(PC) Gosztyla v. Auld

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GOSZTYLA, No. 2:22-cv-01276-KJM-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 AULD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. On August 6, 2024, pursuant to 28 U.S.C. § 1915A(a), the court determined that 19 plaintiff’s second amended complaint1 (SAC) alleged potentially cognizable Eighth Amendment 20 and Fourteenth Amendment claims against defendants Auld (a supervising registered nurse), Hla 21 (a physician and surgeon), and Malet (an osteopathic physician and surgeon). ECF Nos. 45, 48. 22 Defendants now move for summary judgment. ECF No. 54. Plaintiff has responded, ECF No. 23 58, and defendants have replied, ECF No. 59. For the following reasons, defendant’s motion for 24 1 The court had already determined that plaintiff’s first amended complaint (FAC) alleged potentially cognizable Eighth Amendment and Fourteenth Amendment claims against defendants 25 Auld, Hla, and Malet. ECF Nos. 10, 11. The claims against these three defendants are virtually identical in the FAC and in the SAC. The SAC attempted to add a claim against a defendant 26 identified as “CCHCS IGHCPHP,” allegedly the California Correctional Health Services’ Interim Guidance for Health Care and Public Health Providers. ECF No. 45 at 3, 5. This was construed 27 as an attempt to allege a claim against CCHCS and was dismissed because CCHCS has Eleventh Amendment immunity. ECF Nos. 60, 62. 28 1 summary judgment must be granted. 2 The SAC 3 The SAC alleges that on December 10, 2020, plaintiff began to decline testing for Covid- 4 19 due to perceived carelessness of medical staff in administering the tests. ECF No. 45 at 4. His 5 refusal led to his being placed in quarantine on December 28, 2020, even though he showed no 6 signs or symptoms of illness. Prison officials placed a sign outside his door that stated 1) 7 plaintiff’s name, 2) “Failure to Test,” 3) “Compliance with future testing will allow removal from 8 21 day quarantine,” and 4) a start date (12/28/2020) and an end date (1/18/2021) for the “21 Day 9 Medical Quarantine Required.” Id. at 9. 10 Plaintiff alleges that the sign displayed his private medical information to inmates, non- 11 medical staff, and non-custody staff. Id. at 4. He claims this violated the Health Insurance 12 Portability and Accountability Act of 1996 (HIPAA) and his rights under the Fourteenth 13 Amendment. Id. 14 Plaintiff further alleges that prison administrators halted all general programming until all 15 prisoners complied with testing. Id. at 6. He alleges that the quarantine sign identified him as 16 being responsible for the halt, that this unreasonably exposed him to threats to his safety, and that 17 this also violated his right to refuse medical treatment. He alleges that defendants violated his 18 rights under the Eighth Amendment by failing to protect his safety. 19 Defendants’ Motion for Summary Judgment 20 The parties have minimal factual disputes. Instead, they disagree about whether plaintiff 21 has shown evidence, construed in his favor, that is sufficient to support any constitutional claim 22 against them. 23 Regarding plaintiff’s Fourteenth Amendment claim, defendants’ arguments are that: (1) 24 plaintiff has not shown a violation of a Fourteenth Amendment right to medical privacy; (2) none 25 of the defendants placed the sign on plaintiff’s cell door or authorized it to be placed there; and 26 (3) none of the defendants was responsible for the relevant Covid-19 protocols so they are not 27 proper parties. 28 //// 1 As to plaintiff’s Eighth Amendment claim, defendants argue that plaintiff was not 2 subjected to an objective or actual threat from other inmates and that defendants did not act with 3 deliberate indifference. 4 Finally, plaintiff alleges he exhausted a grievance process on these issues. ECF No. 45 at 5 6, 10-20. Defendants counter that plaintiff did not exhaust administrative remedies against them 6 on any claim. Defendants also argue they are entitled to qualified immunity. ECF No. 54. 7 Plaintiff’s Deposition Transcript 8 Defendants submitted excerpts or plaintiff’s deposition transcript with their motion for 9 summary judgment. ECF No. 54-7. In accordance with Local Rule 133(j), defendants have 10 lodged a copy of the entire transcript with the court. ECF No. 63. The court has reviewed the full 11 transcript and finds that an additional page of the transcript adds context to the excerpted pages 12 and is relevant to analysis of plaintiff’s Eighth Amendment claim. Accordingly, the court will 13 direct the Clerk to file page 25 of the transcript (“Tr.25”) on the public docket of this case. 14 Summary Judgment Standard Under Rule 56 15 Summary judgment is appropriate when the moving party “shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). 18 Under summary judgment practice, the moving party “initially bears the burden of 19 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 20 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 21 party may accomplish this by “citing to particular parts of materials in the record, including 22 depositions, documents, electronically stored information, affidavits or declarations, stipulations 23 (including those made for purposes of the motion only), admissions, interrogatory answers, or 24 other materials” or by showing that such materials “do not establish the absence or presence of a 25 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 26 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at 27 trial, “the moving party need only prove that there is an absence of evidence to support the 28 nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see 1 also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate 2 time for discovery and upon motion, against a party who fails to make a showing sufficient to 3 establish the existence of an element essential to that party’s case, and on which that party will 4 bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof 5 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 6 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 7 whatever is before the district court demonstrates that the standard for entry of summary 8 judgment, . . ., is satisfied.” Id. at 323. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 11 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 13 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 14 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 15 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 16 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 17 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 18 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 19 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 20 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 21 In the endeavor to establish the existence of a factual dispute, the opposing party need not 22 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 23 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 24 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 25 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 26 Matsushita, 475 U.S. at 587 (citations omitted). 27 //// 28 //// 1 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 2 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 3 party.” Walls v. Central Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 4 opposing party’s obligation to produce a factual predicate from which the inference may be 5 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 6 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 7 party “must do more than simply show that there is some metaphysical doubt as to the material 8 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 9 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 10 omitted). 11 Fourteenth Amendment Medical Privacy Claim2 12 A. Legal Standard 13 The Ninth Circuit Court of Appeals has held that prisoners have no constitutional right of 14 privacy in their prison treatment records “when the state has a legitimate penological interest in 15 access to them.” Seaton v. Mayberg, 610 F.3d 530, 534 (9th Cir. 2010). The Ninth Circuit Court 16 noted that “[p]risons need access to prisoners’ medical records to protect prison staff and other 17 prisoners from communicable diseases and violence, and to manage rehabilitative methods.” Id. 18 at 535. The court observed that legitimate penological concerns broadly include protecting 19 prisoners and staff from conditions such as AIDS and HIV and also “contagious disease such as 20 pinkeye or strep throat” or mental health conditions that may manifest violent predatory behavior. 21 Id. A prison “may owe a duty, possibly a constitutional duty,” to take protective measures. Id.; 22 see also Murphy v. Thompson, 15 F. App’x 417, 418 (9th Cir. 2001) (a prisoner’s privacy rights 23 are circumscribed by the government’s interests in protecting the public when making parole 24 decisions). Seaton also “put[s] the burden on the prisoner to plead ‘facts to rebut the connection 25 2 Plaintiff’s medical privacy claims arise, if at all, under the Fourteenth Amendment 26 because HIPAA does not provide a private cause of action. Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1080 (9th Cir. 2007). Also, “[a]n alleged HIPAA violation cannot form the basis 27 for a [42 U.S.C. §] 1983 claim.” Huling v. City of Los Banos, 869 F. Supp. 2d 1139, 1154 (E.D. Cal. 2012). 28 1 between disclosure of his prison treatment records and the State’s legitimate penological 2 objectives during his custody.’” Newman v. Poquette, No. 11-3866 ODW (MRW), 2012 WL 3 487116, at *3 (C.D. Cal. Jan. 12, 2012) (quoting Seaton, 610 F.3d at 535). 4 After outlining these general principles, the Seaton opinion stops short of providing more 5 specific guidance about the contours of any privacy rights that prisoners may have in their 6 medical information.3 Courts in the Ninth Circuit have noted that “the constitutional right of 7 informational privacy is murky, at best.” Huling v. City of Los Banos, 869 F. Supp. 2d 1139, 8 1154 (E.D. Cal. 2012) (quoting O’Phelan v. Loy, No. 09-236 SOM, 2011 WL 719053, at *11 (D. 9 Haw. Feb. 18, 2011)). 10 B. Analysis 11 1. Application Of Seaton 12 The disclosed information which is the subject of plaintiff’s Fourteenth Amendment claim 13 is the fact of his quarantine, the reason for it (failure to test), and its duration. The parties do not 14 address the “murky” question whether these tersely stated facts fall within the realm of potentially 15 protected medical information that may be encompassed within a constitutional right to privacy.4 16 On this motion for summary judgment, and absent persuasive contrary authority in the briefing, 17 the court will construe this question in plaintiff’s favor. 18 //// 19 3 The Ninth Circuit Court stated it was “join[ing] our sister circuits,” and cited cases from 20 seven other circuit courts. 610 F.3d at 534 & n.18. Some courts in other circuits have attempted to articulate standards such as whether the nature of a disease requires privacy protection, but 21 there is general agreement that a prisoner’s right to privacy in medical records is limited. See, e.g., Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (the only medical conditions that 22 warrant privacy protection are those of an “excruciatingly private and intimate nature” or are “likely to provoke both an intense desire to preserve one’s medical confidentiality, as well as 23 hostility and intolerance from others”); Payne v. Taslimi, 998 F.3d 648, 658 (4th Cir. 2021) (prisoner had no reasonable expectation of privacy in information about his HIV status, 24 mentioned by doctor at bedside in the prison’s medical unit); Archie v. Smith, No. 20-cv-7649 (NLH) (KMW), 2020 WL 6938360, at *2 (D.N.J. Nov. 25, 2020) (Covid-19 “is not an ‘unusual 25 medical condition’ that would likely expose a person to ridicule or discrimination”). 26 4 Certain kinds of status or category disclosures may be inherently unavoidable in the circumstances of a pandemic. For example, if all prisoners had been tested and the housing unit 27 was allowed to program, this would have implicitly informed everyone that all of them had tested and none of them had positive results. 28 1 Assuming that the information on the quarantine sign does indeed constitute a potentially 2 protected medical record, there is no genuine issue that displaying quarantine information on 3 plaintiff’s cell door did not violate whatever constitutional right to privacy plaintiff may have 4 under Seaton. Plaintiff claims that there was no legitimate penological interest in placing a sign 5 which was visible to inmates who were able to move about the prison and see it. ECF No. 58 at 6 2. To the contrary, there are obvious legitimate penological reasons, of the sort explicitly 7 contemplated in Seaton, for posting the quarantine sign on plaintiff’s door. 8 Protection from contagious disease is a legitimate penological concern. Seaton, 610 F.3d 9 at 535. Prison administrators have a duty to protect other prisoners and staff from persons with 10 contagious conditions. Id. In the circumstances of a pandemic, prison administrators have a 11 legitimate penological reason to identify the presence of persons whose potentially contagious 12 status has not been determined. Other persons present in the prison may need to take appropriate 13 measures to protect against contagion insofar as possible, especially in unforeseen circumstances 14 such as an emergency requiring immediate interventions and close contact. Plaintiff has the 15 burden to show an absence of legitimate penological reasons for the sign. Seaton, 610 F.3d at 16 535. He has failed to carry this burden. This is sufficient reason to grant summary judgment for 17 defendants as a matter of law. 18 2. Defendants’ Other Arguments 19 Defendants each declare that the California Correctional Health Care Services (CCHCS) 20 issued Interim Guidance5 for clinical management of the Covid-19 pandemic at California prison 21 facilities and that the guidance included 22 … policies and procedures for treating inmates with suspected COVID-19; providing clinical and testing criteria for releasing inmates from isolation after the 23 onset of symptoms and/or positive test results for COVID-19; testing inmates for COVID-19; isolating or quarantining inmates who contacted COVID-19; and 24 removing inmates from isolation or quarantine. 25 ECF No. 54-4 at 2, ¶ 4 (Auld); ECF No. 54-5, ¶ 3 (Malet); ECF No. 54-6 at 2, ¶ 4 (Hla). It is 26 5 The parties have not submitted a copy of the Interim Guidance. A CCHCS webpage on the topic of “COVID-19 and Seasonal Influenza: Interim Guidance for Health Care and Public 27 Health Providers” merely states that the page is under revision to reflect changes in current response efforts. See https://cchcs.ca.gov/covid-19-interim-guidance/. 28 1 implied but unclear from defendants’ declarations whether there was a directive for the sign that 2 was placed on plaintiff’s door, and whether such a directive came from the Interim Guidance or 3 was issued separately by prison administrators. 4 Each of the defendants also declares that they did not contribute to the formulation of: (1) 5 the Interim Guidance; (2) the policies and procedures concerning inmates at the prison and 6 Covid-19; or (3) policies or procedures regarding the suspension of inmate programming until all 7 inmates had complied with Covid-19 testing procedures. The defendants each declare that they 8 did not authorize or put the sign on plaintiff’s door. 9 Plaintiff maintains it is immaterial whether defendants made the relevant policy decisions, 10 or whether they specifically authorized or placed the sign on his door. His position is that 11 defendants are supervising medical professionals who “are ultimately responsible for all medical 12 actions for their patients.” ECF No. 58 at 1. Plaintiff argues that the quarantine, the quarantine 13 sign and the information displayed on it, and the pause in inmate programming, are all “medical 14 decisions.” Id. at 1-2. However, it is not a foregone conclusion that these were purely non- 15 custodial, medical policies and decisions made solely by medical professionals, and indeed 16 defendants deny that they made these policies and decisions. The above discussion of Seaton 17 demonstrates that legitimate penological concerns often outweigh any privacy interest a prisoner 18 has in his medical information, and plaintiff has failed to show there were no legitimate 19 penological reasons for the quarantine sign on plaintiff’s door. 20 It therefore appears that the actual nature of plaintiff’s Fourteenth Amendment claim 21 against defendants is that they allegedly failed to safeguard his medical information in the face of 22 a legitimate penological interest in disclosing it. Such a claim cannot succeed under Seaton. 23 Because legitimate penological interests prevail, defendants as supervising medical professionals 24 cannot have violated any privacy right by their action or inaction regarding the minimal 25 disclosures on the quarantine sign. This is another independent and adequate basis for granting 26 defendants’ motion for summary judgment. 27 //// 28 //// 1 3. Defendants’ Qualified Immunity Argument 2 Defendants argue they are entitled to qualified immunity because it was not clearly 3 established as of December 2020 that placing the sign on plaintiff’s door could violate plaintiff’s 4 Fourteenth Amendment right to medical privacy. ECF No. 54 at 22 (citing Huling). The court 5 addresses the qualified immunity argument, even though it is recommending that defendants’ 6 motion for summary judgment be granted on its merits, because plaintiff continues to argue that 7 he may have a claim against those responsible for the signage policy. See ECF No. 61; see also 8 ECF No. 58 at 3 (plaintiff argues that defendants “are in no way entitled to qualified immunity” 9 because they are “each responsible for the treatment of their patients as medical professionals”). 10 Qualified immunity protects government officials from civil liability where “their conduct 11 does not violate clearly established statutory or constitutional rights of which a reasonable person 12 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). A 13 defendant is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the 14 official violated a statutory or constitutional right, and (2) that the right was “clearly established” 15 at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2010). “Qualified 16 immunity gives government officials breathing room to make reasonable but mistaken judgments 17 about open legal questions.” Id. at 743. 18 Showing the unlawfulness of the conduct was “clearly established” requires a showing 19 that “at the time of the officer’s conduct, the law was sufficiently clear that every reasonable 20 official would understand that what he is doing is unlawful.” Id. (citation and internal quotation 21 marks omitted); see also Kisela v. Hughes, 540 U.S. 100, 105 (2018) (per curiam) (“An officer 22 ‘cannot be said to have violated a clearly established right unless the right’s contours were 23 sufficiently definite that any reasonable official in the defendant’s shoes would have understood 24 that he was violating it.’” (citation omitted)). “While there does not have to be ‘a case directly on 25 point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’” 26 Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021) (alteration in original) (quoting 27 Wesby v. District of Columbia, 583 U.S. 48, 64, 138 S. Ct. 577, 590 (2018)). 28 //// 1 The Supreme Court has warned courts not to define clearly established law “at too high a 2 level of generality.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (per curiam); Kisela, 540 3 U.S. at 104. “[T]he farther afield existing precedent lies from the case under review, the more 4 likely it will be that the officials’ acts will fall within that vast zone of conduct that is perhaps 5 regrettable but is at least arguably constitutional.” Hamby v. Hammond, 821 F.3d 1085, 1095 6 (9th Cir. 2016). But “officials can still be on notice that their conduct violated established law 7 even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that 8 “a general constitutional rule already identified in the decisional law may apply with obvious 9 clarity to the specific conduct in question, even though ‘the very action in question has [not] 10 previously been held unlawful’”) (alteration in original) (quoting United States v. Lanier, 520 11 U.S. 259, 271 (1997)). Whether such a clearly established right exists is “a question of law” for 12 the court to decide. Morales v. Fry, 873 F.3d 817, 819 (9th Cir. 2017)). 13 Even if the quarantine sign displayed constitutionally protected medical information, and 14 even if there was no legitimate penological purpose for doing so, and even if defendants were 15 responsible for placing the quarantine sign on plaintiff’s door or for the relevant policy on 16 signage, they would be entitled to qualified immunity because of the unsettled scope of any 17 constitutional right of privacy in prison medical records. In Scott v. Quigley, No. 3:23-cv-264- 18 ART-CLB, 2025 WL 1458001 (D. Nev. Apr. 29, 2025), defendants moved for summary 19 judgment solely on the basis of qualified immunity. The prisoner had alleged that cell side 20 consultations about his end-stage renal disease violated his right to medical privacy. 21 The Scott court noted that “whether a constitutional right to information privacy even 22 exists, remains unsettled.” Id. at *4. There were legitimate penological reasons for conducting 23 the consultations and they “did not involve sensitive medical information that would not 24 otherwise be known to other offenders in the unit given the frequency of [the prisoner’s] 25 transportation to dialysis.” Id. Therefore, reasonable medical providers “would not have known 26 that their conduct violated the law.” Id. at 5 (collecting cases finding legitimate penological 27 reasons for disclosure of medical information). As in Scott, defendants here would not have 28 known that placing the quarantine sign on plaintiff’s cell door violated the law according to the 1 uncertain scope of prisoners’ right to medical privacy. Qualified immunity is a sufficient and 2 independent reason to grant defendants’ motion for summary judgment. 3 4. Futility Of Amendment 4 As noted, plaintiff unsuccessfully attempted to add a claim against CCHCS as the entity 5 responsible for requiring the quarantine sign, but the amendment was denied based on Eleventh 6 Amendment immunity. ECF Nos. 60, 62. Defendants, for their part, have stated that CCHCS 7 “promulgated the policies and procedures for the clinical management of the COVID-19 8 Pandemic at CDCR facilities.” ECF No. 54 at 16. Plaintiff has sought to discover who is 9 responsible for the signage policy, ECF No. 45 at 5, and it seems he still maintains that he may 10 have an actionable claim against whoever is responsible for the policy (whether CCHCS, or not). 11 See ECF No. 61. 12 In light of the analysis above, any further amendment of the operative complaint to add a 13 Fourteenth Amendment claim against persons who may be responsible for the placement of the 14 quarantine sign, or who may be responsible for the policy regarding quarantine signs, would be 15 futile. See Ctr. For Bio. Diversity v. United States Forest Serv., 80 F.4th 943, 956 (9th Cir. 2023) 16 (“Amendment is futile when ‘it is clear … that the complaint could not be saved by any 17 amendment.’” (quoting Armstrong v. Reynolds, 22 F. 4th 1058, 1071 (9th Cir. 2022))). If the 18 quarantine sign on his cell door did not violate plaintiff’s rights under the Fourteenth 19 Amendment, then plaintiff cannot state any claim against anyone responsible for formulating the 20 policy on quarantine signs. 21 Eighth Amendment Failure To Protect Claim 22 A. Legal Standard 23 To establish a constitutional violation “based on a failure to prevent harm, the inmate must 24 show that he is incarcerated under conditions posing a substantial of serious harm.” Farmer v. 25 Brennan, 511 U.S. 825, 834 (1994). An inmate’s Eighth Amendment rights are violated by a 26 prison official if that official exposes an inmate to a “substantial risk of serious harm,” while 27 displaying “deliberate indifference” to that risk. Id. An official, however, is only liable if the 28 “culpable action, or inaction[] is directly attributed to them” Starr v. Baca, 652 F.3d 1202, 1205 1 (9th Cir. 2011). Further, a plaintiff must have suffered some type of pain or harm that is more 2 than de minimis in order to implicate the Eighth Amendment. See, e.g., Shapley v. Nevada Bd. of 3 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“delay of surgery, without more, is 4 insufficient to state a claim of deliberate medical indifference … unless the denial was harmful”). 5 B. The Evidentiary Record 6 Plaintiff alleges an “unreasonable exposure to threat of safety.” ECF No. 45 at 6. The 7 SAC alleges plaintiff received multiple threats from inmates to comply with testing because the 8 quarantine sign on his door identified him as “the one disrupting the general program.” Id. The 9 threats were allegedly yelled “from cell to cell.” Id. Plaintiff claims that these threats “coerced” 10 him into “ultimately complying with testing against his wishes in fear for his safety.” Id. He 11 claims defendants knowingly exposed him to a potential threat and made him a target for other 12 inmates. 13 Plaintiff’s more detailed deposition testimony tempers some of his allegations. Plaintiff 14 saw the quarantine sign when he stepped out of his cell to pick up his meal. ECF No. 54-7 at 12 15 ll.14-15; id. at 15 ll.19-23. He assumes that defendants, as supervising nurse and supervising 16 doctors, were responsible for the quarantine sign. Id. at 20 ll.2-5, 14-17; id. at 21 ll.4-10; id. at 22 17 ll.1-7; id. at 22 l.19 to 23 l.4. Plaintiff testified somewhat confusingly that prison officials 18 announced that the whole building would remain under “lockdown” until everyone complied with 19 testing. Id. at 16 ll.12-15. However, plaintiff also testified that the non-quarantined inmates were 20 not confined to their cells. Tr. 25. It thus appears that non-quarantined inmates were simply not 21 allowed to have their “general program,” meaning their normal activities such as classes. See 22 ECF No. 45 at 6; ECF No. 54-7 at 18 ll.9-11. Because non-quarantined inmates were allowed to 23 leave their cells, they could walk around and see the “multiple” signs scattered around the 24 building showing which inmates failed to test. Tr. 25; ECF no. 54-7 at 18 ll.1-2. 25 There were multiple prisoners refusing to test, and so the programming halt was not just 26 because of plaintiff’s refusal. ECF No. 54-7 at 18 ll.4-9. Right after the quarantine 27 announcement, or perhaps within a day or two, someone shouted out “‘you guys better start 28 testing.’” Id. at 17 ll.20-21. Plaintiff heard at least one other similar shouted threat within the 1 first day or two of the quarantine. Id. at 17 ll.6-9. He does not know who shouted. Id. at 16 2 ll.10-12. No one approached plaintiff’s door or threatened him personally. Id. 18 ll.12-16. 3 Plaintiff had no contact with other inmates during the quarantine. Id. at 14 ll.11-12; id. at 15 ll.3- 4 5. He was not harmed by other inmates. Id. at 18 ll.23-25. 5 Plaintiff remained in quarantine for “[a] couple weeks, [a] week, [m]aybe two” before 6 complying with testing. Id. at 14 ll.13-15. Starting to test “seemed to be the only way to remove 7 myself from quarantine” and was his “only option” to avoid harm from other inmates, although 8 he “can only speculate” and has “no idea” how other inmates could have harmed him while 9 confined in his cell. Id. at 14 ll.16-17; id. at 18 l.25 to 19 l.5. 10 C. Analysis 11 Defendants argue that plaintiff’s testimony, taken as true, shows he was not subjected to 12 an objective or actual threat from other inmates, and was never actually deprived of his safety in a 13 sufficiently serious manner to support an Eighth Amendment claim. ECF No. 54 at 18-19. Id. 14 The court agrees. 15 There is no genuine dispute that other inmates did not make threats directed personally at 16 plaintiff as a result of the quarantine sign. There were multiple inmates who refused to test, not 17 just plaintiff. The two shouted statements that plaintiff claims to have heard in the first or second 18 day of the quarantine are more in the nature of admonitions than threats (“you guys better start 19 testing”), and there is no indication the shouts were directed specifically at plaintiff. Plaintiff has 20 no other evidence of any threat directed toward him. 21 Plaintiff admits he suffered no actual harm. Finally, plaintiff waited at least a week, and 22 possibly two weeks, before he consented to testing. This evident lack of urgency about having 23 the sign removed is another indication that plaintiff experienced no objective or actual threat from 24 other inmates because of the quarantine sign. 25 Even if plaintiff had shown an actual and substantial risk of serious harm because of the 26 quarantine sign, he has not shown that defendants were responsible -- let alone deliberately 27 indifferent -- for endangering him through formulating policy or placing the sign on his door, as 28 discussed above. For all these reasons, plaintiff has failed to show a genuine issue of material 1 fact for trial, and defendants are entitled to summary judgment on plaintiff’s Eighth Amendment 2 claim.6 3 Grievance Exhaustion 4 Finally, the parties agree that plaintiff exhausted a single health care grievance about the 5 sign on his door. ECF No. 45 at 10-20. Defendants argue that this grievance failed to identify 6 them by name and title. They also point out that plaintiff’s grievance did not mention “threats 7 from other inmates or anything else that allegedly constituted an excessive risk to Plaintiff’s 8 health or safety.” ECF No. 54 at 24. 9 The grievance complained only that: (1) “[t]he current quarantine length according to 10 CDCR guidelines is 10 days, not 21;” (2) the quarantine sign violated plaintiff’s private medical 11 information; and (3) plaintiff has a right to refuse health care services. ECF No. 45 at 11, 12. 12 Plaintiff was required to list all staff members involved in the grievance issue or at least 13 describe their involvement to the best of his knowledge. Cal. Code Regs. tit. 15 § 3084(c)(2). 14 Plaintiff’s failure to name defendants in his grievance is not fatal in this instance, because the 15 grievance acknowledges that quarantine measures were being implemented according to 16 guidelines. This appears to have been a sufficient effort to assign responsibility for the quarantine 17 sign to the best of plaintiff’s knowledge. See Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016) (a 18 grievance sufficiently identified staff where prison officials “plainly knew that the Pain 19 Management Committee, of which Drs. Smith and Heatley were members, had decided Reyes 20 should not receive the medication”). 21 However, the grievance only mentioned plaintiff’s issue about medical information 22 privacy, and not his issue about failure to protect from threats to safety. Therefore, the grievance 23 only exhausted plaintiff’s Fourteenth Amendment claim and not his Eighth Amendment claim. 24 This is another independent and sufficient reason to dismiss the Eighth Amendment claim. 25 //// 26 //// 27 6 The court need not reach defendants’ qualified immunity argument on plaintiff’s Eighth 28 Amendment claim. 1 RECOMMENDATION 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant’s motion 3 || for summary judgment (ECF No. 54) be granted, judgment entered for defendant, and this case 4 | closed. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be filed and served within fourteen days after service of the objections. The 11 | parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 14 || Dated: September 5, 2025 Za! WUltiz > DYE 4 EDMUND F. BRENNAN 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 15