1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM MILTON, et al., Case No. 23-cv-00582-JST

8 Plaintiffs,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 CALIFORNIA DEPARTMENT OF Re: ECF No. 45

CORRECTIONS AND REHABILITATION

11 CTF- SOLEDAD, et al., Defendants. 12 13 14 Before the Court is Defendants’ motion to dismiss. ECF No. 45. The Court will grant the 15 motion. 16 I. BACKGROUND 17 This action stems from an alleged incident—“Operation Akili”—that occurred on July 20, 18 2020 at Correctional Training Facility (“CTF”) Soledad. Because the facts are well-known to the 19 parties and the Court has summarized the Plaintiffs’ allegations in detail in its prior motion to 20 dismiss orders, Adams v. California Dep’t of Corr. & Rehab. (“Adams”), No. 21-cv-08545-JST, 21 ECF No. 33, and Milton, ECF No. 35, the Court will not elaborate them here. 22 To summarize, a group comprising 52 presently or formerly incarcerated persons filed a 23 complaint on November 3, 2021 on behalf of themselves and a class seeking redress for alleged 24 injuries they suffered as a result of Operation Akili. Adams, ECF No. 1. Of those fifty-two 25 Plaintiffs, forty-six Plaintiffs (“Incident Plaintiffs”), all of whom are Black, were roughly 26 awakened in the middle of the night by a group of about three dozen officers, removed from their 27 beds, and transported to a dining hall for holding and interrogation. See generally id. ¶¶ 125–538. 1 Incident Plaintiffs’ COVID-19 safety concerns, and those Incident Plaintiffs were generally not 2 permitted to retrieve masks, clothes, or shoes to wear. Id. 3 To address concerns regarding the scope and manageability of Plaintiffs’ initial complaint, 4 the Court exercised its discretion to sever and dismiss without prejudice the claims of the six 5 COVID-19 Plaintiffs who were not present for the July 2020 incident. Adams, ECF No. 33 at 10. 6 The Adams action proceeded only with the claims of the Incident Plaintiffs. 7 Plaintiffs then brought this action on behalf of the six COVID-19 Plaintiffs who were not 8 present for the July 2020 incident but allege to have contracted COVID-19 as a result of it, 9 including: William Pardue (on behalf of himself and the estate of his son Raemon Pardue), Robert 10 Clark, Adam Sanford, Saul Pelayo, William Milton, and Vickter Estrada. ECF No. 1 ¶¶ 18–24. 11 There were no COVID-19 infections at CTF Soledad prior to the July 2020 incident, and 12 the first reported cases of COVID-19 at the facility occurred among individuals housed near the 13 interrogation site, at least one of whom was present for the incident. Id. ¶¶ 309–15, 648. Within 14 approximately ten days of the July 2020 incident, Raemon Pardue contracted COVID-19. Id. 15 ¶ 407. D-Wing, where Raemon resided, went into quarantine on August 1, 2020. Id. ¶ 454. 16 Estrada, Milton, Pelayo, Sanford, and Clark each contracted the virus between August and 17 December 2020. Id. ¶¶ 400, 404, 421, 426, 433. 18 In its prior order, the Court granted Defendants’ motion to dismiss in part and dismissed 19 Estrada, Pelayo, and Sanford with prejudice for failure to exhaust administrative remedies. ECF 20 No. 35 at 17. The Court also dismissed the following claims with prejudice: violation of the 21 Biological Weapons Anti-Terrorism Act, 18 U.S.C. § 175; violation of the California Prevention 22 of Terrorism Act, Cal. Penal Code §§ 11415, et seq.; civil RICO, 18 U.S.C. § 1961; conspiracy to 23 commit civil RICO; civil rights terrorism, 18 U.S.C § 175 and 42 U.S.C. § 1983; conspiracy to 24 commit terrorism by inflicting disease, 18 U.S.C § 175 and 42 U.S.C. § 1985. See id. 25 Plaintiffs Milton, Pardue, and Clark now assert six causes of action through their first 26 amended complaint: violation of the Eighth Amendment by infliction of disease, 42 U.S.C. 27 § 1983; racial discrimination in the commission of federally-sponsored terrorism, 42 U.S.C. 1 negligent supervision.1 2 II. JURISDICTION 3 The Court has subject matter jurisdiction over Plaintiffs’ federal law claims pursuant to 28 4 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiffs’ state law causes of action 5 under 28 U.S.C. § 1367. 6 III. LEGAL STANDARD 7 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 8 complaint must contain “a short and plain statement of the claim showing that the pleader is 9 entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Dismissal under [Federal Rule of Civil Procedure] 10 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts 11 to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 12 1104 (9th Cir. 2008). Facts pleaded by a plaintiff “must be enough to raise a right to relief above 13 the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a 14 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 16 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. In determining whether a plaintiff has met this plausibility standard, the 19 Court must “accept all factual allegations in the complaint as true and construe the pleadings in the 20 light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 21 2005). 22

IV. DISCUSSION

23

A. COVID-19 Related Claims

24 Defendants move to dismiss all of Milton’s and Clark’s claims on the ground that they 25 26 1 All claims are set forth against all Defendants except CDCR with two exceptions: first, the 27 Section 2000(d) claim is only set forth against Defendant CDCR and second, the negligent 1 have not shown that Defendants caused them to contract COVID-19 via Operation Akili. ECF 2 No. 45 at 9. 3 As the Court stated in its previous order, “[a]t the outset, a fundamental premise bears 4 emphasis: each COVID-19 Plaintiff needs to prove that Defendants’ actions on July 20, 2020 5 caused their COVID-19 infection. With this principle in mind, the Court will address each 6 remaining Plaintiff.” ECF No. 35 at 8. 7 Plaintiffs have not amended the facts pleaded regarding their contraction of COVID-19 or 8 how it was related to the July 2020 incident. See ECF No. 46 at 17 (“[I]t is true that the amended 9 complaint does not offer new facts about Milton’s personal experience.”). Instead, Plaintiffs have 10 submitted a study about how a conference at the Boston Marriott Hotel became a superspreader 11 event to show that it is possible for a single event to “infect people four months after the ground 12 zero contraction.” See ECF No. 46 at 17 (citing ECF No. 40, Ex. 15, (Lemieux, et al., 13 Phylogenetic Analysis of SARS-CoV-2 in Boston Highlights the Impact of Superspreading Events, 14 371 Science 588 (2021))). Plaintiffs claim that the study concluded that the Boston conference, 15 which took place on February 26–27, 2020, became a superspreader event resulting in an 16 estimated 245,000 cases detected across 29 states, nine months later—and that all cases were 17 genetically traceable to the specific strain that originated at that conference. See ECF No. 46 at 18 17–18. Plaintiffs argue that based on this study, “it seems a bit more than plausible that the same 19 Covid-19 strain that infected the inmates in D-Wing in July 2020 could, indeed, reach Milton four 20 months later, who, housed in X-Wing, was not 2,700 miles away, but 500 feet away.” Id. at 17. 21 Plaintiffs misinterpret the Court’s previous order. Even assuming that the Boston study 22 stands for the conclusions that Plaintiffs attribute to it, those conclusions show only that it was 23 possible that the strains of COVID-19 contracted by Milton and Clark were genetically traceable 24 to the strains of COVID-19 allegedly introduced by Defendants on July 20, 2020. The Boston 25 study does not show that Defendants were more likely the proximate cause of Milton and Clark’s 26 COVID-19 infection—given the amount of time that passed between Operation Akili and Milton’s 27 and Clark’s contractions of disease and the many variables that factor into disease spread. As the 1 days after Operation Akili, it does not provide sufficient facts demonstrating that Clark’s infection 2 was proximately caused by the July 2020 incident as opposed to many other potential sources of 3 that disease.” ECF No. 35 at 9. The same applies with even more force for Milton, who 4 contracted COVID-19 four months after Operation Akili. Accordingly, the Court dismisses all 5 claims of Milton and Clark without leave to amend for failure to plausibly plead causation. 6 B. Ralph Act 7 As relevant here, the California Ralph Act requires “violence, or intimidation by threat of 8 violence.” Cal. Civ. Code § 51.7(b)(1). The Court previously found that a Ralph Act claim was 9 not viable because Plaintiffs themselves were not subject to violence or threats of violence, as 10 none of them were personally subject to Operation Akili. ECF No. 35 at 13 (citing Campbell v. 11 Feld Ent., Inc., 75 F. Supp. 3d 1193 (N.D. Cal. 2014) (stating that “violence . . . demands more 12 than mere application of physical force”) (internal quotations omitted). 13 Plaintiffs still do not allege that they were personally subject to violence or threats of 14 violence during Operation Akili, but instead argue that they can assert their Ralph Act claim 15 because they contracted COVID-19 due to force used on others. See ECF No. 40 ¶¶ 697–702.2 16 Because Plaintiffs continue to ignore the legal requirement that a Ralph Act plaintiff be personally 17 subjected to violence or threats of violence, the Court dismisses the Ralph Act claim without leave 18 to amend. 19 C. State Law Battery, Negligence, and Negligent Supervision 20 1. Battery 21 The Court previously dismissed Plaintiffs’ battery claim because “none of the Plaintiffs in 22 this action were involved directly in the events on the night of July 20, 2020,” so Plaintiffs do not 23 allege that any Defendant touched them—as required for a claim of battery. See ECF No. 35 at 24 14–15. 25

26 2 Plaintiffs once again argue that Defendants can also be liable because Defendants engaged in a conspiracy to harm them. ECF No. 46 at 26–27. As the Court stated before, while claims under 27 the Ralph Act may include “intimidation by threat of violence,” nothing in the Act itself suggests 1 Plaintiffs still do not allege that Defendants exerted any force on them either directly or 2 indirectly. Instead, they again assert their “derivative injuries” theory. They argue that because 3 Defendants physically attacked Lawrence Brown and infected him with COVID-19, Brown’s 4 subsequent infection of Plaintiffs with COVID-19 justifies Defendants’ liability for battery. See 5 ECF No. 46 at 28–29. As this merely repeats the same arguments that the Court previously found 6 to be insufficient, Plaintiffs’ battery claim is dismissed without leave to amend. 7 2. Negligence 8 Because Plaintiffs have not alleged that force was used against them, the Court dismisses 9 Plaintiffs’ negligence claim without leave to amend to the extent it is premised upon Defendants’ 10 alleged use of force. To the extent that Milton’s and Clark’s negligence claim is based upon a 11 failure to employ safety protection, social distancing protocols, and to minimize the spread of 12 infectious diseases, the Court dismisses this claim without leave to amend for lack of causation as 13 discussed above. 14 3. Negligent Supervision 15 “To establish negligent supervision, a plaintiff must show that the person in a supervisorial 16 position over the actor had prior knowledge of the actor’s propensity to do the bad act.” 17 Z.V. v. Cnty. of Riverside, 238 Cal. App. 4th 889, 902 (2015). The Court previously found that 18 “Plaintiffs’ threadbare allegations that ‘Defendant supervisors were unfit, incompetent, and 19 violated the standard of care’ fail to state a plausible claim to relief.” ECF No. 35 at 16 (quoting 20 ECF No. 1 ¶ 75). 21 Plaintiffs in their amended complaint still do not allege that Defendants had any prior 22 knowledge of any CDCR officer’s “propensity to do the bad act[s]” alleged here. See generally 23 ECF No. 40 ¶¶ 771–85; see also ECF No. 46 at 29–30. Accordingly, this claim is dismissed 24 without leave to amend. 25 D. California Government Claims Act 26 The California Government Claims Act, Cal. Gov. Code § 810 et seq., “is a comprehensive 27 statutory scheme that sets forth the liabilities and immunities of public entities and public 1 “requires that ‘all claims for money or damages against local public entities’ be presented to the 2 || responsible public entity before a lawsuit is filed.” City of Stockton v. Superior Court, 42 Cal. 4th 3 730, 734 (2007) (quoting Cal. Gov. Code § 905). A claim relating to a cause of action for death or 4 || injury to a person or to personal property must be presented to the public entity no later than six 5 months after the accrual of the cause of action. Cal. Gov. Code § 911.2(a). 6 Because Defendants argue that the required Government Claims form “is deficient [only] 7 as to Milton and Clark,” and the Court dismisses all of Milton’s and Clark’s claims without leave 8 || to amend, the Court need not address whether Milton and Clark have complied with the California 9 Government Claims Act. See ECF No. 45 at 14. 10 CONCLUSION 11 In sum, the Court grants Defendants’ motion to dismiss. All claims brought by Robert 12 || Clark and William Milton are dismissed without leave to amend. The sole remaining Plaintiff is 13 || William Pardue on behalf of the estate of Raemon Pardue. 14 The following claims are dismissed with prejudice: violation of the Ralph Act; state law 3 15 battery; state law negligent supervision; and state law negligence as to Milton and Clark. a 16 Pardue’s surviving claims are as follows: violation of the Eighth Amendment by infliction 3 17 of disease, 42 U.S.C. § 1983; racial discrimination of federally-sponsored terrorism, 42 18 || U.S.C. § 2000(d); and state law negligence (to the extent that Pardue’s negligence claim is based 19 || upon a failure to employ safety protection, social distancing protocols, and to minimize the spread 20 of infectious diseases). 21 IT IS SO ORDERED. 22 || Dated: February 18, 2025 .

23 JON S. TIGAR 24 nited States District Judge 25 26 27 28