1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MARK DEWAINE KIDD, 11 Case No. 20-cv-08694-JCS (PR) Plaintiff, 12 v. ORDER DISMISSING COMPLAINT 13 WITH LEAVE TO AMEND RON BROOMFIELD, 14 Defendant. 15 Dkt. No. 15

16 17 INTRODUCTION 18 Plaintiff alleges that correctional staff at San Quentin State Prison fail to wear 19 masks and gloves, thereby increasing his chances of contracting COVID. As pointed out 20 in defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), these 21 allegations fail to state a claim for relief or tie responsibility to the sole defendant, Ron 22 Broomfield, the Warden of San Quentin. Accordingly, defendant’s motion to dismiss is 23 GRANTED. (Dkt. No. 15.) The complaint is DISMISSED with leave to file an amended 24 complaint on or before June 1, 2022. 25 Failure to file a proper amended complaint by June 1, 2022 will result in the 26 dismissal of this action under Federal Rule of Civil Procedure 41(b) for failure to 27 prosecute. 1 The parties have consented to magistrate judge jurisdiction for all purposes under 2

(c). (Dkt. Nos. 6 and 12.) 3 DISCUSSION 4 A. Standard of Review 5 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 6 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 7 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 10 Twombly,

). Furthermore, a court “is not required to accept legal 11 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 12 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754-55 13 (9th Cir. 1994). 14 To state a claim under

, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged violation was committed by a person acting under the 17 color of state law. See West v. Atkins,

(1988). 18 B. Legal Claims 19 Plaintiff alleges he has twice contracted COVID during the pandemic, throughout 20 which he has been housed at San Quentin State Prison. (Compl., Dkt. No. 1 at 3.) He 21 alleges he has seen correctional staff “walking around without wearing mask[s] while 22 passing out food or mishandling food with no gloves” which increases his chances of 23 catching COVID for a third time. (Id.) His complaint names Ron Broomfield, the Warden 24 of San Quentin, as the sole defendant, but his allegations do not mention Broomfield or 25 describe any act he took or tie him in any way to the alleged wrongs. 26 This is insufficient under pleading standards. A “complaint must contain sufficient 27 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 2 content that allows the court to draw the reasonable inference that the defendant is liable 3 for the misconduct alleged.”

(quoting Twombly,

). Furthermore, a court 4 “is not required to accept legal conclusions cast in the form of factual allegations if those 5 conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 6 Network,

(9th Cir. 1994). Because plaintiff has failed to allege any 7 facts linking responsibility to Broomfield or to anyone, he has failed to plead “factual 8 content that allows the court to draw the reasonable inference that the defendant is liable 9 for the misconduct alleged.” Iqbal,

. 10 Also, plaintiff has not alleged facts showing that the defendant had the requisite 11 state of mind to violate plaintiff’s Eighth Amendment rights. To show a violation of the 12 Eighth Amendment, a plaintiff must show (1) the deprivation alleged must be, objectively, 13 sufficiently serious, Farmer v. Brennan,

(1994) (citing Wilson v. Seiter, 14

(1991)), and (2) the prison official possesses a sufficiently culpable state 15 of mind,

(citing Wilson,

). In prison-conditions cases, the necessary 16 state of mind is one of “deliberate indifference.” Farmer,

. The allegations 17 contain nothing regarding the named defendant’s state of mind. 18 Accordingly, the complaint is DISMISSED with leave to file an amended complaint 19 in which he must state specific facts linking liability to a specific person or persons. 20 In composing his amended complaint, plaintiff should keep in mind the following. 21 “A person deprives another ‘of a constitutional right, within the meaning of section 1983, 22 if he does an affirmative act, participates in another’s affirmative acts, or omits to perform 23 an act which he is legally required to do that causes the deprivation of which [the plaintiff 24 complains].” Leer v. Murphy,

(9th Cir. 1988) (quoting Johnson v. 25 Duffy,

(9th Cir. 1978)). The inquiry into causation must be 26 individualized and focus on the duties and responsibilities of each individual defendant 27 whose acts or omissions are alleged to have caused a constitutional deprivation.

1 unless they were integral participants in the unlawful conduct. Keates v. Koile,

1228, 1241 (9th Cir. 2018). 3 Plaintiff must be mindful about naming as defendants persons who occupy 4 supervisory positions, such as defendant Broomfield. There is no respondeat superior 5 liability under § 1983. Taylor v. List,

(9th Cir. 1989). This means 6 that it is not enough that the supervisor merely has a supervisory relationship over the 7 defendants; the plaintiff must show that the supervisor “participated in or directed the 8 violations, or knew of the violations and failed to act to prevent them.”

Furthermore, 9 supervisor defendants are entitled to qualified immunity where the allegations against them 10 are simply “bald” or “conclusory” because such allegations do not “plausibly” establish the 11 supervisors’ personal involvement in their subordinates’ constitutional wrong. Iqbal, 556 12 U.S. at 676 (noting no vicarious liability under Section 1983 or Bivens actions). 13 Plaintiff may wish to state whether he has been vaccinated against COVID, as such 14 a fact is relevant in determining what risks plaintiff is facing. 15 Plaintiff is directed to file an amended complaint on or before June 1, 2022 to 16 correct these deficiencies. 17 CONCLUSION 18 Plaintiff is directed to file an amended complaint on or before June 1, 2022. The 19 amended complaint must include the caption and civil case number used in this order (20- 20 08694 JCS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. It 21 must address all deficiencies discussed above and appear on this Court’s form. Because an 22 amended complaint completely replaces the previous complaints, plaintiff must include in 23 his first amended complaint all the claims he wishes to present and all of the defendants he 24 wishes to sue. See Ferdik v. Bonzelet,

(9th Cir. 1992). Plaintiff may 25 not incorporate material from the prior complaint by reference. 26 If plaintiff does not file an amended complaint by June 1, 2022, or if the amended 27 complaint is insufficient, this suit will be dismissed under Federal Rule of Civil Procedure 1 It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 2 || informed of any change of address by filing a separate paper with the clerk headed “Notice 3 || of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 4 || for an extension of time to do so. Failure to comply may result in the dismissal of this 5 || action pursuant to Federal Rule of Civil Procedure 41(b). 6 The Clerk shall terminate all pending motions. 7 IT IS SO ORDERED. 8 || Dated: April 27, 2022 Zz Zoo Le C. SPERO 10 Chief Magistrate Judge 11 a 12

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