providing inmates with 25 “water that is foul would be inadequate to maintain health” and 26 therefore violate the Eighth Amendment
How later courts described this case
- providing inmates with 25 “water that is foul would be inadequate to maintain health” and 26 therefore violate the Eighth Amendment
- “with allegations 17 that there was a lack of drinkable water, the complaint is 18 sufficient to state a cause of action” under the Eighth 19 Amendment
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
11
12 XAVIER LUMAR J’WEIAL, No. 2:21-cv-00712 WBS DB
13 Plaintiff,
14 v. ORDER
15 CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
16
Defendants.
17
18
----oo0oo----
19
Plaintiff, a state prisoner proceeding pro se, filed
20
this civil rights action on April 21, 2021, seeking relief under
21
42 U.S.C. § 1983. Plaintiff alleges that defendants violated his
22
rights under the Eighth Amendment based on alleged water
23
pollution at Mule Creek State Prison. The matter was referred to
24
a United States Magistrate Judge pursuant to 28 U.S.C. §
25
636(b)(1)(B) and Local Rule 302. Following the Magistrate
26
Judge’s screening order, the only defendant that remains is Joe
27
Lizzarraga, former warden at Mule Creek State Prison. (Docket
28
1 Nos. 16, 21-22, 27.) Defendant Lizzarraga moved to dismiss on
2 July 17, 2023. (Docket No. 33.)
3 The Magistrate Judge’s findings and recommendations
4 recommend dismissal of the action. (See Docket No. 38.) Neither
5 party has filed objections to the findings and recommendations.
6 The undersigned adopts the Magistrate Judge’s findings and
7 recommendations concerning the issues of exhaustion and Eleventh
8 Amendment immunity. As such, plaintiff’s claims are DISMISSED
9 insofar as they are brought against defendant in his official
10 capacity.
11 However, for the following reasons, the undersigned
12 declines to adopt the Magistrate Judge’s recommendation
13 concerning plaintiff’s Eighth Amendment claim against defendant
14 in his individual capacity.
15 As explained by the Magistrate Judge:
16 The Eighth Amendment requires prison officials to
provide humane conditions of confinement, including
17 adequate food, clothing, shelter, and medical care,
and to take reasonable measures to guarantee the
18 safety of inmates. Farmer v. Brennan, 511 U.S. 825,
832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040
19 (9th Cir. 2005). A prisoner seeking relief for an
Eighth Amendment violation must show the defendant
20 official acted with deliberate indifference to a
threat of serious harm or injury to an inmate. Gibson
21 v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir.
2002). “Liability under section 1983 arises only upon
22 a showing of personal participation by the defendant.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
23
“Deliberate indifference” has subjective and objective
24 components. A prison official must “be aware of facts
from which the inference could be drawn that a
25 substantial risk of serious harm exists and . . . must
also draw the inference.” Farmer, 511 U.S. at 837.
26 Liability may follow only if a prison official “knows
that inmates face a substantial risk of serious harm
27 and disregards that risk by failing to take reasonable
measures to abate it.” Id. at 837. Mere negligence
28
1 establish liability, but rather, the official’s
conduct must have been wanton. Farmer, 511 U.S. at
2 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
1998).
3
(Docket No. 38 at 5-6.)
4
Also as explained by the Magistrate Judge, plaintiff’s
5
allegations are as follows:
6
Plaintiff alleges he has been forced to drink and
7 bathe in contaminated water at Mule Creek State Prison
(“MCSP”). (ECF No. 13 at 10-12, 18, 26.) Plaintiff’s
8 sink produces brown water that smells like mud, dirt,
chemicals, and raw sewage, with the raw sewage smell
9 “85 to 90% stronger in the shower.” (Id. at 21.)
Drinking MCSP water gives him diarrhea, for which he
10 now takes medication, in addition to bloody stool,
vomiting, short term dizziness, fever, headaches,
11 severe cramping, muscle fatigue, joint pain, bone
pain, and stomach pain. (Id. at 21, 27.) Plaintiff
12 believes the water is the reason for his “chronic
care” placement. (Id.) Bathing in the water causes
13 severe itching and rashes. (Id.)
14 As relevant to the remaining claim against defendant
Lizarraga, plaintiff alleges that in 2017, Lizarraga,
15 as Warden at the time, authorized “unlicensed and
uncertified” inmate laborers to dig up and repair the
16 water and sewer mains in front of Building #2 on A-
Facility “without permits or an E.P.A. certified
17 inspector being present.” (Id. at 24.) Lizarraga
then authorized the use of water treatment chemicals
18 “in an attempt to stop or help prevent the
contaminated water.” (Id.) The chemicals damaged the
19 boilers, which were not replaced. (Id. at 24-25.)
The chemicals “didn’t even work,” and remained in the
20 water, but plaintiff was never supplied with clean
drinking water. (Id.)
21
(Docket No. 38 at 2.)
22
The Magistrate Judge concluded that these allegations
23
fail to state a claim under the Eighth Amendment. For the
24
reasons given below, the undersigned disagrees.
25
First, contrary to defendants’ assertions, the
26
complaint offers more than pure speculation as to the issue of
27
water contamination. Plaintiff alleges that his “sink produces
28
1 brown water that smells like mud, dirt, chemicals, and raw
2 sewage.” (First Am. Compl. (Docket No. 13) ¶ 21.) Plaintiff
3 also asserts that he suffers ill effects immediately after
4 drinking or bathing in the water. (See id. ¶¶ 21, 27.) Taken as
5 true, allegations based on plaintiff’s personal observation of
6 the water quality and experience of how the water affects his
7 body are far from speculative. While many of the allegations -–
8 including statements concerning the pollution of bodies of water
9 located outside the prison, which are not necessarily relevant to
10 the pollution of the prison’s domestic water supply -– are
11 speculative, the allegations grounded in plaintiff’s own
12 experiences and observations are not. And as the Ninth Circuit
13 has held multiple times, allegations that an inmate was deprived
14 of an adequate amount of clean drinking water are sufficient to
15 allege a violation of the Eighth Amendment. See Hearns v.
16 Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005) (“with allegations
17 that there was a lack of drinkable water, the complaint is
18 sufficient to state a cause of action” under the Eighth
19 Amendment); Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)
20 (“receiv[ing] inadequate drinking water for four days,” even
21 where there was evidence that inmates received some amount of
22 water, could violate the Eighth Amendment); Keenan v. Hall, 83
23 F.3d 1083, 1091 (9th Cir. 1996), opinion amended on denial of
24 reh’g, 135 F.3d 1318 (9th Cir. 1998) (providing inmates with
25 “water that is foul would be inadequate to maintain health” and
26 therefore violate the Eighth Amendment).
27 Second, plaintiff alleges that defendant Lizzarraga had
28 knowledge of the contamination and authorized the maintenance
1 work that both allegedly failed to remedy the known contamination
2 and further contributed to it. Plaintiff has therefore
3 sufficiently alleged that defendant had personal involvement in
4 the alleged violation, as a warden’s approval of a policy or
5 practice or other “culpable action or inaction in the training,
6 supervision, or control of subordinates” can provide a sufficient
7 causal link to hold the warden liable for deliberately
8 indifferent conduct under § 1983. See Lemire v. California Dep’t
9 of Corr. & Rehab., 726 F.3d 1062, 1079 (9th Cir. 2013). See also
10 id. at 1074 (for purposes of deliberate indifference under the
11 Eighth Amendment, “it is enough that the official acted or failed
12 to act despite his knowledge of a substantial risk of serious
13 harm”); Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011)
14 (“acquiescence or culpable indifference” may suffice to show that
15 a supervisor “personally played a role in the alleged
16 constitutional violations”).
17 Finally, plaintiff has sufficiently alleged that
18 defendant was subjectively aware of a risk of harm. The question
19 of the defendant’s subjective knowledge is “fact-intensive and
20 typically should not be resolved” prior to trial because, “as the
21 Supreme Court has explained, ‘[w]hether a prison official had the
22 requisite knowledge of a substantial risk is a question of fact
23 subject to demonstration in the usual ways, including inference
24 from circumstantial evidence, and a factfinder may conclude that
25 a prison official knew of a substantial risk from the very fact
26 that the risk was obvious.’” Lemire, 726 F.3d at 1078 (quoting
27 Farmer, 511 U.S. at 842).
28 Here, plaintiff alleges that defendant was aware of the
1 water contamination, and this allegation is factually supported
2 by defendant’s actions in authorizing the repairs by inmates and
3 the placement of chemicals in the water supply. Acting to remedy
4 water contamination requires preexisting knowledge that the water
5 contamination existed. Knowledge of contamination of the
6 inmates’ domestic water supply could present such an “obvious”
7 risk of harm to the inmates’ health that defendant must have
8 known of that risk. See Farmer, 511 U.S. at 842.
9 The court agrees with defendant that his attempt to
10 take remedial actions provides some indication that he was not
11 deliberately indifferent. However, a reasonable finder of fact
12 could conclude that the actions taken, including authorizing
13 unqualified inmate laborers to perform important repairs, were so
14 insufficient that defendant was nonetheless deliberately
15 indifferent despite the efforts made. Further, that the efforts
16 to remedy the contamination were unsuccessful and the water
17 remained polluted, yet defendant did not take additional remedial
18 measures, could be an indication of deliberate indifference. See
19 Keller v. Shirley, No. 1:22-cv-01487 BAM PC, 2023 WL 6612634, at
20 *6 (E.D. Cal. Oct. 10, 2023), report and recommendation adopted,
21 2024 WL 37052 (Jan. 3, 2024) (allegations that prison official,
22 inter alia, “failed to correct the failures of past contractors,
23 regulations, and plans to make sure the water quality is safe”
24 were sufficient to state a claim for deliberate indifference to
25 conditions of confinement).
26 The court therefore concludes that plaintiff has stated
27 a claim under the Eighth Amendment. See Augustine v. Shirley,
28 No. 1:23-cv-00520 SAB PC, 2023 WL 9111047, at *3 (E.D. Cal. July
nen nen en en OE OI ISIE OO
1 18, 2023) (“[a]t the pleading stage, Plaintiff’s allegations that
2 the drinking water at [the prison] is contaminated of which
3 [supervisory prison official] is alleged aware and is presumably
4 responsible for addressing the status of the water system .. .,
5 but failed to take action, is sufficient to give rise to a claim
6 for relief”); Johnson v. Cate, No. 1:10-cv-00803 AWI, 2013 WL
7 3968202, at *4 (B.D. Cal. July 31, 2013), report and
8 recommendation adopted, 2013 WL 5492728 (Oct. 1, 2013) (where the
9 complaint “plausibly alleges that [prison official defendant]
10 knowingly failed to cure a dangerous situation at [the prison] .
11 . . nothing more is required to survive” a motion to dismiss).
12 Accordingly, defendant’s motion to dismiss (Docket No.
13 33) is GRANTED IN PART only with respect to plaintiff’s claims as
14 | brought against defendant in his official capacity, which are
15 hereby DISMISSED. The motion is DENIED IN PART to the extent
16 that it seeks dismissal on the ground that plaintiff failed to
17 state an Eighth Amendment claim against defendant in his
18 individual capacity. This case is REMANDED to the Magistrate
19 Judge for further proceedings consistent with this order,
20 including consideration of the qualified immunity issue raised by
21 defendant’s motion if appropriate at this early stage of the
22 | proceedings.
23 IT IS SO ORDERED.
24 Dated: February 14, 2024
25 athe A, hh.
WILLIAM B. SHUBB
26 UNITED STATES DISTRICT JUDGE
27
28