I. BACKGROUND

1 The Court summarizes only the key facts; a more detailed summary is in the Court’s 2 prior order. See Order on MTD at 2-7. 3 On May 30, 2020, Defendants ordered the transfer to San Quentin of 122 CIM 4 inmates. FAC (dkt. 39) ¶ 34. “[M]ost or all of the men who were transferred had not been 5 tested for COVID-19 for at least approximately three or four weeks.” Id. “The transferred 6 inmates also were not properly screened for current symptoms immediately before being 7 placed on a bus.” Id. The inmates were “packed onto buses in numbers far exceeding 8 COVID-capacity limits that CDCR had mandated for inmate safety.” Id. ¶ 34. At San 9 Quentin, the new inmates were placed in an open-air housing unit. Id. ¶ 35. Within days, 10 25 had tested positive for COVID-19. Id. “Over three weeks, the prison went from having 11 no cases to 499 confirmed cases.” Id. By July 7, more than 1,300 inmates and 184 staff 12 members had tested positive. Id. ¶ 44. 13 As of June 2020, Polanco had “multiple high-risk factors for COVID-19,” including 14 obesity, diabetes, hypertension, diabetic nephropathy, hyperlipidemia, thrombocytopenia, 15 and age (he was 55). Id. ¶ 53. His obesity was “obvious.” Id. 16 When San Quentin faced staffing shortages—in part because corrections officers 17 “call[ed] in sick” or “out of fear”—Polanco “work[ed] additional hours, double shifts, and 18 often [came] home to San Jose to sleep for a scant few hours before making the trip back 19 up.” Id. ¶ 55. “[A]s the Active Lieutenant on Duty,” Polanco was required “to transport 20 sick inmates in need of care, including inmates sick with COVID-19, to local hospitals and 21 refused to provide employees or inmates with appropriately sanitized vehicles and 22 equipment, or with legally required N-95 respirators or other PPE, even though appropriate 23 PPE was available to Defendants.” Id. ¶ 56. Prison staff, including Polanco, “were 24 pleading for proper personal protective equipment.” Id. ¶ 42. But they were told that “to 25 the extent San Quentin had such PPE, it was reserved for medical professionals and not 26 front-line correctional officers and supervisors.” Id. 27 Polanco became infected with COVID-19 around June 21, 2020. Id. ¶ 58. On June 1 26, he began experiencing symptoms. Id. On June 28, he had a drive-thru test and was 2 informed on June 30 that it came back positive. Id. On August 9, he died of complications 3 caused by COVID-19. Id. ¶ 60. 4 The Court previously permitted most of Plaintiffs’ claims to proceed, and 5 Defendants appealed the Court’s denial of qualified immunity as to the Section 1983 6 claims. See Polanco v. California (appeal docketed, No. 22-15496). But the Court 7 dismissed Plaintiffs’ Bane Act claim:

8 [Plaintiffs] do not plead that any Defendant used a “threat, intimidation, or coercion.” Plaintiffs seem to assume they have 9 done so simply by pleading a Section 1983 claim. See Opp. at 17-18. But where courts hold that facts underlying a Section 10 1983 violation necessarily give rise to a Bane Act claim, they do so in the context of excessive force or wrongful arrest, where 11 “threat, intimidation, or coercion” are invariably present. See, e.g., Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 801–02 12 (9th Cir. 2018) (excessive force); Reese, 888 F.3d at 1035–36 (same); cf. Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 13 2013) (stating, a bit imprecisely, that “the elements of [an] excessive force claim under § 52.1 are the same as under § 14 1983”). In rejecting a Bane Act claim, a California Court of Appeal recently distinguished the excessive force/wrongful 15 arrest cases on the same ground, emphasizing that “[a]ny arrest without probable cause involves coercion.” Schmid v. City & 16 Cty. of San Francisco, 60 Cal. App. 5th 470, 483 (2021). Unlike an excessive force claim, a failure-to-protect claim does not 17 automatically encompass “threat, intimidation, or coercion.” Of course, in some broad sense, “coercion” is implicated any time 18 that an employer asks an employee to do his job. Cf. Compl. ¶ 84 (seeming to allege that the work conditions constituted 19 “threat, intimidation, or coercion”). But as currently pleaded, Plaintiffs do not come very close to suggesting that the 20 “coercion” attendant with Polanco’s employers instructing him to do his job during the COVID-19 outbreak at San Quentin was 21 a “threat, intimidation, or coercion” within the scope of the Bane Act. 22 Id. at 29-30. 23 In their amended complaint, Plaintiffs included more allegations. They allege that 24 the “increased threat of grave illness, harm and death” was “inherently threatening” to 25 Polanco and that Defendants “compelled [him] to be subjected to” these threats “upon pain 26 of losing his career and means of financial support for himself and his family.” FAC ¶ 84. 27 Plaintiffs further allege that Defendants: requir[ed] [him] to work in conditions that Defendants created 1 of unnecessarily heightened danger of contracting a deadly communicable disease, upon pain of losing his career and his 2 family’s financial support;

3 compel[ed] [him] to work and be in an environmentally toxic and deadly environment without adequate personal protective 4 equipment, despite the availability of such equipment; [and] . . .

5 requir[ed] [him] to repeatedly transport COVID-sick inmates to hospitals in unsanitized vehicles and without adequate PPE. 6 Id. ¶ 85(a), (b), (d). 7

II. LEGAL STANDARD

8 Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon 9 which relief may be granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) applies when a 10 complaint lacks either “a cognizable legal theory” or “sufficient facts alleged” under such 11 a theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019). 12 Whether a complaint contains sufficient factual allegations depends on whether it pleads 13 enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 14 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 15 A claim is plausible “when the plaintiff pleads factual content that allows the court to draw 16 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 17 678. When evaluating a motion to dismiss, the Court “must presume all factual allegations 18 of the complaint to be true and draw all reasonable inferences in favor of the nonmoving 19 party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “[C]ourts must 20 consider the complaint in its entirety, as well as other sources courts ordinarily examine 21 when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated 22 into the complaint by reference, and matters of which a court may take judicial notice.” 23 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 24 If a court dismisses a complaint for failure to state a claim, it should “freely give 25 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has 26 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the 27 part of the movant, repeated failure to cure deficiencies by amendment previously allowed, 1 undue prejudice to the opposing party by virtue of allowance of the amendment, [and] 2 futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 3 2008). 4 III. DISCUSSION 5 The Court dismisses the Bane Act claim because Plaintiffs’ new allegations still do 6 not establish that the Defendants interfered with Polanco’s rights “by threat, intimidation, 7 or coercion.” Cal. Civ. Code § 52.1. 8 The Bane Act “provides a cause of action for [1] violations of a plaintiff’s state or 9 federal civil rights [2] committed by ‘threats, intimidation, or coercion.’” Chaudhry v. City 10 of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1). The 11 “threat, intimidation, or coercion” element need not be independent from the rights 12 violation. Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). In cases 13 involving wrongful arrest or excessive force, the “threat, intimidation, or coercion” 14 element may be satisfied by “specific intent” to violate the victim’s rights. See Schmid v. 15 City & Cty. of San Francisco, 60 Cal. App. 5th 470, 483 (2021) (“Any arrest without 16 probable cause involves coercion, and where accompanied by evidence of specific intent to 17 violate the arrestee’s Fourth Amendment rights, such an arrest may provide the basis for a 18 Bane Act claim.”); see Reese, 888 F.3d at 1043-44 (excessive force plus specific intent 19 satisfies the Bane Act). Where the rights violation is “clearly delineated and plainly 20 applicable,” specific intent may be shown by “[r]eckless disregard of the ‘right at issue.’” 21 Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 803, 804 (2017). 22 Plaintiffs still fail to allege that any defendant used “threat, intimidation, or 23 coercion” while violating Polanco’s rights. They allege that Defendants “requir[ed]” or 24 “compelled” him to work “upon pain of losing his career.” See FAC ¶ 85(a). Yet the 25 same is true in all employment situations. The bare fact that a supervisor violated an 26 employee’s rights at work does not establish that the rights violation was “committed ‘by 27 threat, intimidation, or coercion.’” See Chaudhry, 751 F.3d at 1105. Plaintiffs are right 1 one’s family, would be frightening and deeply upsetting to a reasonable person.” Opp. 2 (dkt. 47) at 12. But just because a violation is deeply upsetting does not mean it involves 3 “threat, intimidation or coercion.” 4 Plaintiffs are mistaken that Cornell held the “threat, intimidation, or coercion” 5 element can always be “proven simply by the violation of a constitutional right if done 6 with specific intent.” Opp. at 6. Cornell cabined that rule to unlawful-arrest cases. In a 7 case involving “an unlawful arrest,” the key question is whether “the arresting officer had 8 a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not [ ] 9 whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful 10 detention.” 17 Cal. App. 5th at 801–02. That’s because some measure of coercion is 11 “inherent[ly]” present in a wrongful-detention case, so the question is whether there is 12 specific intent present to make the coercion sufficiently “egregious.” See id. at 801-02. 13 Cornell did not hold that specific intent is an all-purpose substitute for coercion. Such a 14 holding would essentially rewrite “threat, intimidation, or coercion” out of the Act. 15 Without more, allegations of deliberately indifferent failure to protect an employee 16 do not amount to a “threat, intimidation, or coercion.” As noted above, the use of 17 excessive force with specific intent may amount to a “threat, intimidation, or coercion.” 18 See Reese, 888 F.3d at 1044-45; Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 19 (9th Cir. 2018); cf. Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) 20 (coercion element might be satisfied where the defendant, with specific intent, impounded 21 a plaintiff’s vehicle in violation of the Fourth Amendment). And a defendant who acts 22 with deliberate indifference toward an inmate may satisfy the “threat, intimidation, or 23 coercion” element, as the custody context makes that violation especially coercive.1 See, 24

25 1 Plaintiffs disagree with this distinction. They contend that it “would be anomalous to provide 26 less redress under the Bane Act to a state employee who can plead a due process violation with subjective indifference than courts provide to convicted prisoners.” Opp. at 9. The Court does not 27 find this “anomalous.” It seems only logical to conclude that a violation of a right involves more 1 e.g., M.H. v. Cnty. of Alameda, 90 F. Supp. 3d 889, 898-99 (N.D. Cal. 2013) (coercion 2 element satisfied where plaintiffs alleged deliberate indifference to an inmate’s medical 3 needs); Atayde v. Napa State Hosp., 2016 WL 4943959, at *8 (E.D. Cal. Sept. 16, 2016) 4 (similar); Luttrell v. Hart, 2020 WL 5642613, at *5 (N.D. Cal. Sept. 22, 2020) (coercion 5 element satisfied where plaintiffs alleged deliberate indifference to an inmate’s safety); 6 McKibben v. McMahon, 2015 WL 10382396, at *4 (C.D. Cal. Apr. 17, 2015) (coercion 7 element satisfied where LGBT inmates alleged they were forced into “an untenable 8 choice” between facing harassment in the general prison population and being housed in 9 inferior conditions); cf. Hampton v. California, 2022 WL 838122, at *12 (N.D. Cal. Mar. 10 20, 2022) (permitting, without much analysis, a San Quentin inmate’s Bane Act claim 11 regarding the COVID-19 transfer). But no case has found a “coercion” simply because a 12 defendant (with deliberate indifference) failed to protect her employee. 13 Cases permitting Bane Act claims in the employment context are readily 14 distinguishable. An employee certainly pleads “threat, intimidation, or coercion” where 15 his supervisor “yelled at him in an intimidating manner [and] threatened him with physical 16 violence for not completing work assignments” on account of his race. Stamps v. Superior 17 Ct., 136 Cal. App. 4th 1441, 1444 (Ct. App. 2006). The same could be true in a hostile 18 work environment where an employer permits a co-worker to sexually harass the plaintiff 19 and “threaten[] violence that was intimidating.” Winarto v. Toshiba Am. Elecs. 20 Components, Inc., 274 F.3d 1276, 1289 (9th Cir. 2001). 21 Some language in certain district court opinions might be read to suggest that 22 specific intent or deliberate indifference always satisfies the “threat, intimidation, or 23 coercion” element. To the extent that these courts suggested this conclusion, the Court 24 disagrees. Justice Baxter of the California Supreme Court once mused that “it should not 25 prove difficult to frame many, if not most, asserted violations of any state or federal 26 statutory or constitutional right” as “delivered in the form of a threat, intimidation, or 27 coercion” in violation of the Bane Act. Venegas v. Cnty. of Los Angeles, 32 Cal. 4th 820, 1 || borne out, it is not borne out here. 2 Because it previously dismissed this claim on the same ground, the Court denies 3 || leave to amend as futile. See Leadsinger, 512 F.3d at 532. 4 || IV. CONCLUSION 5 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and 6 || denies leave to amend.” 7 IT ISSO ORDERED. 8 Dated: May 16, 2022 a □

CHARLES R. BREYER

9 United States District Judge 10 11 12 E 13

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15

16 5 17 18 19 20 21 22 23 24 25 26 27 | 2 Because the alleged conduct does not satisfy the elements of a Bane Act claim, the Court does 7g || not reach whether the Bane Act claim here would be barred by the workers compensation exclusivity rule. See Gunnell v. Metrocolor Lab’ Inc., 92 Cal. App. 4th 710, 719 (2001).