1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN ROBINSON, Case No. 21-cv-00972-RMI

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND

10 R. BROOMFIELD, Defendant. 11

12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under

. 14 He has been granted leave to proceed in forma pauperis and he has consented to the jurisdiction of 15 a magistrate judge. 16 DISCUSSION 17 Standard of Review 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer, or from an employee of a governmental entity. See 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss 21 any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, 22 or those which seek monetary relief from a defendant who is immune from such relief. Id. at 23 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 24

(9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the 26 claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement 27 need only give the defendant fair notice of the nature of the claim, and the grounds upon which it 1 factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 2 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do . . . [instead, the] [f]actual allegations must be enough to raise a right to 4 relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) 5 (citations omitted). A complaint, therefore, must proffer “enough facts to state a claim to relief that 6 is plausible on its face.”

. The Supreme Court has explained the “plausible on its face” 7 standard of Twombly as such: “[w]hile legal conclusions can provide the framework of a 8 complaint, they must be supported by factual allegations. When there are well-pleaded factual 9 allegations, a court should assume their veracity and then determine whether they plausibly give 10 rise to an entitlement to relief.” Ashcroft v. Iqbal,

(2009). 11 To state a claim under

, a plaintiff must allege two essential elements: (1) 12 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 13 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 14

(1988). 15 Legal Claims 16 Plaintiff states that he was infected with COVID-19 due to a transfer of other inmates to 17 San Quentin State Prison (“SQSP”) where he is incarcerated. 18 The Constitution does not mandate comfortable prisons, but neither does it permit 19 inhumane ones. See Farmer v. Brennan,

(1994). The treatment a prisoner 20 receives in prison and the conditions under which he is confined are subject to scrutiny under the 21 Eighth Amendment. See Helling v. McKinney,

(1993). The Amendment imposes 22 duties on these officials, who must provide all prisoners with the basic necessities of life such as 23 food, clothing, shelter, sanitation, medical care and personal safety. See Farmer,

; 24 DeShaney v. Winnebago County Dep't of Social Servs.,

(1989). 25 A prison official violates the Eighth Amendment when two requirements are met: (1) the 26 deprivation alleged must be, objectively, sufficiently serious, Farmer,

(citing 27 Wilson v. Seiter,

(1991)), and (2) the prison official possesses a sufficiently 1 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 2 proscription against cruel and unusual punishment. Estelle v. Gamble,

(1976); 3 McGuckin v. Smith,

(9th Cir. 1992), overruled on other grounds, WMX 4 Technologies, Inc. v. Miller,

(9th Cir. 1997) (en banc). A determination of a 5 “deliberate indifference” claim involves an examination of two elements: the seriousness of the 6 prisoner’s medical need and the nature of the defendant’s response to that need. Id. at 1059. 7 A serious medical need exists if the failure to treat a prisoner’s condition could result in 8 further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of 9 an injury that a reasonable doctor or patient would find important and worthy of comment or 10 treatment, the presence of a medical condition that significantly affects an individual’s daily 11 activities, or the existence of chronic and substantial pain are examples of indications that a 12 prisoner has a serious need for medical treatment. Id. at 1059-60. 13 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 14 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 15 it.

. The prison official must not only “be aware of facts from which the inference 16 could be drawn that a substantial risk of serious harm exists,” but “must also draw the inference.” 17

If a prison official should have been aware of the risk, but did not actually know, the official 18 has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of 19 Washoe,

(9th Cir. 2002). “A difference of opinion between a prisoner-patient 20 and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin 21 v. Oregon,

(9th Cir. 1981). In addition, a “mere delay of surgery, without 22 more, is insufficient to state a claim of deliberate medical indifference . . . [and] [a prisoner] would 23 have no claim for deliberate medical indifference unless the denial was harmful.” Shapely v. 24 Nevada Bd. Of State Prison Comm’rs,

(9th Cir. 1985). 25 In a § 1983 or a Bivens action – where employers and supervisors are not made to 26 automatically answer for the torts of their employees and subordinates – the term ‘supervisory 27 liability’ is a misnomer; and, each government official, his or her title notwithstanding, is only 1 544, and Rule 8 of the Federal Rules of Civil Procedure, that complainant-detainee in a Bivens 2 action failed to plead sufficient facts “plausibly showing” that top federal officials “purposely 3 adopted a policy of classifying post-September-11 detainees as ‘of high interest’ because of their 4 race, religion, or national origin” over more likely and non-discriminatory explanations). 5 A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in 6 the constitutional deprivation or (2) a sufficient causal connection between the supervisor’s 7 wrongful conduct and the constitutional violation. Henry A. v. Willden,

, 1003-04 8 (9th Cir. 2012). Even if a supervisory official is not directly involved in the allegedly 9 unconstitutional conduct, “[a] supervisor can be liable in this individual capacity for his own 10 culpable action or inaction in the training, supervision, or control of his subordinates; for his 11 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 12 indifference to the rights of others.” Starr v. Baca,

(9th Cir. 2011) (citation 13 omitted). The claim that a supervisory official “knew of unconstitutional conditions and ‘culpable 14 actions of his subordinates’ but failed to act amounts to ‘acquiescence in the unconstitutional 15 conduct of his subordinates’ and is ‘sufficient to state a claim of supervisory liability.’” Keates v. 16 Koile,

(9th Cir. 2018) (quoting Starr,

) (finding that 17 conclusory allegations that supervisor promulgated unconstitutional procedures which authorized 18 unconstitutional conduct of subordinates do not suffice to state a claim of supervisory liability). 19 In his brief complaint, Plaintiff states that in May 2020, 120 inmates were transferred to 20 SQSP from a different prison which led to an outbreak of COVID-19, in the course of which 21 Plaintiff was also infected. He states that he is still suffering side-effects as a result. The named 22 Defendants are the Secretary, the Undersecretary, the Appeals Coordinator, and the Health Care 23 Services Undersecretary of the California Department of Corrections and Rehabilitation 24 (“CDCR”), as well as the Warden and the Chief Medical Executive of SQSP. Plaintiff states that 25 Defendants are liable for failing to protect him. Plaintiff provides no other information and fails to 26 identify the actions or omissions of any specific defendants. Accordingly, the complaint must be 27 dismissed with leave to amend to provide more information. In an amended complaint, Plaintiff 1 or omissions violated his constitutional rights. He should present allegations regarding who was 2 || responsible for the transfer of the inmates, as well as explaining how the precautions taken by 3 specific Defendants at SQSP were inadequate and led to his infection. 4 CONCLUSION 5 1. The complaint is DISMISSED with leave to amend in accordance with the standards 6 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 7 this order is served and must include the caption and civil case number used in this order, and it 8 || must be entitled with the words, “AMENDED COMPLAINT,” on the first page. Because an 9 amended complaint completely replaces the original complaint, Plaintiff must include in it all the 10 claims he wishes to present. See Ferdik v. Bonzelet,

(9th Cir. 1992). He may 11 not incorporate material from the original complaint by reference. Failure to amend within the 12 || designated time may result in the dismissal of this case. 5 13 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 14 || wnformed of any change of address by filing a separate paper with the clerk entitled, “Notice of 3 15 Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 16 || may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 5 17 Procedure 41(b). 1g IT IS SO ORDERED. 19 Dated: March 30, 2021 20 Ml Z 21 R@BERT M. ILLMAN 22 United States Magistrate Judge 23 24 25 26 27 28