Fernandez v. Gamboa

• Decision Date: 04 March 2022
• Docket Number: 1:21-cv-01748-JLT-BAM (PC)
• Parties: BRANDON ALEXANDER FERNANDEZ, et al., Plaintiff, v. MARTIN GAMBOA, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

BRANDON ALEXANDER FERNANDEZ, et al., Plaintiff,
v.
MARTIN GAMBOA, et al., Defendants.

No. 1:21-cv-01748-JLT-BAM (PC)

United States District Court, E.D. California

March 4, 2022

SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT

(ECF No. 1)

THIRTY (30) DAY DEADLINE

BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE

Plaintiff Brandon Alexander Fernandez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint, filed on December 9, 2021, is before the Court for screening. (Doc. 1.)

I. Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Allegations

Plaintiff is currently housed at California State Prison. The events in the complaint are alleged to have occurred while Plaintiff was housed in Avenal State Prison (”Avenal”). Plaintiff names as defendants: (1) Martin Gamboa, Warden, (2) Kathleen Allison, Secretary of the Department of Corrections and Rehabilitation, (3) Gavin Newsom, Governor, and (4) Does 1-10, 000.

Plaintiff alleges that Defendants subject Plaintiff and other inmates to cruel and unusual punished by forcing Plaintiff into illegal housing configuration and unlawful conditions that caused the spread of Covid 19 to 99% of inmates at Avenal. Long term damages have resulted to inmates at Avenal and Avenal had time to protect inmates, but instead created a harmful living environment that accelerated the spread of the disease. Plaintiff, and others, filed a class action 602 appeal with over 300 signatures of participating inmates to ask for protection or for early release because of overcrowding that was causing the problem. Overcrowding was the reason the disease was spreading, along with the housing configuration. The appeal was denied and everything the inmates claimed would happen did happen.

Plaintiff brings this action on behalf of himself and over 300 class members.^[1] On April

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21, 2020, Plaintiff put in an emergency appeal for release and to reduce the population below 100% of capacity. All actions and inactions by Defendant throughout the pandemic have been criminally negligent resulting in 8 deaths at Avenal and 80 death state wide. Every defendant had the legal authority to release and reduce inmates under emergency legal provisions, but failed to do so. Instead they piece-mealed release of low risk offenders and delayed releases. Each Defendant was fully aware of the devastation that would be caused by the virus and were warned by experts and lawsuits if they did not take preventative measures to release or reduce the population. They said they were “doing everything” except thinning the population.

Plaintiff stated in the 602 that the inmates were forced to house in 8-man double bunks which increased the population density in dorms instead of decreasing the population. The appeal response was delayed until June 3, 2020, and was partially granted, but stated that no departmental policy was violated.

In April, Avenal began mass testing inmates on Facility 5 due to outbreaks on other yards. Inmates in Facility 5 did not test positive, “which is why Plaintiffs became concerned of becoming infected due to the negligence taking place by CDCR's handling of the situation.”

Within 3 weeks of filing the 602 appeal, Avenal went from zero cases to 799 cases, an explosive outbreak. From June 4, 2020 to the present, Avenal suffered the worst Covid outbreak with 2900 total infections and 8 deaths, out of 3400 inmates. The Plaintiffs in the 602 all tested positive.

Plaintiff alleges that overcrowding is the primary cause of the Eighth Amendment constitutional violation along with Defendant's strategy to circumvent the CDC's recommendation to release inmates below 50% of capacity. Defendants have created a deliberate indifference to their safety and welfare.

Facts of deliberate indifference are as follows: 8 people per dorm without ability to social distance; merely shifting bodies from emptied single bunks in each upper tier and two bunks at

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the bottom tier; no emergency evacuation plans; no emergency tents; creating emergency crisis units in the gymnasium only after 90% infection rate; delayed providing masks; N95 masks only after 90% of inmate population had become infected; staff refused to wear N95 masks; no proper PPE; no testing; social distancing impossible due to overcrowding; hand sanitizers and soap dispensers only after infections occurred; required staff to work even though infected and not enough recovery time; suspended visitation which forced more phone interactions in the common areas; caused anxiety by limiting inmate movement; Governor suspended all transfers instead of releasing inmates; Avenal “shuffled” inmates from dorm to dorm; and no staff testing.

Defendants cannot guarantee that Plaintiff will not get sick from a different strain of Covid and the conditions at Avenal have created a perfect breeding ground for the virus and Plaintiff will get sick.

As remedies, Plaintiff seek injunctive relief enjoining and restraining Defendants from engaging in the policies, practices and conduct complained of in this complaint and to immediately reduce Avenal to 50% or less of designed capacity in compliance with Center of Disease Control recommendations. Plaintiff seeks declaratory relief and compensatory and punitive damages. Plaintiff also sees appointment of counsel.

III. Appointment of Counsel

Plaintiff has asked to be appointed counsel Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev'd in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

The Court has considered Plaintiff's request, but does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners who are proceeding pro se. These litigants also must conduct legal research, answer discovery requests, and litigate their cases without the assistance of counsel.

Furthermore, at this stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits. As discussed below, Plaintiff has failed to state a cognizable claim Finally, based on a review of the record in this case, the Court finds that Plaintiff can adequately articulate his claims.

Based on the foregoing, Plaintiff's motion to appoint counsel is HEREBY DENIED, without prejudice.

IV. Discussion

Plaintiff's complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to state a cognizable claim under 42 U.S.C. § 1983. Because he is proceeding pro se, Plaintiff will be granted leave to amend his complaint to the extent that he can do so in good faith. To assist Plaintiff, the Court provides the pleading and legal standards that appear relevant to his claims.

A. Plaintiff Cannot Represent Other Inmates

It appears that Plaintiff is seeking to bring this action on behalf of other inmates. A pro se inmate cannot represent anyone other than himself in a conditions of confinement suit. “A litigant appearing in propria persona has no authority to represent anyone other than himself.” Russell v. United States, 308 F.2d 78, 79 (9th...