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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 ISAAC RIGGS, Case No.: 3:23-cv-01900-JO-DEB 12 CDCR #E26630, 13 ORDER DISMISSING FIRST Plaintiff, AMENDED COMPLAINT FOR 14 vs. FAILING TO STATE A CLAIM 15 UNDER 28 U.S.C. § 1915A

16 RAYMOND MADDEN, Warden, et al., 17 Defendants.

18 19 20 Plaintiff Isaac Riggs1 is currently a state prisoner. Proceeding pro se, he filed a civil 21 rights action pursuant to

alleging Defendants violated his constitutional 22 rights when they forced him to transfer from Centinela State Prison to Kern Valley State 23 Prison––a transfer that resulted in Plaintiff contracting COVID-19 at the new facility. See 24 25 1 In Plaintiff’s original complaint, he listed his surname as “Riggs.” ECF No. 1 at 1, 7. In his 26 amended complaint, however, he lists and signs his last name as “Griggs.” ECF No. 4 at 1, 8. Because several exhibits attached to Plaintiff’s pleadings refer to him as “Riggs,” see

, and the 27 California Department of Corrections and Rehabilitation Inmate Locator also identifies Inmate No. E26630 as “Isaac Riggs,” see https://ciris.mt.cdcr.ca.gov/results?lastName=riggs&firstName=isaac, the 28 1 ECF No. 4. Upon screening Plaintiff’s First Amended Complaint (“FAC”), the Court 2 dismisses it without leave to amend for the reasons below. 3 I. BACKGROUND 4 Plaintiff complains that officers at Centinela State Prison forced him to transfer to 5 Kern Valley State Prison against his will.

. On February 26, 2020, Correctional 6 Officers Rivas and Esquivel entered Plaintiff’s cell and informed him that they were 7 transferring him to another facility for a court hearing.

When Plaintiff informed these 8 officers that he did not have a court date and refused to go, they filed a Rules Violation 9 Report (“RVR”) against him.

During this interaction, Plaintiff expressed his concerns 10 about the COVID-19 virus that was “going around,” especially since he was “64 years old 11 with high-risk medical conditions.”

Plaintiff also told the officers he had “not been 12 tested” and the prison had not taken “adequate protective measures.”

13 On March 1, 2020,2 Officers Rivas and Esquivel again arrived at Plaintiff’s cell to 14 transfer him to another facility.

. After threating Plaintiff with another RVR if 15 he resisted, they forced him to transfer to Kern Valley, where he contracted COVID-19. 16

. 17 Based on these facts, Plaintiff filed a lawsuit pursuant to

alleging 18 that Warden Madden and Officers Rivas and Esquivel violated his Eighth Amendment 19 right against cruel and unusual punishment and his Fourteenth Amendment right to due 20 process. ECF No. 1. Upon screening, the Court dismissed Plaintiff’s original complaint 21 and granted leave to amend his Eighth Amendment claim only. ECF No. 3. In his FAC, 22 Plaintiff alleges Eighth Amendment claims against Officers Rivas, Esquivel and Warden 23 Madden for transferring him without taking proper COVID-19 precautions. ECF No. 4. 24 / / / 25 26 27 2 In his FAC, Plaintiff alleges this incident occurred a week after the February 26, 2020 incident. ECF No. 4 at 3. Plaintiff attached prison records to his FAC which indicate the transfer occurred on March 28 1 II. LEGAL STANDARDS 2 A. Screening Pursuant to 28 U.S.C. §1915A 3 Pursuant to 28 U.S.C. § 1915A, the Court must sua sponte screen any complaints 4 seeking redress from a government entity or officer and dismiss any portions that are 5 frivolous, malicious, fail to state a claim, or seek damages from defendants who are 6 immune. Olivas v. Nevada ex rel. Dept. of Corr.,

(9th Cir. 2017) 7 (citing 28 U.S.C. § 1915A(b)). “Failure to state a claim under § 1915A screening 8 incorporates the familiar standard applied in the context of failure to state a claim under 9 Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

(9th 10 Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter . . . 11 to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

, 678 12 (2009) (internal citation and quotation marks omitted). While detailed factual allegations 13 are not required, “[t]hreadbare recitals of the elements of a cause of action, supported by 14 mere conclusory statements, do not suffice” to state a claim.

“A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.”

Although 17 failure to state a claim under § 1915A incorporates the above Rule 12(b)(6) standards, a 18 pro se litigant need only satisfy a “low threshold” to “proceed past the screening stage.” 19 Wilhelm,

. 20 B. Standards for § 1983 Actions 21 Title

“creates a private right of action against individuals who, 22 acting under color of state law, violate federal constitutional or statutory rights.” 23 Devereaux v. Abbey,

(9th Cir. 2001). Section 1983 “is not itself a 24 source of substantive rights, but merely provides a method for vindicating federal rights 25 elsewhere conferred.” Graham v. Connor,

, 393–94 (1989) (internal quotation 26 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 27 of a right secured by the Constitution and laws of the United States, and (2) that the 28 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 1 Palace, Inc.,

(9th Cir. 2012) (internal citation and quotation marks 2 omitted). 3 III. DISCUSSION 4 A. Judicial Notice 5 As an initial matter, the Court takes judicial notice of some basic facts about the 6 early days of the COVID-19 outbreak. See Metroflex Oceanside LLC v. Newsom,

Supp. 3d 976, 980 (S.D. Cal. 2021) (taking judicial notice of “government orders related 8 to the COVID-19 pandemic”). Under the Federal Rules of Evidence, a court “may 9 judicially notice a fact that is not subject to reasonable dispute[.]” Fed. R. Evid. 201(b). 10 Such facts must either be “generally known within the trial court’s territorial jurisdiction” 11 or be “accurately and readily determin[able] from sources whose accuracy cannot 12 reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). A court “may take judicial notice 13 at any stage of the proceedings” and may do so sua sponte. Fed. R. Evid. 201(c), (d). 14 The Court therefore takes judicial notice of the following facts: 15 (1) On March 11, 2020, the World Health Organization declared the COVID-19 16 outbreak a pandemic. See WHO Director-General’s Opening Remarks at the 17 Media Briefing on COVID-19, World Health Organization (Mar. 11, 2020), 18 https://www.who.int/dg/speeches/detail/who-director-general-s-opening- 19 remarks-at-the-media-briefing-on-covid-19---11-march-2020. 20 (2) On March 24, 2020, California Governor Gavin Newsom issued an executive 21 order limiting the transfer of California prison inmates, calling for quarantining 22 of inmates upon arrival from county jails, and educating staff and inmates 23 regarding safeguards against COVID-19. Cal. Exec. Order N-36-20 (Mar. 24, 24 2020). 25 (3) On April 3, 2020 the Centers for Disease Control (“CDC”) issued, for the first 26 time, a recommendation that members of the general public voluntarily wear 27 cloth masks. See Recommendation Regarding the Use of Cloth Face Coverings, 28 Centers for Disease Control (April 3, 2020), 1 https://stacks.cdc.gov/view/cdc/86440. 2 B. Plaintiff’s Eighth Amendment Claim 3 Plaintiff has not stated an Eighth Amendment claim against Officers Rivas, Esquivel 4 or Warden Madden because he has not plausibly alleged that they acted with deliberate 5 indifference when they transferred him to Kern Valley. 6 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a 7 plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. 8 Bannister,

(9th Cir. 2014) (quoting Estelle v. Gamble,

, 9 104 (1976)). A plaintiff claiming an Eighth Amendment violation must allege facts to 10 plausibly show that the deprivation he suffered was (1) “objectively ‘sufficiently serious’”; 11 and (2) the prison official had a “sufficiently culpable state of mind,” where he “kn[ew] of 12 and disregard[ed] an excessive risk to [an] inmate[’s] health or safety.” Farmer v. Brennan, 13

, 834–37(1994) (quoting Wilson v. Seiter,

(1991)). “[T]he 14 official must both be aware of facts from which the inference could be drawn that a 15 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 16 U.S. at 837. 17 Here, Plaintiff fails to adequately allege that Officers Rivas, Esquivel or Warden 18 Madden knew that transferring Plaintiff to Kern Valley would subject him to a higher risk 19 of contracting COVID-19 but ignored that risk. Plaintiff broadly asserts that Defendants 20 “knew or should have known” that Kern Valley “was one of the worst of the [state’s] 33 21 prisons.” See ECF No. 4 at 3. He does not, however, allege any facts concerning what 22 these individuals knew on March 1, 2020, the date of his transfer, about the COVID-19 23 risks at Kern Valley. For example, Plaintiff makes no allegation that Defendants were 24 aware of any COVID-19 cases in the California prison system before this date, much less 25 that there were higher rates at Kern Valley compared with Centinela. See ECF No. 4. His 26 conclusory allegations are therefore insufficient to plausibly allege that Defendants had 27 subjective knowledge that Kern Valley was more dangerous at the time of the transfer, 28 especially given that COVID-19 had not yet been declared a pandemic. Toguchi v. Chung, 1

(9th Cir. 2004) (No Eighth Amendment violation when defendant did 2 not know the risk “no matter how severe the risk.”). 3 Second, Plaintiff fails to allege Defendants knew about the need for COVID-19 4 protective equipment and masks testing but failed to provide them. Plaintiff does not 5 allege that Defendants knew that COVID-19 posed a danger in the California prison system 6 at this time—ten days before the World Health Organization declared it a pandemic and 7 twenty-three days before Governor Newsom imposed COVID-19 safety measures in state 8 prisons. Nor does he allege that Defendants knew masking and testing precautions were 9 necessary at this point—thirty-two days before the CDC issued masking recommendations 10 for the public. See Recommendation Regarding the Use of Cloth Face Coverings, Centers 11 for Disease Control (April 3, 2020), https://stacks.cdc.gov/view/cdc/86440. Finally, he 12 fails to allege that Defendants would have been able to provide masks or COVID-19 testing 13 in this time frame—again, twenty-three days before the governor imposed any COVID 14 safety measures in prisons—but failed to do so. See Lopez v. Allison,

15 (N.D. Cal. 2021) (inmate’s “allegations regarding the March 2020 failure to provide 16 COVID-19 tests and PPE” to prison inmates failed to plead deliberate indifference when 17 he made no allegation that individuals at the prison had been infected with COVID-19 at 18 that time); Barker v. Farooq,

, at *4–6 (C.D. Cal. May 17, 2022) (finding 19 claim relating to lack of protective equipment deficient without allegations that the prison 20 officials “had the reasonable ability to provide . . . any inmate with supplies”). Because 21 Plaintiff failed to plead that Defendants had knowledge of serious COVID-19 risks at the 22 time of his transfer, he cannot establish that they were deliberately indifferent to those risks. 23 Therefore, Plaintiff fails to state a plausible Eighth Amendment claim against Defendants. 24 See 28 U.S.C. § 1915A; Iqbal,

. 25 Plaintiff also fails to state a claim against Warden Madden because he does not allege 26 how Warden Madden was personally involved in his transfer or denial of COVID-19 27 protective equipment. Where a plaintiff names a warden as a defendant, the plaintiff must 28 specifically allege (1) the warden’s personal involvement in the constitutional deprivation; 1 |}or (2) a causal connection between the defendant’s wrongful conduct and the alleged 2 constitutional deprivation. See Iqbal,

. Here, Plaintiff alleges no specific 3 || facts regarding Warden Madden’s conduct beyond his assertion that, as warden, he “signed 4 ||for” the transfer. See ECF No. 4 at 2. Plaintiffs vague and conclusory allegation is 5 insufficient to support an inference that Warden Madden “participated in or directed the 6 || violations, or knew of the violations and failed to act to prevent them.” See Taylor □□□ List, 7 ||

, 1045 (9th Cir. 1989). Therefore, he fails to state a plausible claim for relief 8 |}against Warden Madden under section 1983. Iqbal,

. 9 Because the Court finds Plaintiff failed to state an Eighth Amendment claim against 10 defendant, it dismisses Plaintiff's First Amended Complaint in its entirety. Further, 11 because Plaintiff has already been provided a short and plain statement of his pleading 12 || deficiencies and an opportunity to amend, the Court finds granting further leave to amend 13 || would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 14 2014) (‘Futility of amendment can, by itself, justify the denial of . . . leave to amend.’”’) 15 ||(quoting Bonin v. Calderon,

(9th Cir. 1995)); Zucco Partners, LLC v. 16 || Digimarc Corp.,

(9th Cir. 2009) (“[W]here the plaintiff has previously 17 || been granted leave to amend and has subsequently failed to add the requisite particularity 18 || to its claims, [t]he district court’s discretion to deny leave to amend is particularly broad.”’) 19 || Gnternal quotation marks omitted) (second alteration in original). 20 IV. CONCLUSION AND ORDER 21 For the foregoing reasons, the Court DISMISSES Plaintiff's First Amended 22 ||Complaint with prejudice for failure to state a claim upon which relief may be granted 23 || pursuant to 28 U.S.C. § 1915A. The Clerk of Court is directed to close the file. 24 IT IS SO ORDERED. 25 || Dated: October 11, 2024 26 Ho orgbfe Tinsook Ohta United States District Judge 28 7 ee □□