Edwards v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN EDWARDS, Case No.: 3:21-cv-1157-DMS-WVG CDCR #V-17007, 12 1) SCREENING COMPLAINT Plaintiff, 13 PURSUANT TO 28 U.S.C. § 1915A v. 14 AND MARCUS POLLARD, Warden; 15 B.D. PHILLIPS, Associate Warden; 2) DIRECTING CLERK OF COURT 16 D. LEWIS, Associate Warden; TO ISSUE A SUMMONS PURSUANT EDGAR GARCIA, Facility Captain, 17 TO Fed. R. Civ. P. 4(b) Defendants. 18 19 20 Plaintiff Allen Edwards, currently incarcerated at Richard J. Donovan Correctional 21 Facility (“RJD”) in San Diego, California, is proceeding pro se in this case pursuant to 42 22 U.S.C. § 1983. 23 I. Procedural Background 24 Together with his Complaint, Plaintiff filed a Motion to Proceed In Forma Pauperis 25 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On July 29, 2021, the Court 26 denied Plaintiff’s Motion because the financial affidavits he submitted in support failed to 27 demonstrate he was unable to pay civil filing fees and dismissed the case based on his 28 failure to satisfy 28 U.S.C. § 1914(a)’s fee requirement. However, the Court granted 1 Plaintiff leave to re-open his case by paying the full $402 fee by September 20, 2021. Id. 2 at 5‒6. Plaintiff was also cautioned that if he elected to proceed by paying the fee, his 3 Complaint would nevertheless be subject to a mandatory initial screening pursuant to 28 4 U.S.C. § 1915A. See id. at 5 n.4. Plaintiff has since paid the filing fee. See ECF No. 9, 5 Receipt No. CAS131537. 6 II. Initial Screening 7 A. Standard of Review 8 Plaintiff’s Complaint is subject to preliminary review because he is a prisoner and 9 seeks “redress from a governmental entity or officer or employee of a governmental 10 entity.” See 28 U.S.C. § 1915A(a). Section 1915A “mandates early review—‘before 11 docketing [] or [] as soon as practicable after docketing’—for all complaints ‘in which a 12 prisoner seeks redress from a governmental entity or officer or employee of a governmental 13 entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. 14 § 1915A(a)). The required screening provisions of § 1915A apply to all prisoners, no 15 matter their fee status, who bring suit against a governmental entity, officer, or employee. 16 See, e.g. Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 17 “On review, the court shall identify cognizable claims or dismiss the complaint, or 18 any portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state 19 a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant 20 who is immune from such relief.” 28 U.S.C. § 1915A(b); Olivas v. Nevada ex rel. Dept. 21 of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017). “The purpose of § 1915A is ‘to ensure that 22 the targets of frivolous or malicious suits need not bear the expense of responding.’” 23 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 24 B. Discussion 25 Plaintiff alleges RJD’s Warden Pollard, Associate Wardens Phillips and Lewis, and 26 Facility Captain Garcia violated his Eighth Amendment rights when they placed other 27 inmates infected with CoVID-19 in his housing unit, ignored public health orders, failed to 28 adopt social distancing and other cleansing measures, and neglected to enforce staff mask 1 mandates. As a result, Plaintiff contracted the virus on December 8, 2020, claims he was 2 provided no medical treatment or assistance after he became ill and “was left for dead in 3 [his] cell.” See Compl., ECF No. 1 at 2‒5. Plaintiff seeks injunctive relief “from ongoing 4 deliberate indifference towards exposure to CoVID-19,” as well as unspecified amounts of 5 compensatory and punitive damages. Id. at 9. 6 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” 7 U.S. Const. Amend. VIII. In order to state a plausible Eighth Amendment claim for relief, 8 a Plaintiff must allege facts sufficient to show that Defendants acted with ‘deliberate 9 indifference.’” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016); 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A prison official acts with ‘deliberate 11 indifference ... only if the [prison official] knows of and disregards an excessive risk to 12 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 13 Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other 14 grounds by Castro, 833 F.3d at 1076. “Under this standard, the prison official must not 15 only ‘be aware of facts from which the inference could be drawn that a substantial risk of 16 serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting Farmer 17 v. Brennan, 511 U.S. 825, 837 (1994)). Prison officials have a duty to protect inmates from 18 communicable diseases. See e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (finding 19 prison officials may not “be deliberately indifferent to the exposure of inmates to a serious, 20 communicable disease”); Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (affirming a 21 finding of an Eighth Amendment violation where a facility housed individuals in crowded 22 cells with others suffering from infectious diseases, such as Hepatitis and venereal disease, 23 and the individuals’ “mattresses were removed and jumbled together each morning, then 24 returned to the cells at random in the evening”); Andrews v. Cervantes, 493 F.3d 1047, 25 1050 (9th Cir. 2007) (recognizing a cause of action under the Eighth Amendment and 42 26 U.S.C. § 1983 for an alleged policy of not screening inmates for infectious diseases—HIV, 27 Hepatitis C, and Heliobacter pylori—and for housing contagious and healthy individuals 28 together during a known “epidemic of hepatitis C”); cf. Maney v. Hall, 516 F. Supp. 2d 1 1161, 1182 (D. Or. 2021) (“By prioritizing those working in correctional settings over 2 AICs [adults in custody] living in correctional settings, and by prioritizing those living and 3 working in other congregate care settings over AICs living in a congregate care setting, 4 Defendants have demonstrated deliberate indifference to the serious risk of harm faced by 5 AICs.”). 6 Plaintiff has alleged a plausible Eighth Amendment claim against Defendants 7 Pollard, Phillips, Lewis, and Garcia based on these precedents. See Iqbal, 556 U.S. at 678. 8 Specifically, Plaintiff claims he is “gravely mentally disabled,” and housed in a specialized 9 “EOP” program designed to treat and care for prisoners who are “unable to care for 10 themselves.” See Compl. at 5. He further claims to suffer from pre-existing conditions like 11 obesity, asthma, and other “respiratory issues, all of which increased [his] risk of death” 12 should he contract CoVID-19. Id. at 3. Plaintiff contends Defendants were aware of his 13 health conditions and his risk of exposure due to an inmate grievance he filed “in December 14 2020,” and because “over a thousand prisoners and staff [had been] infected with CoVID- 15 19.” Id. Nevertheless, Plaintiff claims Defendants “refused to separate” infected prisoners 16 from non-infected prisoners in common areas, allowed “infected prisoners to reside in the 17 same housing unit” with uninfected prisoners, and failed to heed “public health orders” 18 regarding social distancing and mask mandates. Id. at 3, 4. As a result, Plaintiff claims he 19 contracted the disease on December 8, 2020, and suffered four days of chest pain, difficulty 20 breathing, bone aches, diarrhea, loss of appetite, and his sense of smell. Id. at 3. 21 Taken together and liberally construed, these allegations “are sufficient to warrant 22 ordering [Defendants] to file an answer” because they survive the “low threshold” required 23 to plead a plausible claim for relief under the Eighth Amendment. See 28 U.S.C. 24 § 1915A(b); Wilhelm v. Rotman, 680 F.3d 1113, 1116, 1121, 1123 (9th Cir. 2012) (noting 25 that screening pursuant to § 1915A “incorporates the familiar standard applied in the 26 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”). 27 However, it does not appear Plaintiff has requested that the Clerk issue a summons, 28 “present[ed] a summons to the clerk for signature and seal” pursuant to Fed. R. Civ. P. 1 || 4(b), or has yet to execute service of his Complaint upon any of the named Defendants. See 2 || Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (absent a specific request and court 3 || order that the U.S. Marshal effect service on their behalf pursuant to Fed. R. Civ. P. 4(c)(3), 4 ||persons who prepay civil filing fees “remain[] responsible for timely service.”); Omni 5 || Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a ... court may 6 ||exercise personal jurisdiction over a defendant, the procedural requirement of service of 7 ||Summons must be satisfied.’’). 8 Conclusion and Order 9 Accordingly, the Court sua sponte DIRECTS the Clerk of the Court to issue a 10 |/summons upon Defendants Pollard, Phillips, Lewis, and Garcia pursuant to Fed. R. Civ. P. 11 so that Plaintiff may execute service upon them as required by Fed. R. Civ. P. 4(c). 12 || Plaintiff must personally serve Defendants within 90 days of this Order, and file proof of 13 || that service pursuant to Fed. R. Civ. P. 4(/), or procure a waiver of personal service as to 14 of these Defendants pursuant to Fed. R. Civ. P. 4(d) within 90 days, or face dismissal 15 || without prejudice based on his failure to prosecute pursuant to Fed. R. Civ. P. 4(m).' 16 IT IS SO ORDERED. 17 || Dated: October 13, 2021 □ J \ 18 A yn . Hon. Dana M. Sabraw, Chief Judge 19 United States District Court 20 21 22 Because Plaintiff is not proceeding IFP pursuant to 28 U.S.C. § 1915, he remains 93 || responsible for having the summons and complaint served within the time allowed by Rule 4(m)” now that his pleading has survived the sua sponte screening required by 28 24 llU.S.C. § 1915A. See Fed. R. Civ. P. 4(c)(1). The Court has tolled Rule 4(m)’s time limit 95 ||for service while it conducted that screening. See Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit 26 |! courts of appeals have held that the [90]—day service period is tolled until the court screens 97 plaintiff's in forma pauperis complaint and authorizes service of process”) (citing Robinson vy. Clipse, 602 F.3d 605, 608 (4th Cir. 2010); Urrutia v. Harrisburg Cnty. Police 28 || Dep’t, 91 F.3d 451, 459 (3d Cir. 1996)).