Marciano Plata; v. GAVIN NEWSOM, Governor of the State of California

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCIANO PLATA; et al.,
Plaintiffs-Appellees,
v.
GAVIN NEWSOM, Governor of the State
of California; KATHLEEN ALLISON,
Secretary of the California Department of
Corrections and Rehabilitation,
Defendants-Appellants,
______________________________
J. CLARK KELSO,
Receiver-Appellee.
No. 21-16696
D.C. No. 4:01-cv-01351-JST
MEMORANDUM*
MARCIANO PLATA; et al.,
Plaintiffs-Appellees,
v.
CALIFORNIA CORRECTIONAL
PEACE OFFICERS ASSOCIATION,
No. 21-16816
D.C. No. 4:01-cv-01351-JST
FILED
APR 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Intervenor-Appellant,
and
GAVIN NEWSOM, Governor of the State
of California; KATHLEEN ALLISON,
Secretary of the California Department of
Corrections and Rehabilitation,
Defendants,
------------------------------
J. CLARK KELSO,
Receiver-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted March 15, 2022
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,** District
Judge.
Defendants and Intervenor appeal the district court’s orders adopting, and
setting a deadline to implement, the court-appointed Receiver’s recommendation
that California prison officials enact a mandatory COVID-19 vaccination policy
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
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requiring workers who regularly access California Department of Corrections and
Rehabilitation (CDCR) facilities be vaccinated (except in cases of medical or
religious exemptions). Defendants and Intervenor argue the district court erred by
ruling that CDCR acted with deliberate indifference by failing to require all staff
members to vaccinate, and that the district court failed to narrowly tailor its remedy
pursuant to the Prison Litigation Reform Act (PLRA). We have jurisdiction
pursuant to 28 U.S.C. § 1292(a)(1), and we vacate the district court’s orders.
Because the parties are familiar with the facts, we recite only those necessary to
decide this appeal.
Defendants and Intervenor argue that CDCR did not act with deliberate
indifference by requiring only workers in healthcare settings, and not all prison
workers (subject to exemptions), to be vaccinated statewide. The parties dispute
whether we review the district court’s determination of deliberate indifference de
novo or for abuse of discretion, but we conclude Plaintiffs failed to show deliberate
indifference under either standard.
To establish an Eighth Amendment violation based on a failure to prevent
harm, the inmate must make both an objective showing that he is incarcerated
under conditions posing a substantial risk of serious harm, Lemire v. Cal. Dep’t of
Corrs. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013), and a subjective showing
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that the defendants demonstrated “‘deliberate indifference’ to inmate health or
safety,” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “Deliberate indifference is
a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
For a successful showing of deliberate indifference, the defendant must provide
medically unacceptable care in conscious disregard of an excessive risk to the
plaintiff’s health. Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019)
(quoting Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)).
Disagreements about the best medical course of action do not meet the deliberate
indifference standard, nor does negligence or malpractice. Toguchi, 391 F.3d at
1057–58, 1060; see also Hamby, 821 F.3d at 1092 (9th Cir. 2016).
We conclude that CDCR’s COVID-19 vaccination policy was not
deliberately indifferent because the agency took significant action to address the
health risks posed by COVID-19, including making vaccines and booster doses
available to prisoners and correctional staff, enacting policies to encourage and
facilitate staff and prisoner vaccination, requiring staff to wear personal protective
equipment, and ensuring unvaccinated staff members regularly test for COVID-19.
Defendants also employed other widely accepted mitigation measures to reduce the
risk of prisoners contracting COVID-19, including symptom screening for all
individuals entering the prisons; enhanced cleaning in the facilities; adopting an
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outbreak action plan; upgrading ventilation; establishing quarantine protocols for
medically vulnerable patients; and testing, masking, and physical distancing among
inmates. In light of these uncontested facts, Defendants did not ignore or fail to
respond to the risk of COVID-19 generally, nor did they disregard the importance
of vaccination as a key mitigation measure specifically.
Plaintiffs and the Receiver argue Defendants’ approach was deliberately
indifferent because: (1) CDCR disregarded the Receiver’s conclusion that, “given
the rapid and ongoing spread of the Delta variant in California, mandatory COVID-
19 vaccination for institutional staff is necessary to provide adequate health
protection for incarcerated persons”; and (2) “[o]nce COVID-19 infection has
been introduced into a prison, it is virtually impossible to contain”; and (3) staff are
the primary vector for introducing the virus to correctional facilities. Plaintiffs
further argue that a staff vaccination mandate is necessary to protect inmates from
the risks of COVID-19 because CDCR’s other mitigation measures are
insufficient—masking and physical distancing are inconsistently enforced in
prison, and testing offers only limited protection. In support of this position, the
Receiver points to a study showing that full vaccination consistently reduces
household viral spread of the alpha and delta variants of COVID-19. The Receiver
also notes that, in the absence a full staff vaccination mandate, CDCR experienced
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approximately 2.5 times the infection rate of the California general population
during the peak of the Omicron variant.
A decision to adopt an approach that is not the most medically efficacious
does not itself establish deliberate indifference, see Toguchi, 391 F.3d at 1057–58,
and the record does not include evidence demonstrating how much more effective
a vaccine mandate would be compared to Defendants’ existing measures to
mitigate the introduction and spread of COVID-19 in a custodial environment, nor
is it clear from the record that this is an unquantifiable figure. Moreover, the
Receiver’s authority extends to the prison’s health care system, not overall prison
administration. Defendants are tasked with meeting non-medical imperatives such
as maintaining sufficient staffing to operate the state’s correctional institutions
safely. Defendants and Intervenor stress that over 700 correctional officers are
currently eligible to retire, and suggest some correctional staff may do so rather
than continue to work in the face of a vaccine mandate. The district court’s orders
denying Defendants’ and Intervenor’s motions for stay deemed Defendants’
staffing concerns “speculative,” but the district court did not make specific
findings regarding the total number of correctional personnel, the impact the loss
of up to 700 correctional officers would have on CDCR’s ability to safely operate
the prisons and provide programming, the likelihood that staff eligible to retire
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might do so rather than receive vaccinations, nor CDCR’s ability to hire
replacement staff. In the absence of such findings, we must defer to the prison’s
balancing of administrative concerns. See Farmer, 511 U.S. at 845 (concluding
courts must give “due regard for prison officials’ ‘unenviable task of keeping
dangerous men in safe custody under humane conditions,’” (quoting Spain v.
Procunier, 600 F.2d 189, 193 (9th Cir. 1979)); Helling v. McKinney, 509 U.S. 25,
37 (1993). On this record, Plaintiffs did not meet their burden of establishing
Defendants’ vaccination policy was deliberately indifferent, and we vacate the
district court’s orders on appeal concluding otherwise. See Helling, 509 U.S. at
306 (holding that deliberate indifference “should be determined in light of the
prison authorities’ current attitudes and conduct”). We need not address
Defendants’ and Intervenor’s argument that the district court’s remedy was
overbroad. See 18 U.S.C. § 3626(a)(1)(A).1
VACATED.
1 The American College of Correctional Physicians’ motion for leave to
file an amicus brief (No. 21-16996, Dkt. #50) is granted. See Fed. R. App. P.
29(a).
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