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-EFB (PC) 12 Plaintiff, 13 v. ORDER 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. In addition to filing a complaint (ECF No. 1), he has also filed an application to 19 proceed in forma pauperis (ECF No. 2). 20 Application to Proceed In Forma Pauperis 21 The court has reviewed plaintiff’s application and finds that it makes the showing required 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 Screening Requirements 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 6 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 7 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 8 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 9 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 10 has an arguable legal and factual basis. Id. 11 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 14 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 16 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 17 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 18 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 19 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 20 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d ed. 21 2004)). 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 24 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 25 that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 27 under this standard, the court must accept as true the allegations of the complaint in question, 28 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 1 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 Screening Order 4 Plaintiff’s complaint alleges the following: For a period of time, plaintiff refused to be 5 tested for Covid. ECF No. 1 at 3. Plaintiff believed that the testing was not being done in a safe 6 and hygienic manner and feared a false positive test would result in his placement in a 7 gymnasium full of sick inmates. Id. A sign reading “Failure to Test - 21 Day Medical 8 Quarantine Required,” was placed on his door. Id. at 3, 8. Plaintiff claims the 21-day quarantine 9 period was “excessive” and “punitive.” Id. at 4. He further claims that the sign on his door put 10 him in “harm’s way by making [him] a target to the rest of the inmate population.” Id. Plaintiff 11 has since complied with the testing requirement but only because he feared repercussions if he did 12 not. Id. He also claims that he is tested too frequently. Id. From these allegations, plaintiff 13 asserts the following claims: a violation of his right to privacy as established by the Health 14 Insurance Portability and Accountability Act (“HIPPA”), violations of his rights under the Eighth 15 Amendment, and a due process violation under the Fourteenth Amendment. Id. at 3, 4, 5. For the 16 reasons stated below, the complaint fails to state a claim upon which relief could be granted. 17 As an initial matter, the court notes that there is no basis for a claim under HIPAA or the 18 due process clause of the Fourteenth Amendment. Plaintiff cannot state a claim under HIPAA 19 because HIPAA does not provide a private right of action. See Webb v. Smart Document 20 Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Further, plaintiff has not alleged he was 21 deprived of a property or liberty interest that is protected by the Due Process Clause. See Walker 22 v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 23 1997). The court cannot discern a basis for any due process claim on the facts alleged here. 24 As for the Eighth Amendment claim, it appears to be based on the allegations that (1) the 25 posting on plaintiff’s cell door coerced him to take the Covid tests, which are being administered 26 too frequently; and (2) the 21-day quarantine was excessive. This court concurs with another 27 magistrate judge in this court who previously screened out nearly identical allegations for failure 28 to state a claim: 1 a. Coercion to Test

2 To state an excessive force claim, plaintiff must allege facts showing that he was subjected to excessive physical force that was applied “maliciously and 3 sadistically to cause harm” rather than “in a good-faith effort to maintain or restore 4 discipline.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (internal quotation omitted). 5 Plaintiff fails to state a claim for a number of reasons. Plaintiff fails to 6 show that the cell door posting regarding his refusal to take a COVID test was 7 done maliciously to coerce him to take the test rather than for the legitimate purpose of protecting correctional officers and others. Nor has plaintiff shown the 8 testing itself amounted to excessive force. Plaintiff does not explain just what the tests entailed. At least one court has approved testing as invasive as a deep nasal 9 swab. See Wilcox v. Lancour, No. 2:20-cv-0183, 2021 WL 230113 (W.D. Mich. Jan. 22, 2021). 10

11 Courts have held that prisons have legitimate reasons to conduct regular testing or prisoners for COVID-19. As explained recently by a Nebraska district 12 court:

13 [T]here can be little doubt that Defendants in the instant case had a legitimate penological purpose in testing the prison population for 14 the SARS-CoV-2 virus. In the context of an Eighth Amendment 15 challenge to precautions taken by a federal prison in the face of the COVID-19 pandemic, the Sixth Circuit has held that COVID-19 16 poses a substantial risk of serious harm to prison inmates, given the substantial risk of contagion to those housed in close-contact 17 situations, such as prisons, as well as the serious risks to health and life when the disease is contracted. See Wilson v. Williams, 961 F.3d 18 829, 840 (6th Cir. 2020) (recognizing the seriousness of both the 19 transmissibility of COVID-19 in the prison setting and the health risks to individuals who contract the disease). Under these 20 circumstances, Defendants had a legitimate—indeed compelling— governmental interest in testing all prisoners for the presence of the 21 SARS-CoV-2 virus, in order to meet its obligations to control contagion and to protect its other prisoners and staff. See Jolly v. 22 Courghlin, 76 F.3d 468, 477 (2d Cir. 1996) (holding that a prison had 23 a compelling state interest in mandatory tuberculosis testing); Dunn v White, 880 F.2d 1188, 1195 (10th Cir. 1989) (holding that a prison 24 had a legitimate penological interest in ascertaining the extent of contagion that justified coercive blood testing for AIDS); Wilson v. 25 Wilkinson, 608 F. Supp. 2d 891 (S.D. Ohio 2007) (upholding state statute requiring mandatory DNA testing of prisoners against Fourth 26 Amendment challenge); see also McDougald v. Stone, No. 1:17-cv- 27 72, 2017 WL 8222430, at *5 (S.D. Ohio Aug. 22, 2017) (finding legitimate penological interest in mandatory blood-draw of prisoner 28 who spit on officer). 1 Webb v. Johnson, No. 4:21-cv-3042, 2021 WL 2002712, at *6 (D. Neb. May 19, 2 2021).

3 Plaintiff fails to allege facts showing frequent COVID-19 testing was 4 conducted maliciously and sadistically to cause harm or that he, in fact, suffered any harm from being required to test. While this court finds it very unlikely plaintiff can 5 state a claim cognizable under § 1983 based on any coercion resulting from the posting, he will be permitted to amend his complaint to attempt to do so. 6

7 b. Length of Quarantine

8 Plaintiff’s claim that a 21-day rather than a 14-day quarantine amounted to excessive punishment in violation of the Eighth Amendment does not amount to a 9 cognizable claim under § 1983. Plaintiff fails to allege facts sufficient to show that the additional seven days in quarantine amounted to an “excessive risk of harm to 10 his health or safety.” Cervantes v. Adams, 507 F. App’x 644 (9th Cir. 2013) (citing 11 See Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Further, plaintiff does not provide any facts showing that defendants were responsible for the length of his 12 quarantine. While, again, this court finds it unlikely plaintiff can state a claim regarding the length of his quarantine, he will be permitted to attempt to do so in 13 any amended complaint. 14 Fialho v. Auld, No. 2:21-cv-1698-KJM-DB (E.D. Cal.), ECF No. 13 at 5-6. 15 Leave to Amend 16 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an 17 amended complaint it should observe the following: 18 Any amended complaint must identify as a defendant only persons who personally 19 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 20 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 21 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 22 legally required to do that causes the alleged deprivation). The complaint should also describe, 23 in sufficient detail, how each defendant personally violated or participated in the violation of his 24 rights. The court will not infer the existence of allegations that have not been explicitly set forth 25 in the amended complaint. 26 The amended complaint must contain a caption including the names of all defendants. 27 Fed. R. Civ. P. 10(a). 28 ] Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 || George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 3 Any amended complaint must be written or typed so that it so that it is complete in itself 4 | without reference to any earlier filed complaint. E.D. Cal. L-R. 220. This is because an amended 5 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 6 || earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 7 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 8 | being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 | 1967)). 10 Finally, the court notes that any amended complaint should be as concise as possible in 11 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 12 || procedural or factual background which has no bearing on his legal claims. 13 Conclusion 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is GRANTED; 16 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 17 in accordance with the notice to the California Department of Corrections and 18 Rehabilitation filed concurrently herewith; 19 3. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30 20 days of service of this order; and 21 4. Failure to comply with this order may result in dismissal of this action. 22 || DATED: September 22, 2022. 23 24 Dating heb bien 25 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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