Case 2:21-cv-01921-CAS-JDE Document 63 Filed 11/04/22 Page 1 of 4 Page ID #:362

1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THEDFORD LEON KERSH, ) Case No. 2:21-cv-01921-CAS (JDE) ) 12 ) Plaintiff, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 JOSIE GASTELO, ) 16 ) ) Defendant. ) 17 18 Pursuant to

, the Court has reviewed the records and files 19 herein, including the first amended complaint (Dkt. 43, “FAC”), defendants’ 20 motion for judgment on the pleadings (Dkt. 57 “Mot.”), plaintiff’s opposition brief 21 (Dkt. 58 “Opp.”), defendants’ reply brief (Dkt. 28 “Reply”), the Report and 22 23 Recommendation of the United States Magistrate Judge (Dkt. 61, “Report”), and 24 petitioner’s Objections to the Report (Dkt. 62, “Objection”). Pursuant to 28 U.S.C. 25 § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo 26 review of the matters to which objections have been stated. Plaintiff’s assertions 27 and arguments have been reviewed carefully. The Court, however, concludes that 28 nothing set forth in the Objection or otherwise in the record for this case affects, Case 2:21-cv-01921-CAS-JDE Document 63 Filed 11/04/22 Page 2 of 4 Page ID #:363

1 alters, or calls into question the findings and analysis set forth in the Report. 2 Therefore, the Court concurs with and accepts the findings and recommendations 3 of the Magistrate Judge. 4 Plaintiff is a prisoner in the custody of the California Men’s Colony State 5 Prison (“CMC”). Plaintiff had previously filed a complaint that was dismissed by 6 this Court on April 6, 2022, dkt. 43. Presently before the Court is plaintiff’s first 7 amended complaint against defendants Josie Gastelo, former warden of CMC, and 8 D. Samuel, Chief Deputy Warden of CMC. In the first amended complaint, 9 plaintiff alleges that defendants violated his Eighth and Fourteenth Amendment 10 rights by failing to follow state and federal guidelines to reduce prison dorm 11 capacity to provide for six feet of distance between beds, for knowing of the 12 presence of black mold in dorm two, and for allowing plaintiff’s CMC grievance 13 appeal to expire (thereby precluding CMC from being required to respond to his 14 claims). See generally FAC. 15 Pursuant to Federal Rule of Civil Procedure 12(c), defendants moved for 16 judgment on the pleadings on the grounds that the FAC fails to state a 17 constitutional claim and that defendants are entitled to qualified immunity. See 18 Mot. Here, the Magistrate Judge recommends that defendants’ motion be granted 19 and the FAC be dismissed with prejudice on the basis that plaintiff fails to state a 20 claim. See generally Report. 21 Plaintiff’s Objection essentially centers on the basis that he be granted leave 22 to amend or the opportunity to conduct discovery against defendants, citing recent 23 24 expert testimony and orders in other COVID-19 prison litigation. See Objection at 25 3–6.1 26

1 Plaintiff also claims that because he only received the Magistrate Judge’s 27 Report by mail on the evening of Friday, September 9, 2022 with his objection due 28

2 Case 2:21-cv-01921-CAS-JDE Document 63 Filed 11/04/22 Page 3 of 4 Page ID #:364

1 The Court finds and concludes that plaintiff’s objections are without merit. 2 To start, judgment on the pleadings is proper if the moving party “clearly 3 establishes on the face of the pleadings that no material issue of fact remains to be 4 resolved and that [the moving party] is entitled to judgment as a matter of law.” 5 Hal Roach Studios v. Richard Feiner and Co., Inc.,

(9th Cir. 6 1989). Here, as the Magistrate Judge explains, “FAC does not articulate any 7 specific conduct by Defendants or explain how Defendants personally participated 8 in the decision to not reduce dorm capacity.” Id. at 11. “Rather, Plaintiff makes a 9 general allegation that Defendants, in their supervisory capacity as CMC’s 10 wardens, did not do enough to enforce social distancing and abate the spread of 11 COVID-19, causing him to contract COVID.” Id. (citing Burgess v. Newsom, 12

, at *3 (E.D. Cal. Sept. 7, 2021) (“Although [p]laintiff mentions 13 the inability to social distance, he has failed to allege the causal link between [the 14 warden] and the claimed constitutional violation which must be specifically 15 alleged.”), report and recommendation adopted,

(E.D. Cal. Oct. 16 25, 2021)). 17 Additionally, the Magistrate Judge noted that the FAC lists other reasonable 18 19 by Monday, September 12, 2022, that the prison’s closure of the law library over 20 that weekend constituted a violation of his equal protection and due process rights. 21 See Objection at 2. However, plaintiff did not request an extension of time, was 22 still able to file papers with the court, and “the facts remain that Plaintiff does have 23 access to the law library and the method of law library access is not an exceptional 24 circumstance unique to Plaintiff as it is common to many prisoners.” Mascrenas v. 25 Wagner, No. 19CV2014-WQH(BLM),

, at *3 (S.D. Cal. Aug. 3, 26 2020), reconsideration denied, No. 19CV2014-WQH(BLM),

27 (S.D. Cal. Sept. 10, 2020). 28 3 ase 2:21-cv-01921-CAS-JDE Document 63 Filed 11/04/22 Page 4of4 Page ID #:36

1 measures CMC implemented in response to COVID-19, such as quarantine, 2 || testing, and dorm-reconfiguration such that CMC’s inability to follow all 3 applicable CDC guidelines does not show that Defendants acted with deliberate 4 || indifference towards Plaintiffs health so long as they instituted reasonable 5 || measures designed to lower inmates’ risk of contracting COVID-19.”

at 11-12 6 (citing Hernandez v. Covello,

, at *4 (E.D. Cal. May 2, 2022)). 7 Any further amendment is futile here because even when taking the FAC’s 8 allegations of fact as true and construed in the light most favorable to plaintiff, ? plaintiff is unable to state a claim under the law. See also Mot. at 12 (“And, so far 10 as Defendants are aware, at the time Plaintiffs claims arose, there was no federal M case law requiring wardens to reduce dorm capacity to twenty persons—or by any 12 particular amount—in response to COVID-19.”). IS Having completed its review, the Court accepts the findings and 4 recommendations set forth in the Report. In accordance with the foregoing, the : Court GRANTS defendants’ motion for judgment on the pleadings and directs that

7 judgment be entered dismissing this action with prejudice. 18 |) Dated: November 4, 2022 taf 19 —__ hiruoten Uh 20 CHRISTINA A.SNYDER 1 United States District Judge 22 23 24 25 26 27 28