannot order service of a Doe defendant 16 because the United States Marshal cannot serve a Doe defendant. Plaintiff will be required to 17 identify him or her with enough information to locate the defendant for service of process. 18 Plaintiff will be given the “ ‘opportunity through discovery to identify the unknown (Doe) 19 defendants.’ ” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie, 629 20 F.2d at 642). Once the identify of a Doe defendant is ascertained, plaintiff must file a motion to 21 amend his complaint only to identify the identified Doe defendant so that service by the United 22 States Marshal can be attempted. However, the court will recommend that any Doe defendant 23 plaintiff fails to identify during the course of discovery be dismissed from this action. 24 IV. Conclusion and Order 25 Based on the above, the Court finds that Plaintiff’s complaint states cognizable claims 26 against Defendant John Doe #1 and John Doe #2 for deliberate indifference to conditions of 27 confinement/failure to protect in violation of the Eighth Amendment. 28 1 Accordingly, it is HEREBY ORDERED as follows: 2 1. This action proceed on Plaintiff’s complaint, filed on August 15, 2022 (ECF No. 3 1), against Defendant John Doe #1 and John Doe #2, Correctional Officers, E-yard 4 at SATF, for deliberate indifference to conditions of confinement/failure to protect 5 in violation of the Eighth Amendment, and 6 2. A separate order will issue regarding identification of Doe Defendants. 7 8 IT IS SO ORDERED. 9 Dated: August 26, 2022 /s/ Barbara A. McAuliffe _ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28