1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL MACKEY, Case No. 21-cv-09386-BLF

8 Plaintiff, ORDER OF SERVICE v. 9

10 K. ALLISON, et al., Defendants. 11

12 13 Plaintiff, an inmate at San Quentin State Prison (SQSP) formerly proceeding pro se, filed 14 an action pursuant to

alleging that Defendants violated his rights under the 15 Eighth Amendment by transferring over 100 inmates, some of whom were infected with COVID- 16 19, from the California Institution for Men (CIM) to SQSP in May 2020. Plaintiff is now 17 represented by counsel, and his complaint (Dkt. 1) is before the Court for screening pursuant to 28 18 U.S.C. § 1915A.1 Plaintiff will be granted leave to proceed in forma pauperis in a separate order. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 1 Plaintiff’s case, along with a number of other cases making similar claims about the May 2020 24 CIM-SQSP transfer, was assigned to the Honorable Judge William H. Orrick for the limited purpose of addressing common questions including whether Defendants are entitled to qualified 25 immunity or immunity pursuant to the Public Readiness And Emergency Preparedness (PREP) Act. See Dkt. No. 7. Judge Orrick ordered Defendants in this case on July 19, 2022 to show cause 26 why they should be entitled to a different conclusion than the order at Dkt. No. 59 in case No. 3:22-mc-80066-WHO addressing the common issues. Dkt. No. 13. Defendants specially 27 appeared to file a Notice in 3:22-mc-80066-WHO (Dkt. No. 71) indicating that Defendants had 1 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 2 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 3 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 4 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi,

989, 993 (9th Cir. 2020). 6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 7 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 8 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 9 grounds upon which it rests.’” Erickson v. Pardus,

(2007) (citations omitted). 10 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 11 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal,

, 677–78 (2009). 12 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 13 cause of action, or naked assertions devoid of further factual enhancement does not suffice.

14 To state a claim under

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

(1988). 18 B. Plaintiff’s Complaint 19 Plaintiff alleges that Defendants were involved in the decision to transfer over 100 20 inmates, some of whom were infected with COVID-19, from CIM to SQSP in May 2020. Dkt. 21 No. 1 at 9-10. He alleges that Defendants failed to take adequate safety precautions before, 22 during, and after the transfer, including failing to test the transferring prisoners or screen them for 23 symptoms at the appropriate times, failing to implement distancing measures on the transfer 24 busses, and failing to test and isolate the transferred prisoners upon arrival. Id. at 9-13. He alleges 25 that SQSP was an inappropriate prison for sending the prisoners, because it has “exceedingly poor 26 ventilation, extraordinary close living quarters, [and] inadequate sanitation due to its antiquated 27 infrastructure and overcrowding.” Id. at 9. 1 (CDCR) director Allison; CDCR Secretary Diaz; CDCR associate director Davis; SQSP warden 2 Ron Broomfield; federal receiver Kelso; SQSP chief medical officer Pachynski; California 3 Institute for Men (CIM)2 chief medical officer Escobell; CDCR director of medical services doctor 4 Steven Tharratt; SQSP Healthcare chief executive director Clarence Cryer; CIM warden Dean 5 Borders; and California Correctional Health Care Services (CCHCS) doctor Joseph Bick. Dkt. 6 No. 1 at 5-7. Plaintiff sues all Defendants in both their individual and official capacities. Id. at 7. 7 The complaint alleges that Defendant Kelso “ordered or helped facilitate the transfer . . . 8 with the approval of” Defendants Diaz, Allison, and Davis; that Defendants Escobell and Tharratt 9 ordered that the transferring prisoners not be retested the day before the transfer; that Defendant 10 Bick was “responsible for all transfer and testing protocols”; that Defendant Borders approved 11 the[] transfers of untested” prisoners; and that Defendant Davis, “with the approval of” Defendants 12 Allison and Bick, “decided to disregard the . . . social distancing guidelines” by placing more than 13 19 prisoners on each bus. Dkt. No. 1 at 9-10, 12. It alleges that Defendants Broomfield, Cryer, 14 and Pachynski “chose not to implement . . . basic safety measures” to prevent spread of the virus 15 upon the arrival of the transferring prisoners at SQSP. Id. at 13. It also alleges that Defendants 16 Diaz and Allison were “well aware of the concerns raised” regarding the transfer. Id. at 12. 17 Plaintiff alleges that he incurred COVID-19 symptoms after the transfer and continues to 18 experience ongoing symptoms. Id. at 14. He states he requested his medical file to no avail. Dkt. 19 No. 1-1 at 59. 20 Plaintiff also attaches a report by the Office of the Inspector General titled COVID-19 21 Review Series Part Three: California Correctional Health Care Services and the California 22 Department of Corrections and Rehabilitation Caused a Public Health Disaster at San Quentin 23 State Prison When They Transferred Medically Vulnerable Incarcerated Persons from the 24 California Institution for Men Without Taking Proper Safeguards. See Dkt. No. 1-1 at 10. 25 Plaintiff alleges the above actions and inactions violated the Eighth Amendment. He seeks 26 declaratory relief, injunctive relief, compensatory and punitive damages, and costs of suit. 27 1 C. Legal Claims 2 Liberally construed, the allegations regarding the May 2020 transfer of CIM inmates into 3 SQSP state cognizable Eighth Amendment claims. Farmer v. Brennan,

(1994) 4 (prison official is deliberately indifferent if he or she knows that prisoner faces substantial risk of 5 serious harm and disregards that risk by failing to take reasonable steps to abate it). 6 Plaintiff is suing each defendant individually and “in his [or her] official capacity.” Dkt. 7 No. 1 at 7. The Eleventh Amendment to the U.S. Constitution bars a person from suing a state in 8 federal court without the state’s consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465

(1984). State officials acting in their official capacities are not “persons” under 10 Section 1983 because “a suit against a state official in his or her official capacity is not a suit 11 against the official but rather is a suit against the official’s office.” See Will v. Mich. Dep’t of 12 State Police,

(1989). Thus, such a suit is therefore no different from a suit against 13 the state itself.

Accordingly, the Eleventh Amendment bars Plaintiff’s claims for monetary 14 relief to the extent that they are based on acts by Defendants in their official capacities. See

15 The Court DISMISSES Plaintiff’s claims for damages against Defendants in their official 16 capacities. 17 The Court also DISMISSES Plaintiff’s claims against defendant Tharratt. The Court 18 understands, as the Attorney General has represented to another court in this district, that “[t]o the 19 best of [the Attorney General’s] knowledge, [Dr.] Tharratt died on August 20, 2020.” See Case 20 No. 3:20-cv-07845-CRB, Dkt. No. 37, 37-1. The Court takes judicial notice pursuant to Federal 21 Rule of Evidence 201 of the filing in that case, which attaches Dr. Tharratt’s obituary published on 22 the California Department of Corrections and Rehabilitation website on October 6, 2020, 23 available at https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt-longtime-cchcs- 24 medical-director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

, 746 25 n.6 (9th Cir. 2006) (federal courts “may take judicial notice of court filings and other matters of 26 public record”); Bullock v. Johnson, No. CV 15-2070 PA (AS),

, at *13 n.19 27 (C.D. Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15-2070 PA (AS), 2018 1 Dr. Tharratt’s death therefore preceded the filing of this action on December 6, 2021. “[A] 2 party cannot maintain a suit on behalf of, or against, or join, a dead person, or in any other way 3 make a dead person (in that person’s own right, and not through a properly represented estate or 4 successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase Bank, N.A.,

943, 955 (9th Cir. 2020). Dr. Tharratt was therefore not an appropriately named Defendant at the 6 onset of this litigation. If Plaintiff wishes to proceed with a claim against the Estate of Dr. 7 Tharratt, he may file an amended complaint within 28 days of the date of this Order. 8 CONCLUSION 9 For the foregoing reasons, the Court orders as follows. 10 1. The Court DISMISSES Defendant Tharratt. 11 2. If Plaintiff chooses to file a first amended complaint (“FAC”) naming the Estate of 12 Dr. Tharratt, he must file the FAC within twenty-eight (28) days of the date of this Order. The 13 FAC must include the caption and civil case number used in this order, 21-cv-09386-BLF, and the 14 words “FIRST AMENDED COMPLAINT” on the first page. Plaintiff must use the Court’s 15 complaint form and answer all the questions on the form in order for the action to proceed. 16 Because the FAC completely replaces the previous complaint, Plaintiff must include in his FAC 17 all the claims he wishes to present. Plaintiff may not incorporate material from the prior 18 complaints by reference. 19 3. The Court DISMISSES Plaintiff’s claims for damages based on Defendants’ 20 actions in their official capacity, as barred by the Eleventh Amendment. 21 4. In light of the parties’ stipulated dismissal of Defendant Clark Kelso (Dkt. No. 14), 22 the Court DISMISSES Defendant Kelso with prejudice. 23 5. The Court ORDERS that service on the following CDCR Defendants shall proceed 24 under the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program 25 for civil rights cases from prisoners in the CDCR’s custody: 26 a. CDCR Director Allison; 27 b. CDCR Secretary Diaz; 1 d. SQSP warden Ron Broomfield; 2 e. SQSP chief medical officer Pachynski; 3 f. CIM chief medical officer Escobell; 4 g. SQSP Healthcare chief executive director Clarence Cryer; 5 h. CIM warden Dean Borders; and 6 i. CCHCS doctor Joseph Bick 7 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 8 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 9 of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order on the 10 Plaintiff. 11 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 12 provide the court a completed CDCR Report of E-Service Waiver advising the court which 13 defendant(s) listed in this order will be waiving service of process without the need for service by 14 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 15 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 16 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 17 a waiver of service of process for the defendant(s) who are waiving service. 18 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 19 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 20 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 21 of this order, the summons and the operative complaint for service upon each defendant who has 22 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 23 Service Waiver. 24 6. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 25 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 26 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 27 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 1 form. 2 7. This Court will issue a scheduling order for summary judgment or other dispositive 3 motion briefing after resolution of the common issues in the 22-mc-80066-WHO matter. See Dkt. 4 7. 5 8. All communications by Plaintiff with the Court must be served on Defendants’ 6 || counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 7 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 8 counsel has been designated, Plaintiff may mail a true copy of the document directly to 9 Defendants, but once Defendants are represented by counsel, all documents must be mailed to 10 || counsel rather than directly to Defendants. 11 9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 12 || Court informed of any change of address and must comply with the Court’s orders in a timely 13 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 14 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 15 pending case every time he is moved to a new facility. 16 10. Any motion for an extension of time must be filed no later than the deadline sought 3 17 to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 18 || he must include the case name and case number for this case on any document he submits to the 19 || Court for consideration in this case. 20 21 IT IS SO ORDERED. 22 || Dated: August 31, 2022 23

BETH LABSON FREEMAN 25 United States District Judge 26 27 28