Jones v. Pollard

• Decision Date: 09 March 2022
• Docket Number: 21-cv-162-MMA (RBM)
• Court: U.S. District Court — Southern District of California
• Parties: HENRY A. JONES, JR., Plaintiff, v. MARCUS POLLARD, Warden, et al., Defendants.

HENRY A. JONES, JR., Plaintiff,
v.
MARCUS POLLARD, Warden, et al., Defendants.

No. 21-cv-162-MMA (RBM)

United States District Court, S.D. California

March 9, 2022

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

[DOC. NO. 32]

HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.

On January 27, 2021, Henry A. Jones, Jr. (“Plaintiff”), a state prisoner and proceeding pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. See Doc. No. 1 (“Compl.”). Defendant Warden Marcus Pollard (“Defendant”) now moves to dismiss Plaintiff's claim against him. Doc. No. 32. Plaintiff filed an opposition, to which Defendant replied. See Doc. Nos. 33, 34. Plaintiff then filed a sur-reply, Doc. No. 6, which the Court did not authorize but nonetheless accepted while noting the discrepancy, Doc. No. 7. Defendant filed a response to Plaintiff's sur-reply. Doc. No. 38. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss.

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I. Background^[1]

Plaintiff alleges that Defendant was deliberately indifferent to his health and safety in violation of the Eighth Amendment based upon the decision to use the mental health building at the R. J. Donovan Correctional Facility (“RJD”), in San Diego, California, where Plaintiff was housed, ^[2] to quarantine inmates infected with COVID-19, thereby exposing him to the virus, with which he was infected. See Compl. at 3-4, 12-14.

Specifically, Plaintiff alleges that sometime in April or May of 2020, Defendant chose to make the mental health building, the “A-1 Facility, ” the quarantine location for inmates infected with COVID-19. Compl. at 3, Compl. at 12 ¶ 8. Specifically, Defendant “[n]otified prison officials located in [the] Mental Health Building[] A-1 to clear out A-Section from 1-thru-10, 201-[thru]-210” to house “covid infectious inmates.” Compl. at 12 ¶ 8. Plaintiff alleges that the inmates in the mental health building complained of the decision to “plac[e] infectious inmates in the Building with non-infected inmate[s], ” Compl. at 3, and on May 16, 2020, they collectively contested the decision to make “the Mental health Building [a] dumping ground for covid-19 inmates, ” Compl. at 12 ¶ 9. On May 16, 2020, however, the collective grievance was returned, and the inmates were instructed to file “separate 602's.” Compl. at 3; Compl. at 12 ¶ 10.

On June 20, 2020, Plaintiff filed an individual 602 inmate grievance log no. 13756 (the “602”).^[3] Compl. at 12; Compl. at 17-24 (“Pl. Ex. A”). In the 602, Plaintiff specifically complains of Defendant's “placing quarantine cov[id]-19 inmates housed in cells/building not designed to prevent the spread of cov[id]-19.” Pl. Ex. A at 20.

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Plaintiff attached a memorandum to the 602, which is “[d]irected to” Defendant, Compl. at 12 ¶ 7, and states, in relevant part, that the greivance was premised on Defendant's “clearing out one section of the housing unit to place Covid-19 inmates in cells that share the same air vent.” Pl. Ex. A at 22. Plaintiff further explained that he had underlying health conditions that put[] his life at risk.” Pl. Ex. A at 22. On August 10, 2020, Plaintiff's 602 was disapproved. Pl. Ex. A at 18. Plaintiff appealed that decision, again citing his underlying health conditions and attaching medical documents. Pl. Ex. A at 19, 21, 23.

Plaintiff asserts that on December 6, 2020, while his appeal was pending, ^[4] an inmate infected with the virus was placed in “cell 227” and was later removed several hours later. Compl. at 3; Compl. at 12 ¶ 17. Plaintiff alleges that the following day, “99% of the inmates were infected with covid-19.” Compl. at 3; see also Compl. at 12 ¶ 17 (“Nurse's [sic] came [] around, notifying all the inmates housed in A-1[] that they have been infected with covid-19.”).

Plaintiff contracted and tested positive for COVID-19 on December 8, 2020. Compl. at 32 (“Exhibit D”). Plaintiff asserts that on December 11, 2020, he experienced “chest pains, racing heart beats” and was taken to medical for an EKG, which showed “no changes” to his heart. Compl. at 13 ¶¶ 21-22.

Plaintiff asserts that while he, as well as the other inmates in the mental health building, “pleaded to [the] administration not to place infectious inmates in the same area, ” Defendant “ignored [the] inmates'[] pleas, ” Compl. at 3, and instead placed inmates infected with COVID-19 in the “general population” rather than in isolation until they were no longer infectious. Compl. at 3. Plaintiff claims that Defendant's decision to quarantine COVID-19-infected inmates in the mental health building constituted a deliberate indifference to his health and safety in violation of the Eighth Amendment.

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See Compl. at 3-4. He alleges that Defendant personally made the housing decision knowing it would expose the inmates to COVID-19 and knowing there was no treatment for the virus. Compl. at 3-4.

In his Complaint, Plaintiff names Defendant as well as Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) Kathleen Allison and “Doctor's and Other's R.J.D. Donovan” as John Doe Defendants 1-6. Compl. at 2. In its Screening Order, the Court dismissed the Doe Defendants for failure to plead any factual allegations against them. Doc. No. 10 at 4. The Court found that Plaintiff sufficiently pleaded an Eighth Amendment claim against Defendant and Secretary Allison to withstand screening under 28 U.S.C. § 1915A and directed Plaintiff to serve Defendant and Secretary Allison. Id. at 5. Ultimately, Plaintiff served Defendant and simultaneously filed a “motion for “voluntary dismissal” of Secretary Allison. Doc. No. 31. Secretary Allison has not been served to date. See Docket.

II. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading 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). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard thus demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of underlying facts sufficient to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

Pro se litigants “must be ensured meaningful access to the courts.” Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). When the plaintiff is appearing pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal interpretation to a pro se complaint, however, the court is not permitted to “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The court must give a pro se litigant leave to amend his complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)).

III. Request For Judicial Notice

Defendant asks the Court to take judicial notice of nine exhibits-five exhibits submitted in support of his motion to dismiss: (1) transcript from the Senate Public Safety Committee Senate Hearing on COVID-19 in California State Prisons dated July 1, 2020; (2) Governor Gavin Newsom's March 4, 2020 Executive Order; (3) “COVID-19 Science Update” webpage from the Centers for Disease Control and Prevention website; (4) online article from U.C. Davis Health; and (5) April 17, 2020 Northern District of California order in Case No. 01-CV-01351-JST, and four exhibits submitted in reply: (A) docket in Case No. 21-cv-00055-CAB (BGS); (B) “Tracking COVID-19 in California” webpage from the California state website; (C) “WHO Coronavirus” webpage from the World Health Organization website; and (D) “Population COVID-19 Tracing” webpage from the California CDCR website.

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“Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint . . . .” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002)) (discussing that a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment); see also Fed. R. Civ. P. 12(d) (explaining that if the court considers other materials, a motion brought pursuant to Rule 12(b)(6) or (c) is converted into a motion for summary judgment under Rule 56)...