Polanco v. State
| Docket Number | 21-cv-06516-CRB |
| Decision Date | 03 March 2022 |
| Parties | PATRICIA POLANCO, et al., Plaintiffs, v. STATE OF CALIFORNIA, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
On May 30, 2020, high-level officials at certain California agencies-including the California Department of Corrections and Rehabilitation (CDCR) and San Quentin State Prison-ordered the transfer of 122 inmates at high risk of COVID-19 from the California Institution for Men (CIM), where there were 600 confirmed COVID-19 cases, to San Quentin where there were none. The inmates were transported on overcrowded buses without having been tested for COVID-19 or properly screened. At San Quentin, they were housed in open-air cells and mingled with the local prison population.
The ensuing COVID-19 outbreak in San Quentin killed 26 inmates and one correctional officer. That officer was Sergeant Gilbert Polanco, a 55-year-old man with high-risk factors. For several weeks in June, Polanco's duties included (among other things) transporting inmates to the hospital in unsanitized vehicles and without personal protective equipment (PPE). He contracted COVID-19 in late June and died on August 9.
Plaintiffs Patricia, Vincent, and Selena Polanco bring this lawsuit against various state agencies and ten high-level officials at CDCR, San Quentin, and CIM. Plaintiffs argue that Defendants are liable under 42 U.S.C. § 1983 for violating Polanco's and their own constitutional rights by failing to protect Polanco from a state-created danger. They also contend that Defendants violated the Rehabilitation Act and California's Bane Act, and negligently inflicted emotional distress on Plaintiffs. Defendants move to dismiss. The Court GRANTS the motion to dismiss with respect to (1) the Section 1983 claims against the CIM Defendants; (2) the Bane Act claim; and (3) the negligent infliction of emotional distress claim. The Court DENIES the motion as to (1) the Section 1983 claims against the CDCR/San Quentin Defendants and (2) the Rehabilitation Act claim. The Court grants Plaintiffs leave to amend.
Gilbert Polanco died of complications from COVID-19 on August 9, 2020 at the age of 55. Compl. (dkt. 1) ¶ 26. He was a Sergeant at San Quentin, where he had begun his career as a corrections officer at the age of 21. Id.
Plaintiffs are Patricia Polanco, the wife of Gilbert Polanco, and Vincent and Selena Polanco, his two children. Compl. ¶ 4. All are his successors-in-interest pursuant to California law. Id.; see Cal. Civ. Proc. Code § 377.11. They bring these claims individually and as his successors-in-interest. Compl. ¶ 4.
The Institutional Defendants are the State of California, CDCR, and San Quentin. (Plaintiffs are suing the Institutional Defendants for their Rehabilitation Act claim only.) CDCR is a state agency. Id. ¶ 7. San Quentin is a state prison under CDCR. Id. ¶ 8.
Plaintiffs have sued ten named Individual Defendants and twenty Does, all in their individual capacities. See id. ¶¶ 9-18, 19, 20. The Court will group the ten named Individual Defendants in two groups based on their alleged duties and their placement in the CDCR/San Quentin hierarchy.
The first group is CDCR/San Quentin Defendants. This group includes Ralph Diaz, the “Secretary, and highest policymaking official, of CDCR, ” id. ¶ 9; Estate of Dr. Robert S. Tharratt, who was the “Medical Director and a policymaking official of CDCR, ” id. ¶ 10; Ronald Davis, the “Warden of San Quentin, ” id. ¶ 11; Ronald Broomfield, the “Acting Warden of San Quentin, ” id. ¶ 12; Clarence Cryer, the “Chief Executive Officer for Health Care [] of San Quentin, ” id. ¶ 13; Dr. Alison Pachynski, the “Chief Medical Executive of San Quentin, ” id. ¶ 14; and Dr. Shannon Garrigan, the “Chief Physician and Surgeon of San Quentin, ” id. ¶ 15.
The second group is CIM Defendants. This group includes Louie Escobell, R.N., the “Chief Executive Officer for Health Care” of CIM, id. ¶ 16; Dr. Muhammad Farooq, the “Chief Medical Executive of CIM, ” id. ¶ 17; and Dr. Kirk Torres, the “Chief Physician and Surgeon of CIM, ” id. ¶ 18.
Further allegations as to the responsibilities of each of these individuals are not reproduced here. Where relevant, they will be discussed in the following sections.
In light of the COVID-19 pandemic, on March 4, 2020, California Governor Gavin Newsom proclaimed a State of Emergency in California. Id. ¶ 28. Around this time, Defendants were “briefed and warned about the grave danger to health and life posed by the COVID-19 outbreak, including the highly transmissible nature of the virus and the necessity for precautions” such as “quarantine of those known or suspected to have been exposed to the virus, the need for cleanliness, social distancing, and personal protective equipment, and the need to regularly test for virus carriers.” Id. A county shelter-in-place order was enacted on March 16, followed by a statewide order on March 19. Id. ¶¶ 29, 31. On March 18, the Interim Executive Director of the Habeas Corpus Resource Center, the State Public Defender, Mary McComb, and others responsible for representing people on death row sent a letter to Broomfield and Dr. Pachynski. Id. ¶ 30. The letter implored San Quentin to provide inmates with PPE and cleaning supplies, to allow for social distancing, and to enact other policies to protect the health of inmates and staff. Id.
On March 24, Governor Newsom issued Executive Order N-36-20, suspending intake of inmates into all state facilities for 30 days. Id. ¶ 32. On information and belief, it was extended a further 30 days. Id. “[U]ntil late May, 2020, California Correctional Health Care Services (CCHCS) had opposed transfers of inmates between prisons, saying that ‘mass movement of high-risk inmates between institutions without outbreaks is ill- advised and potentially dangerous' and noting that it ‘carries significant risk of spreading transmission of the disease between institutions.'” Id.
Nonetheless, on May 30, 2020, Defendants ordered the transfer to San Quentin of 122 inmates from the California Institution for Men (CIM), a state prison under CDCR that is located in Chino, California. Id. ¶ 34. At the time, San Quentin had no COVID-19 cases; CIM, however, was “struggling with a severe outbreak of COVID-19, which by then had reportedly infected over 600 inmates and killed 9 of them.” Id. “Most or all of the men who were transferred had not been tested for COVID-19 for at least approximately three or four weeks.” Id. “The transferred inmates also were not properly screened for current symptoms immediately before being placed on a bus.” Id. In fact, a report by the California Office of the Inspector General (OIG) later found that “a [CIM] health care executive explicitly ordered that the incarcerated persons not be retested the day before the transfers began, and multiple CCHCS and departmental executives were aware of the outdated nature of the tests before the transfers occurred.” Id. ¶ 50. The inmates were “packed onto buses in numbers far exceeding COVID-capacity limits that CDCR had mandated for inmate safety.” Id. ¶ 34; see id. ¶¶ 50-51 ().
Defendants placed the new inmates in the “Badger housing unit, where tiers of open-air cells open into a shared atrium.” Id. ¶ 35. They “used the same showers and ate in the same mess hall as the other inmates.” Id. Several of the transferred inmates tested positive or displayed symptoms soon after arrival. Id. ¶ 35; cf. id. ¶ 50 ( that testing did not occur until they had already been housed in San Quentin for six days).
On June 1, 2020, upon learning of the transfer, Marin County Public Health (MCPH) Officer Dr. Matthew Willis immediately recommended to Defendants, including Acting Warden Broomfield, that transferred inmates be sequestered from the native San Quentin population, that all exposed inmates be required to wear masks, and that staff movement be restricted between different housing units. Id. ¶ 38. Defendants did not adopt any of these policies. Id.
As noted, at the time of the transfer on May 30, San Quentin had no reported cases. Id. ¶ 34. Within days, 25 of the transferred inmates tested positive for COVID-19. Id. ¶ 35. “Over three weeks, the prison went from having no cases to 499 confirmed cases.” Id. At the time, testing delays in San Quentin were 5-6 days. Id. ¶ 39. Both the Innovating Genomics Institute at Berkeley and a research laboratory with the UCSF Medical Center offered to provide free COVID-19 testing for San Quentin, but Defendants rejected the officer. Id. ¶ 42.
On June 13, a group of health experts toured San Quentin at the request of the federal court-appointed medical monitor and CCHCS Director Clark Kelso. Id. ¶ 39. On June 15, the experts circulated an “Urgent Memo” warning that the outbreak could develop into a “full-blown local epidemic and health care crisis in the prison and surrounding communities, ” and that the overcrowding and other factors created high risk for a “catastrophic super-spreader event.” Id.
By July 7, 2020, more than 1, 300 inmates and 184 staff members had tested positive. Id. ¶ 44. The number of infected inmates had increased to 2, 181 by July 30. Id. By September 2, twenty-six inmates had died. Id.
California State Senators have called the inmate transfer a “fiasco, “abhorrent, ” and “completely avoidable, ” and a California Assembly member called it the “worst prison...
To continue reading
Request your trial