1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEX ISTOK ACUNA, Case No.: 21cv01910-LL-AGS CDCR #P-85538 ORDER: DISMISSING FIRST 12 AMENDED COMPLAINT FOR Plaintiff, 13 FAILURE TO STATE A CLAIM vs. PURUSANT TO 28 U.S.C. 14 § 1915(e)(2)(B) AND § 1915A(b) MARCUS POLLARD, Warden, R. 15 VARGAS, Deputy Warden, M. GLENN, B. [ECF No. 11] 16 HENDRICKS, HOWARD MOSELEY, S. GATES, STEADMAN, 17 Defendants. 18

19

20 I. INTRODUCTION 21 On October 29, 2021, Alex Istok Acuna (“Plaintiff” or “Acuna”), an inmate 22 currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”), located in San 23 Diego, California and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 24 § 1983.1 Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

(a). On January 20, 2022, the Court granted Plaintiff’s IFP motion and 26 27 1 The action was originally filed in the United States District Court for the Northern District 28 1 dismissed the complaint without prejudice for failure to state a claim pursuant to 28 U.S.C. 2 §§ 1915(e)(2) and 1915A(b). See ECF No. 7. The Court gave Plaintiff leave to file an 3 amended complaint. See id. at 10–11. Plaintiff filed a First Amended Complaint (“FAC”) 4 on March 7, 2022.2 ECF No. 11. 5 II. SCREENING PER

(e)(2)(B) AND 1915A(b) 6 A. Standard of Review 7 Plaintiff’s First Amended Complaint requires a pre-answer screening pursuant to 28

(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua sponte 9 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 10 to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 11

(9th Cir. 2000) (en banc) (discussing

(e)(2)); 12 Rhodes v. Robinson,

(9th Cir. 2010) (discussing 28 U.S.C. 13 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 14 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan,

, 907 n.1 (9th Cir. 2014) (citation omitted). 16 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman,

(9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 23 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 24

(2009) (internal quotation marks omitted); Wilhelm,

. 25

26 27 2 Due to an administrative error, the amended complaint was originally filed as a new case. Once the mistake was discovered, the Court ordered the amended complaint filed in this 28 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal,

. “Determining whether a complaint states a plausible claim for relief 4 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 5 experience and common sense.”

The “mere possibility of misconduct” or “unadorned, 6 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 7 standard. Id.; see also Moss v. United States Secret Serv.,

(9th Cir. 2009). 8 B. Plaintiff’s Allegations 9 Acuna alleges that on November 21, 2020, while he was incarcerated at RJD, a 10 fellow inmate, Sancho, complained of diarrhea. FAC ¶ 4, see also, Pl.’s Ex. B. As a result, 11 Sancho was moved into quarantine with other inmates who were positive for COVID, but 12 Sancho was not tested for COVID until three days later, at which time he was “negative.” 13 FAC ¶ 4. Sancho nonetheless remained in quarantine with other infected inmates until 14 December 5, 2020, when he was released and “mixed with the inmate population without 15 having undergone further screening” for COVID infection.

By December 10, 2020, 16 Sancho had developed a cough, and reported it to staff. Later that day he tested for positive 17 for COVID. Id.; see also Pl.’s Ex. A. Sancho was returned to quarantine. Id. at ¶ 5. 18 Acuna states that “following inmate Sancho’s removal into quarantine for the second 19 time, numerous inmates in the same pod began to show coronavirus symptoms.” Id. The 20 outbreak started in the six-man dorm where Sancho had been housed when he was first 21 released from quarantine on December 5, 2020. All five other inmates in Sancho’s dorm 22 eventually tested positive. See Pl.’s Exs. B–E. Acuna alleges the virus then spread to other 23 dorms in the unit. FAC ¶ 5. Ultimately, sixty-six inmates in the unit tested positive for 24 COVID. Acuna tested positive on December 16, 2021. Id. Acuna states that, at that time, 25 “none of the inmates that began to test positive were quarantined or isolated as required by 26 protocol.” Id. at ¶ 6. Inmates who had tested positive were released from quarantine after 27 14 days without first obtaining a COVID test to confirm they were no longer infected. Id. 28 at ¶ 3; see also Pl.’s Ex. C. 1 At some point after Acuna was infected, RJD officials “attempted to move infected 2 inmates as well as non-infected inmates into an open gym with poor ventilation” and with 3 bunks placed only three feet apart. Id. at ¶ 8. Acuna and several other inmates refused to 4 be relocated to the gym because they were concerned about being re-exposed to the virus. 5 Id.; see also Pl.’s Ex. G. Acuna was disciplined for his refusal to move to the gymnasium. 6 See Pl.’s Ex. G at 16, 18–19. Acuna filed several grievances alleging the COVID protocols 7 at RJD were insufficient and were contributing to the spread of COVID-19 at RJD, which 8 were denied. Id. at 1–25. Acuna also filed health care grievances in February, March and 9 April of 2021, stating that he was suffering from lingering effects of his COVID infection, 10 including fatigue, “brain fog” and nausea, but medical staff at RJD were not taking his 11 complaints seriously. FAC ¶ 10; see also Pl.’s Ex. G at 26–30. The grievances were denied. 12 Pl.’s Ex. G at 26, 31–35. 13 Acuna names seven defendants, Marcus Pollard, Howard Moseley, R. Vargas, B. 14 Hendricks, M. Glenn, Steadman and S. Gates. See FAC at 2–3. He seeks a declaratory 15 judgment, compensatory and punitive damages, and an injunction requiring RJD officials 16 to remove the “chrono” stating he refused to move to the RJD gym on December 28, 2020, 17 from his file. FAC at 9.

U.S.C. § 1983 19 “Section 1983 creates a private right of action against individuals who, acting under 20 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 21

(9th Cir. 2001). Section 1983 “is not itself a source of substantive 22 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 23 Graham v. Connor,

, 393‒94 (1989) (internal quotation marks and citations 24 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 25 secured by the Constitution and laws of the United States, and (2) that the deprivation was 26 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

(9th Cir. 2012). 28 1 D. Discussion 2 Plaintiff’s primary contention is that Defendants violated his Eighth Amendment 3 right to be free from cruel and unusual punishment when they were failed to protect him 4 from catching COVID by ineffectively enforcing health protocols. FAC ¶¶ 1, 10. Plaintiff 5 also asserts that Defendants were deliberately indifferent to his serious medical needs by 6 failing to adequately treat him after he became infected with COVID. Id. at ¶ 10. 7 1. Eighth Amendment Deliberate Indifference Standard 8 The Eighth Amendment prohibits the infliction of “cruel and unusual 9 punishments[.]” U.S. Const. amend. VIII. To state a plausible Eighth Amendment claim 10 for relief, a Plaintiff must allege facts sufficient to show that Defendants acted with 11 “deliberate indifference.” Castro v. Cnty. of Los Angeles,

(9th Cir. 12 2016); Iqbal,

. “A prison official acts with ‘deliberate indifference . . . only 13 if the [prison official] knows of and disregards an excessive risk to inmate health and 14 safety.’” Toguchi v. Chung,

(9th Cir. 2004) (quoting Gibson v. Cnty. 15 of Washoe,

(9th Cir. 2002)), overruled on other grounds by Castro, 16

. “Under this standard, the prison official must not only ‘be aware of facts 17 from which the inference could be drawn that a substantial risk of serious harm exists,’ but 18 that person ‘must also draw the inference.’” Toguchi,

(quoting Farmer v. 19 Brennan,

(1994)). Neither negligence nor gross negligence is actionable 20 under § 1983 in the prison context. See Farmer, 511 U.S. at 835–36, 836 n.4. 21 Prison officials have a duty to protect inmates from communicable diseases. See e.g., 22 Helling v. McKinney,

(1993) (finding prison officials may not “be 23 deliberately indifferent to the exposure of inmates to a serious, communicable disease”); 24 see also Hutto v. Finney,

, 682–83 (1978); Andrews v. Cervantes,

(9th Cir. 2007) (recognizing a cause of action under the Eighth Amendment 26 and

for an alleged policy of not screening inmates for infectious diseases 27 and for housing contagious and healthy individuals together during a known “epidemic of 28 hepatitis C”). And there is no question that COVID-19 is a serious communicable disease. 1 See, e.g., Wilson v. Williams,

(6th Cir. 2020) (“The COVID-19 virus 2 creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or 3 death.”); Plata v. Newsom,

, 559 (N.D. Cal. 2020) (“The COVID-19 4 pandemic is ‘unprecedented,’ and no one questions that it poses a substantial risk of serious 5 harm to [prison inmates].” (citation omitted)); Burgess v. Newsom, No. 1:21-cv-00077- 6 SAB (PC),

, at *4 (E.D. Cal. Sept. 7, 2021) (stating “COVID-19 is a 7 serious communicable disease”), report and recommendation adopted by,

4975140 (E.D. Cal. Oct. 25, 2021). 9 The Eighth Amendment also protects against deliberate indifference to a prisoner’s 10 serious medical needs. Wilson v. Seiter,

(1991); Estelle v. Gamble, 429

(1976). In the medical context, deliberate indifference in violation of the 12 Eighth Amendment exists when a prison official knows an inmate faces a substantial risk 13 of serious harm to his health and fails to take reasonable measures to abate the risk. Farmer, 14

; Toguchi,

. Specifically, a plaintiff must (1) show a serious 15 medical need by demonstrating that failure to treat a prisoner’s condition could result in 16 further significant injury or the unnecessary and wanton infliction of pain and (2) show the 17 defendant’s response to the need was deliberately indifferent. Jett v. Penner,

(9th Cir. 2006). Deliberate indifference to an inmate’s serious medical needs 19 may occur in two ways: either when prison officials deny, delay or intentionally interfere 20 with medical treatment, or by the way that prison physicians provide medical care. Estelle, 21 429 U.S. at 104–05; Lopez v. Smith,

(9th Cir. 2000) (en banc). 22 Deliberate indifference is shown by a “purposeful act or failure to respond to a prisoner’s 23 pain or possible medical need, and harm caused by the indifference.” Jett,

24 (quoting McGuckin v. Smith,

(9th Cir. 1992)). The defendants must 25 have known of, but disregarded, an excessive risk to the plaintiff's health. Farmer, 511 26 U.S. at 837. 27 28 1 2. Defendants Pollard and Moseley 2 Plaintiff alleges Pollard, then the Warden of RJD, “fail[ed] to provide a safe 3 environment” for inmates during the COVID outbreak and failed to “properly monitor 4 subordinate staff” to ensure that COVID safety protocols were being followed. FAC ¶¶ 12, 5 18. Similarly, he alleges Moseley, Associate Director for the California Department of 6 Corrections and Rehabilitation (“CDCR”), “fail[ed] to enforce and monitor the CDCR 7 medical [COVID] protocol.” Id. at ¶ 13. Acuna states his claims against both Pollard and 8 Moseley are “based on negligence” in failing to “ensure proper protocol was being 9 followed” and failing to “properly screen” for COVID among inmates and staff. Id. at 10 ¶¶ 12, 18. As noted above negligence is not actionable under § 1983 in the prison context. 11 See Farmer, 511 U.S. at 835–36, 836 n.4. To be liable in a failure to prevent harm situation, 12 the official must know of and disregard an excessive risk to inmate safety. See id. at 837. 13 Thus, to the extent Plaintiff bases his claims against Pollard and Moseley on negligence, 14 he fails to state an Eight Amendment claim. 15 Furthermore, a defendant is liable under

“only upon a showing of 16 personal participation by the defendant.” Farmer,

; see also Peralta v. 17 Dillard,

, 1085–86 (9th Cir. 2014) (en banc). “Because vicarious liability is 18 inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government- 19 official defendant, through the official’s own individual actions, has violated the 20 Constitution.” Iqbal,

. Therefore, to state a colorable Eighth Amendment 21 claim, a plaintiff must allege facts sufficient to show that each particular defendant was 22 deliberately indifferent; a defendant does not become liable for an Eighth Amendment 23 violation merely because a co-worker, supervisor, or subordinate was deliberately 24 indifferent. Starr v. Baca,

, 1206–07 (9th Cir. 2011). Specifically, to state a 25 claim of supervisory liability, a plaintiff must allege the supervising official “knew of 26 unconstitutional conditions and ‘culpable actions of his subordinates’ but failed to 27 act[, amounting] to an ‘acquiescence in the unconstitutional conduct of his subordinates.’” 28 Keates v. Koile,

(9th Cir. 2018). 1 Here, to the extent Acuna alleges staff failed to properly test Sancho before he was 2 released from quarantine or failed to properly manage the quarantining of specific inmates, 3 he has not stated a claim against Pollard and Moseley. Acuna alleges only that Pollard and 4 Moseley negligently failed to ensure the protocols put in place were followed by 5 subordinates. He fails to allege specific facts to show either Pollard or Moseley knew of 6 unconstitutional conditions and culpable actions of individual subordinates.3 See id.; see 7 also Cardenas-Ornelas v. Wickham, No. 2:21-cv-00030-APG-VCF,

, at 8 *12 (D. Nev. May 11, 2021) (concluding Plaintiff failed to allege facts sufficient to state a 9 claim of deliberate indifference by the warden and other supervisors for “fail[ure] to ensure 10 that [COVID] protocols put in place, such as medical observations, testing, and temperature 11 checks, were followed”). Therefore, the Court dismisses Acuna’s claims against Pollard 12 and Moseley for failure to state a claim upon which relief may be granted. 13 3. Defendant Vargas 14 Acuna alleges Vargas, a correctional officer at RJD, “became knowledgeable of the 15 seriousness of the coronavirus pandemic and attempt[ed] to force under threat that plaintiff 16 be moved into a gym that was completely unequipped to house inmates further threatening 17 plaintiff’s health.” FAC ¶ 14. He contends Vargas’ actions amounted to “professional 18 negligence.”

He also alleges Vargas failed “to provide adequate medical care. . . based 19 on negligence in properly screening staff.”

. As discussed above, neither 20 negligence nor gross negligence amount to deliberate indifference. Wood v. Housewright, 21

(9th Cir. 1990). Therefore, Plaintiff fails to state a claim against 22 Vargas. 23 24 25 3 At least one district court has acknowledged that the Center for Disease Control guidelines 26 during late 2020 did not require a negative test to designate an individual recovered from 27 COVID. See United States v. Pierre, No. 1:19-cr-00082-DAD-BAM,

, at *7, n.6 (E.D. Cal. Nov. 18, 2020) (“[T]he CDC guidelines apparently allow for 28 1 4. Defendants Hendricks and Glenn 2 Acuna alleges Glenn, CEO of the medical department at RJD, and Hendricks, Chief 3 Deputy Warden at RJD were deliberately indifferent to his medical needs. He contends 4 Glenn was deliberately indifferent when he “failed to establish proper housing and failed 5 to provide proper treatment and failing to order adequate follow-up treatment” after 6 Plaintiff contracted COVID. FAC ¶ 16. As for Hendricks, Acuna claims he was 7 deliberately indifferent when he “fail[ed] to address the reality of the crisis that plaintiff 8 was being forced to contend with and erroneously alleging that RJD was in compliance 9 with health care staff guidelines [and] was deliberately indifferent towards [his] rights for 10 adequate medical relief.”

. 11 To the extent Acuna alleges Glenn and Hendricks were deliberately indifferent to 12 his serious medical needs after he contracted COVID, he fails to allege sufficient facts to 13 state a claim. In the context of medical care, “[a] determination of ‘deliberate indifference’ 14 involves an examination of two elements: the seriousness of the prisoner’s medical need 15 and the nature of the defendant’s response to that need.” McGuckin,

; Jett, 16

. Here, the Court assumes COVID infection constitutes a serious medical 17 need. 18 Acuna, however, provides no specific facts as to what actions Glenn or Hendricks 19 took, or failed to take, with regard to treating Plaintiff after he contracted COVID; or what 20 actions were taken or not taken regarding whether RJD was “in compliance” with health 21 guidelines for inmates who contracted COVID. Acuna alleges only that after contracting 22 COVID, the health care services department attempted to “move infected inmates as well 23 as non-infected inmates into an open gym with poor ventilation” and with bunks only three 24 feet apart. FAC at ¶ 8. He fails, however, to indicate what actions Glenn and/or Hendricks 25 personally took or failed to take which resulted in deliberate indifference. As discussed 26 above, a plaintiff must plead facts which allege that a defendant, “through their own 27 individual actions, has violated the Constitution.” Iqbal,

. The conclusory 28 allegations contained in the FAC are insufficient to state a claim of supervisory liability. 1 Keates,

(quoting Starr,

) (finding that conclusory 2 allegations that supervisor promulgated unconstitutional procedures which authorized 3 unconstitutional conduct of subordinates do not suffice to state a claim of supervisory 4 liability). 5 5. Defendant Steadman 6 Acuna alleges Steadman, a licensed vocational nurse, was deliberately indifferent to 7 his serious medical needs. FAC ¶ 15. Acuna alleges only that Steadman “ignored [his] 8 medical condition” after Acuna became infected with COVID and denied him 9 “professional medical attention.” Id. at ¶¶ 15, 18. To the extent Plaintiff contends Steadman 10 failed to provide medical care to him after he became ill with COVID, he has failed to 11 allege specific facts to sufficiently state a claim. For instance, Acuna does not include any 12 information regarding what Steadman did or did not do that amounted to inadequate 13 medical care.4 Such generalized and conclusory allegations are insufficient to state a claim 14 for deliberate indifference. Iqbal,

(stating a court is “not bound to accept 15 as true a legal conclusion couched as a factual allegation”). 16 6. Defendant Gates 17 Finally, Acuna alleges Defendant Gates, the Health Care Appeals Coordinator, 18 failed “to provide adequate medical care” and failed to ensure he was not “adversely treated 19 due to contracting coronavirus.” FAC ¶ 18, Acuna states his claim is “based on negligence” 20 in properly screening staff.

As discussed above, neither negligence nor gross negligence 21 amount to deliberate indifference. Wood,

. Therefore, Plaintiff fails to state 22 a claim against Gates. 23 D. Leave to Amend 24 In light of Plaintiff’s pro se status, the Court grants him one final opportunity to 25 amend his pleading to attempt to sufficiently allege a § 1983 claim if he can and if he 26 27 4 In his FAC, Acuna cites to “Ex. I” as support for his allegations against Steadman. 28 1 wishes to attempt to do so. See Rosati v. Igbinoso,

(9th Cir. 2015) (“A 2 district court should not dismiss a pro se complaint without leave to amend [pursuant to 28

(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the 4 complaint could not be cured by amendment.’” (quoting Akhtar v. Mesa,

, 5 1212 (9th Cir. 2012))). 6 III. CONCLUSION AND ORDERS 7 Good cause appearing, the Court: 8 1. DISMISSES Acuna’s First Amended Complaint for failing to state a claim 9 upon which relief may be granted pursuant to

(e)(2)(B)(ii) and 10 § 1915A(b)(1). 11 2. GRANTS Acuna forty-five (45) days leave from the date of this Order in 12 which to file a Second Amended Complaint which cures all the deficiencies of pleading 13 noted above. Acuna’s Second Amended Complaint must be complete by itself without 14 reference to his original pleading. Defendants not named and any claim not re-alleged in 15 his Second Amended Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; 16 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

(9th Cir. 1989) 17 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty.,

(9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 19 re-alleged in an amended pleading may be “considered waived if not repled.”). 20 If Acuna fails to file a Second Amended Complaint within the time provided, the 21 Court will enter a final Order dismissing this civil action based both on Acuna’s failure to 22 state a claim upon which relief can be granted pursuant to

(e)(2)(B)(ii) 23 and 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 24 amendment. See Lira v. Herrera,

(9th Cir. 2005) (“If a plaintiff does 25 not take advantage of the opportunity to fix his complaint, a district court may convert the 26 dismissal of the complaint into dismissal of the entire action.”) 27 28 1 3. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its 2 ||form complaint under the Civil Rights Act,

for use in amending and 3 ||instructs Plaintiff to utilize the Court’s form in amending. 4 IT IS SO ORDERED. 5 Dated: June 17, 2022 NO 6 DE | 7 Honorable Linda Lopez United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12