George v. Diaz

Background

Joseph Anthony George, a prisoner at Pelican Bay State Prison, filed this civil-rights lawsuit under 42 U.S.C. § 1983 without a lawyer. He sued the Secretary and Chief Medical Executive of the California Department of Corrections and Rehabilitation, along with the warden and Chief Medical Executive at Pelican Bay. He alleged that prison officials had no adequate plan for preventing or treating COVID-19, lacked testing and medical equipment, allowed staff to return from vacation without negative tests, and transferred prisoners without adequate precautions.

George alleged that he had heart disease and lung damage and would die if infected. He also alleged that he had traveled through four prisons without masks or temperature checks and was later quarantined at Pelican Bay, where medical staff allegedly did not usually wear masks. He did not allege that he had contracted COVID-19. He requested an emergency order requiring defendants to create and implement a comprehensive COVID-19 plan and preventing his transfer to another prison until a vaccine became available.

Screening of the Complaint

Because George was a prisoner suing government officials, the court screened the complaint under 28 U.S.C. § 1915A. The court explained that a claim under § 1983 requires a violation of a federal right by someone acting under state law. For an Eighth Amendment claim based on unsafe prison conditions or medical care, a prisoner must show both a sufficiently serious deprivation and that an official knowingly disregarded a substantial risk of serious harm.

The court concluded that the complaint did not plausibly allege deliberate indifference. It took judicial notice that the California Department of Corrections and Rehabilitation had developed plans addressing COVID-19, including plans concerning inmate movement, health care, release, hygiene, and sanitation. The court did not find that those plans had been implemented or would be effective; it found only that the plans existed. The court also stated that the allegations about masks and temperature checks did not, on the facts alleged, show deliberate indifference, noting the timing of public-health recommendations and restrictions and that George had not become sick during the alleged transportation conditions.

The court dismissed the complaint with leave to amend. It directed George to allege facts plausibly showing that each defendant had been deliberately indifferent to a serious medical need and cautioned him to limit the amended complaint to his own rights rather than those of other prisoners.

Temporary Restraining Order and Preliminary Injunction

The court denied George’s motion for a temporary restraining order or preliminary injunction. It held that he had not shown a likelihood of success because he had not yet stated a claim. It also found that his three-page verified motion, without additional supporting evidence, did not establish likely and immediate irreparable harm. The court noted that the existence of a CDCR plan did not by itself establish that the plan was effective or being followed, but George had not challenged a specific existing plan or supplied competent evidence that the steps taken amounted to deliberate indifference.

As to the requested transfer prohibition, the court found no evidence that officials were planning to transfer George in the near future. It also noted that his security-housing-unit term was scheduled to expire in mid-August and that COVID-19 conditions could change before then. Finally, because defendants had not yet been served, the court found that George had not satisfied the requirements for an emergency order issued without notice, including showing immediate and irreparable harm before defendants could respond.

Request for Counsel and Disposition

The court denied George’s request for appointed counsel. It explained that appointment in a civil case requires exceptional circumstances, evaluated by considering the likelihood of success and the plaintiff’s ability to present his claims in light of the legal issues. The court found that exceptional circumstances were not present, including because the likelihood of success appeared low and George had demonstrated an ability to present his claims without a lawyer.

Judge Susan Illston ordered George to file an amended complaint by June 29, 2020. The amended complaint had to be complete, use the case caption and civil case number, and state “AMENDED COMPLAINT” on its first page. The order stated that failure to meet the deadline would result in dismissal of the action. The court denied both the motion for a temporary restraining order or injunction and the motion for appointment of counsel.