(PC) Rodriguez v. Cate

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 ERICK EDDIE RODRIGUEZ, Case No.: 1:21-cv-00898-KES-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO GRANT DEFENDANTS’ MOTION

13 v. FOR SUMMARY JUDGMENT

14 M. CATE, et al., 14-DAY OBJECTION PERIOD

15 Defendants.

16

17 Plaintiff Erick Eddie Rodriguez is a state prisoner proceeding pro se in this civil rights

18 action pursuant to 42 U.S.C. § 1983.

19 I. INTRODUCTION

20 On May 17, 2024, Defendants filed a Motion for Summary Judgment. (Doc. 53.) The

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motion included a Rand1 warning to Plaintiff. (Doc. 53-1.) Plaintiff did not file an opposition to

22 Defendants’ motion and the time to do so has passed.

23 II. PLAINTIFF’S CLAIMS

24 Plaintiff contends he was exposed to hazardous toxic substances while incarcerated at

25 Kern Valley State Prison (KVSP) from 2010 to 2012 and was diagnosed with

26 “Dermatofibrosacoma Proberans (DFSP) in 2018.” He alleges DFSP is a rare form of cancer

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1 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998).

1 associated with arsenic exposure. He further contends he was “exposed to arsenic water, and

2 forced to drink” that water at KVSP. Plaintiff asserts KVSP was non-compliant with “U.S.E.P.A.

3 regulation standards” during his incarceration at KVSP. Plaintiff states: “Notification protocol

4 failed to inform of major risk factors of arsenic in lung, and skin cancer,” and that arsenic is a

5 “class 1 human carcinogen with long term effects ….” Plaintiff contends arsenic “levels remained

6 in U.S.E.P.A. regulatory violation during notification, and continued to be at maximum

7 permissible under federal standard” during his incarceration at KVSP from 2010 through 2012.

8 Plaintiff alleges Defendants were aware of the risks presented and failed to take action to alleviate

9 the risks. Plaintiff contends his injuries include skin cancer; joint, kidney and organ pain; skin

10 lesions; “abnormal” anxiety; psychological disorder; mental distress; and unnatural thoughts and

11 feelings.

12 Following screening of the complaint, the Court found Plaintiff plausibly alleged Eighth

13 Amendment conditions of confinement claims against Defendants Cate and Biter. Plaintiff

14 established the first objective prong of the deliberate indifference test by alleging the arsenic to

15 which he was exposed via the drinking water at KVSP is the cause of his DFSP, a sufficiently

16 serious deprivation. Plaintiff also established the second subjective prong of the test by plausibly

17 alleging that Defendants Cate and Biter were aware of the risk presented and disregarded the

18 excessive risk to Plaintiff’s health and safety.

19 III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

20 Defendants Cate and Biter assert they were not deliberately indifferent to the non-

21 dangerous levels of arsenic in KVSP’s water. (Doc. 53-1 at 6-7.) Specifically, Defendants

22 contend KVSP’s water did not objectively present a substantial risk of serious harm to Plaintiff

23 (id. at 7-9), and Plaintiff cannot show that Defendants were subjectively indifferent to a serious

24 risk of harm related to KVSP’s water (id. at 9-11). Defendants also contend they are entitled to

25 qualified immunity. (Id. at 11-14.)

26 //

27 //

1 IV. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS2

2 1. Plaintiff Erick Eddie Rodriguez is a former inmate in the custody of the California

3 Department of Corrections and Rehabilitation (CDCR).

4 2. Plaintiff was incarcerated at KVSP from July 8, 2010, to May 2, 2012.

5 3. Defendant Cate was employed as the Secretary of CDCR from May 16, 2008, to

6 November 2012.

7 4. Defendant Biter became KVSP’s Acting Warden in August 2019, and was named

8 Warden in February 2013. He held this position until November 2015.

9 5. In 2001, the United States Environmental Protection Agency (U.S. EPA) updated

10 its maximum contaminant level (MCL) for drinking water to 10 parts per billion (0.010 mg/L) of

11 arsenic from 50 parts per billion (0.050 mg/L). This standard did not become effective until 2006.

12 6. This was a significant reduction as it is impossible to find drinking water in the

13 environment free of arsenic.

14 7. The State of California adopted the U.S. EPA’s new arsenic MCL standard in

15 November 2008.

16 8. As of July 6, 2010, 1,375 of the 10, 425 wells sampled in California had arsenic

17 concentrations above the federal MCL. Kern County is one of the counties with the most wells

18 above the arsenic MCL.

19 9. KVSP has two wells that provide drinking water for the entire prison, which

20 provide the same water to inmates and staff.

21 10. Between July 2010 and July 2012, KVSP’s arsenic level was less than half the

22 former MCL, with quarterly averages for its two wells between approximately 0.014 mg/L and

23 0.020 mg/L.

24 11. As Acting Warden and Warden, Warden Biter posted quarterly notices reporting

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2 Because Plaintiff did not file an opposition, he neither admitted or denied the facts set forth by defendant

26 as undisputed nor filed a separate statement of disputed facts. Local Rule 260(b). A verified complaint in a

pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule,

27 where the complaint is based on an inmate's personal knowledge of admissible evidence, and not merely

on the inmate's belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v.

Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985); Fed. R. Civ. P. 56(e).

1 the levels of arsenic in KVSP’s drinking water. The notices conformed with the ones the

2 California Department of Public Health required KVSP to post.

3 12. The quarterly notices states that the arsenic levels at KVSP did not present an

4 emergency.

5 13. The quarterly notices stated that the inmates did not need to use an alternative

6 water source.

7 14. The quarterly notices did not state that KVSP’s specific arsenic concentrations

8 were high enough to cause illness.

9 15. While Warden Biter was KVSP’s Acting Warden and Warden, KVSP and Warden

10 Biter provided annual consumer confidence reports about KVSP’s water to staff and inmates.

11 16. While Warden Biter was KVSP’s Acting Warden and Warden, KVSP and Warden

12 Biter tested KVSP’s drinking water for contaminants and provided the results to the California

13 Department of Public Health.

14 17. Arsenic poisoning is generally in one of two forms: acute arsenic poisoning and

15 chronic arsenic poisoning. Generally, acute arsenic poisoning results from exposure to high

16 concentrations of arsenic over a short period of time, while chronic arsenic poisoning results from

17 exposure to low concentrations of arsenic over a long period of time.

18 18. Acute arsenic poisoning causes severe gastrointestinal illness, with nausea,

19 vomiting, abdominal pain, and diarrhea. This is followed by a variety of hematological effects

20 (blood diseases), neurological effects (peripheral neuropathy), kidney failure, and respiratory

21 failure.

22 19. Most cases of acute arsenic poisoning occur from accidental ingestion of

23 insecticides or pesticides and less commonly from attempted suicide.

24 20. No acute health effects have been documented in the scientific literature from

25 arsenic exposure at the levels reported at KVSP between July 2010 and July 2012.

26 21. Plaintiff did not ingest water at KVSP in anywhere near high enough

27 concentrations of arsenic to cause acute arsenic poisoning.

1 arsenic exposure, experts look to the dosage (concentration of arsenic consumed), duration of

2 exposure, and latency (duration of time between the first exposure and onset of the condition).

3 23. Plaintiff does not meet the dosage, duration, or latency metrics to cause chronic

4 arsenic poisoning.

5 24. There are no reports in the scientific literature of joint, kidney, or organ pain,

6 abnormal anxiety, psychological disorder, mental distress, or unnatural thoughts and feelings

7 resulting from the level of exposure and duration of exposure experienced by Plaintiff.

8 25. There are no reports in the scientific literature of dermatofibrosarcoma

9 protuberans, or other cancers, resulting from the level of exposure, duration of exposure, and

10 latency period experienced by Plaintiff.

11 26. Plaintiff did not become ill from ingesting the arsenic in KVSP’s water.

12 27. No toxicologist has informed Plaintiff the water was dangerous.

13 28. In 2008, after medical staff reported receiving injuries from inmates regarding

14 KVSP’s arsenic levels, KVSP’s Chief Medical Executive (CME) Dr. S. Lopez, D.O. contacted

15 the California Poison Control System, Fresno/Madera, to inquire as to the possible health

16 concerns raised by the levels of arsenic detected in KVSP’s water.

17 29. Dr. R. Geller, M.D., M.P.H., from California Poison Control, responded to Dr.

18 Lopez that there were zero expected health problems, acute or chronic, presented by arsenic at

19 concentrations of 22 parts per billion, such as KVSP’s water.

20 30. Dr. Geller further stated that there was no need for other public health action.

21 31. The process of installing an arsenic-removal plant at KVSP began in 2005.

22 Construction on the arsenic-removal plant at KVSP began in October 2011, and continued until

23 finished in December 2012. The project closed in January 2013.

24 32. The California Department of Public Health approved CDCR’s plan to install an

25 arsenic-removal plant.

26 33. The California Department of General Services had approval authority over the

27 arsenic-removal contracting process and the California State Legislature had funding authority.

1 already in progress to bring KVSP into regulatory compliance with the new arsenic standard.

2 Accordingly, Secretary Cate did not need to choose a different solution.

3 35. Secretary Cate delegated responsibility and authority of the bidding, planning,

4 design, and construction of the arsenic-removal plant to CDCR’s Facility Planning, Construction,

5 and Management Division.

6 36. KVSP’s plan used a coagulation/filtration process, which the EPA considers a best

7 available technology.

8 37. KVSP considered drilling new wells or installing point-of-use filters at the prison,

9 but determined those alternatives were not viable because of cost, feasibility of correcting the

10 issue, and because the water did not present a risk to inmate and staff health to necessitate them.

11 38. CDCR also considered the possibility of connecting to the City of Delano’s water

12 system, which was working to build an arsenic-removal plant. It conducted an analysis and

13 determined that a KVSP stand-alone plant was the best option.

14 39. Secretary Cate was informed that KVSP’s water did not pose a substantial risk of

15 serious harm to inmates and staff. Secretary Cate never had any information, knowledge, or

16 reason to believe that an alternative water source for all inmates and staff at KVSP was necessary

17 while the arsenic-removal plant was being designed, planned, funded, and built.

18 40. Secretary Cate was never informed that the level of arsenic in the drinking water at

19 KVSP presented a serious risk of harm to Plaintiff, or anyone else.

20 41. As the Acting Warden and Warden, Warden Biter did not have the personal

21 authority to authorize a project the size of the arsenic-removal plant.

22 42. When Warden Biter was made KVSP’s Acting Warden, he understood CDCR had

23 already determined that installing an arsenic-removal plant was the best way to bring KVSP’s

24 water into compliance with the MCL.

25 43. Warden Biter consulted with CME Dr. Lopez regarding the drinking water and

26 was informed that the levels did not present a health concern.

27 44. Warden Biter was never informed that the levels of arsenic in KVSP’s drinking

1 45. Warden Biter was never informed by a qualified health official that an alternative

2 water source was necessary while the arsenic-removal plant was being designed and built.

3 46. Warden Biter deferred to the expertise of KVSP plant operations staff on matters

4 regarding arsenic compliance. The staff working on the removal plant would report back to

5 Warden Biter regarding the progress of the planning, design, and installation of the plant.

6 47. While KVSP was out of compliance with the new MCL, the California

7 Department of Public Health never ordered KVSP to stop providing water from its wells to staff

8 and inmates, never revoked KVSP’s permit to provide water, and never ordered KVSP to provide

9 an alternative water source.

10 48. Since completion of the KVSP arsenic-removal plant, KVSP has complied with

11 the MCL.

12 (Doc. 53-3 [UDF].)

13 V. JUDICIAL NOTICE

14 Defendants request this Court take judicial notice of the CDCR Quarterly Status Report of

15 Capital Outlay Projects for the CDCR, Arsenic Removal Water Treatment System of March 31,

16 2013, and the State Water Resources Control Board, Division of Water Quality GAMA Program,

17 Groundwater Information Sheet, Arsenic of July 6, 2010. (Doc. 54.)

18 A court may take judicial notice of facts “not subject to reasonable dispute” because they

19 are either “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of

20 accurate and ready determination by resort to sources whose accuracy cannot reasonably be

21 questioned.” Fed. R. Evid. 201.

22 Here, the CDCR Quarterly Status Report and State Water Resources Control Board

23 Groundwater Information Sheet are the type of facts the Court may take judicial notice of and

24 Defendants’ request is granted. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 978 n.2 (9th Cir.

25 2007) (explaining that a court may take judicial notice of a government publication); Winnemem

26 Wintu Tribe v. U.S. Dep’t of Interior, 725 F. Supp. 2d 1119, 1131 (E.D. Cal. 2010) (a court may

27 take judicial notice of records and reports of administrative bodies); Mobil Oil Corp. v. Tennessee

1 Valley Authority reports).

2 VI. DISCUSSION

3 A. Summary Judgment Legal Standards

4 Summary judgment is appropriate when it is demonstrated that there “is no genuine

5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

6 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

7 “citing to particular parts of materials in the record, including depositions, documents,

8 electronically stored information, affidavits or declarations, stipulations (including those made for

9 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R.

10 Civ. P. 56(c)(1)(A).

11 Summary judgment should be entered, after adequate time for discovery and upon motion,

12 against a party who fails to make a showing sufficient to establish the existence of an element

13 essential to that party's case, and on which that party will bear the burden of proof at trial. See

14 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

15 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id.

16 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to

17 establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec.

18 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

19 existence of this factual dispute, the opposing party may not rely upon the allegations or denials

20 of their pleadings but is required to tender evidence of specific facts in the form of affidavits,

21 and/or admissible discovery material, in support of its contention that the dispute exists or shows

22 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.

23 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the

24 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

25 governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,

26 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The party must also

27 demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

1 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, the opposing

2 party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

3 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

4 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

5 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

6 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

7 committee's note on 1963 amendments).

8 In resolving the summary judgment motion, the evidence of the opposing party is to be

9 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

10 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

11 U.S. at 587. Inferences are not drawn out of the air and the opposing party must produce a factual

12 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.

13 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

14 demonstrate a genuine issue, the opposing party “must do more than simply show that there is

15 some metaphysical doubt as to the material facts.... Where the record taken as a whole could not

16 lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”

17 Matsushita, 475 U.S. at 587 (citation omitted).

18 B. Legal Standards Concerning Conditions of Confinement Claims

19 The Eighth Amendment protects prisoners from inhumane methods of punishment and

20 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

21 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). No matter where they are housed, prison

22 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

23 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)

24 (quotation marks & citations omitted). To establish a violation of the Eighth Amendment, the

25 prisoner must “show that the officials acted with deliberate indifference. . ..” Labatad v.

26 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of

27 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

1 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer, 511

2 U.S. at 834. Second, subjectively, the prison official must “know of and disregard an excessive

3 risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th

4 Cir. 1995).

5 Objectively, extreme deprivations are required to make out a conditions of confinement

6 claim and only those deprivations denying the minimal civilized measure of life’s necessities are

7 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503

8 U.S. 1, 9 (1992). The Constitution “‘does not mandate comfortable prisons.’” Wilson v. Seiter,

9 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). However,

10 “inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges,

11 particularly over a lengthy course of time.” Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.

12 1989).

13 Subjectively, if an objective deprivation is shown, a plaintiff must show that prison

14 officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson,

15 501 U.S. at 303; Labatad, 714 F.3d at 1160. “Deliberate indifference is a high legal standard.”

16 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this standard, the prison official

17 must not only ‘be aware of the facts from which the inference could be drawn that a substantial

18 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting

19 Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was not,

20 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.

21 (quoting Gibson, 290 F.3d at 1188)). To prove knowledge of the risk, however, the prisoner may

22 rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to

23 establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.

24 1995).

25 The exposure to toxic substances can support a claim under section 1983. See Wallis v.

26 Baldwin, 70 F.3d 1074, 1076-77 (9th Cir. 1995) (exposure to asbestos). An Eighth Amendment

27 claim alleging a failure to provide clean or safe water is a conditions of confinement claim. Reed

1 (analyzing claim that prison water had levels of arsenic higher than EPA standards under a

2 conditions of confinement standard); Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001)

3 (“Poisoning the prison water supply or deliberately inducing cancer in a prisoner would be forms

4 of cruel and unusual punishment, and might be even if the harm was probabilistic or future rather

5 than certain and immediate”); see also Helling v. McKinney, 509 U.S. 25, 35-37 (1993) (using

6 “demonstrably unsafe drinking water” as a hypothetical example of a potential conditions of

7 confinement claim).

8 C. Analysis

9 Defendants contend KVSP’s water was safe, the arsenic levels in KVSP’s water were not

10 ignored and Plaintiff suffered no harm. As a result, Defendants assert Plaintiff has failed to

11 demonstrate the required elements of his conditions of confinement claims against Defendants

12 Cate and Biter.

13 Plaintiff Fails to Prove the Objective Element of His Eighth Amendment Claim

14 Defendants have presented evidence that KVSP’s water did not present an objectively

15 serious risk of harm. In 2001, the EPA updated its maximum contamination level (MCL) to 0.010

16 milligrams per liter (mg/L) (or 10 micrograms per liter [mcg/L] or 10 parts per billion) of arsenic.

17 (UDF 5.) The State of California adopted the EPA's arsenic MCL standard in November 2008.

18 (UDF 7.) Arsenic is one of many trace elements found in abundance occurring naturally in the

19 environment. (Doc. 53-10, ¶ 14.) Between July 2010 and July 2012, KVSP’s arsenic level was

20 less than half the former MCL, with quarterly averages for its two wells between approximately

21 0.014 mg/L and 0.020 mg/L. (UDF 10.) This was substantially under the prior EPA and

22 California maximum contaminant level of 0.050 mg/L. (UDF 5, 7, 10.)

23 Notices were posted quarterly stating that the amount of arsenic in KVSP’s water did not

24 present an emergency. (UDF 11-12.) The notices also informed inmates that they did not need to

25 use an alternative water source. (UDF 13.) During the period KVSP was out of the compliance

26 with the modified MCL, the California Department of Public Health did not order KVSP to stop

27 providing water from its wells to staff and inmates, did not revoke KVSP’s permit to provide

1 completion of the arsenic-removal plant, KVSP has complied with the applicable MCL. (UDF

2 48.)

3 Plaintiff also fails to demonstrate that the risk of arsenic exposure was “so grave that it

4 violate[d] contemporary standards of decency to expose anyone unwilling to such risk.” Helling,

5 509 U.S. at 36. The risk cannot be one that “today's society chooses to tolerate.” Id. As of July 6,

6 2010, when Plaintiff was at KVSP, approximately 1,375 of 10,425 wells sampled in California

7 had MCL concentrations above the MCL. Kern County, where KVSP is located, was one of the

8 counties with the most wells out of compliance. (UDF 8.)

9 Additionally, no acute health effects have been documented in the scientific literature

10 from arsenic exposure at the levels reported at KVSP between July 2010 and July 2012. (UDF

11 20.) Plaintiff’s consumption of water at KVSP did not involve high enough concentrations of

12 arsenic to cause acute arsenic poisoning. (UDF 21.) Nor does Plaintiff meet the dosage, duration,

13 or latency metrics to cause chronic arsenic poisoning. (UDF 22-23.) There are no reports in the

14 scientific literature of joint, kidney, or organ pain, abnormal anxiety, psychological disorder,

15 mental distress, or unnatural thoughts and feeling. (UDF 24.) Nor are there any reports of

16 dermatofibrosarcoma protuberans or other cancers resulting from the level and duration of

17 Plaintiff’s exposure and the latency period he experienced. (UDF 25.) Finally, Plaintiff was never

18 informed by a toxicologist that the water he consumed was dangerous. (UDF 27.)

19 With respect to Plaintiff’s medical condition, Plaintiff admitted during his deposition that

20 no toxicologist had informed him the water at KVSP was dangerous. (UDF 27.) Moreover, Dr. T.

21 Durrani, a board certified physician in family medicine, general preventative medicine and public

22 health, occupational medicine, and medical toxicology, and Associate Chief of Clinical Services

23 in the Division of Occupational, Environmental and Climate Medicine at the University of

24 California San Francisco, Medical Director of Occupational Health Services at San Francisco

25 General Hospital, Assistant Medical Director for the California Poison Control System, San

26 Francisco Division, and Attending Physician for the Medical Toxicology Inpatient Service of San

27 Francisco General Hospital and Trauma Center, reviewed Plaintiff’s complaint, deposition

1 notices from July 2010 to July 2012. (Doc. 53-10, ¶¶ 1-2, 7.) Based upon his professional training

2 and experience, review and understanding of texts and articles in peer-reviewed medical literature

3 concerning arsenic, and his review of Plaintiff’s medical records, Dr. Durrani opined that

4 Plaintiff’s belief that he suffers or will suffer any adverse health effects from drinking water at

5 KVSP is mistaken. (Id., ¶ 31.) Dr. Durrani states there is no evidence that Plaintiff was exposed to

6 arsenic in KVSP’s drinking water in sufficient amounts over a sufficient length of time to cause

7 any harm to Plaintiff’s health. (Id.) Dr. Durrani further states there is no clinical evidence based

8 on authoritative research in the area of arsenic poisoning that consuming arsenic in the

9 concentration consumed by Plaintiff for the relevant period would result in the conditions alleged

10 by Plaintiff or in any other harm. (Id.)

11 The Court finds that Defendants have met their burden on summary judgment by

12 producing evidence that drinking water containing arsenic in concentrations of less than 0.050

13 mg/L is safe to consume, and there is no evidence to demonstrate that drinking water with an

14 arsenic concentration of 0.022 mg/L, like KVSP’s water, posed a risk to Plaintiff’s health. There

15 is also no link to any medical consequences that Plaintiff suffered as a result of the arsenic levels

16 at KVSP. Plaintiff has failed to rebut Defendants’ evidence concerning the objective element of

17 his conditions of confinement claims. Celotex, 477 U.S. at 322; Matsushita, 475 U.S. at 586,

18 n.11.

19 Plaintiff Fails to Prove the Subjective Element of His Eighth Amendment Claim

20 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. It requires a

21 “sufficiently culpable state of mind.” Hearns v. Terhune, 431 F.3d at 1040. Defendants are only

22 liable if they knew of an excessive risk of harm and disregarded the risk. Farmer, 511 U.S. at

23 838. A defendant must be “aware of facts from which the inference could be drawn that a

24 substantial risk of serious harm exists, and [the defendant] must [] draw the inference.” Id. If the

25 defendant did not know about the risk, he or she did not inflict the injury. Id.

26 It is undisputed that when he became Secretary of CDCR, Defendant Cate was made

27 aware that a solution to the arsenic levels in KVSP’s water was already in progress to ensure

1 did not choose a different solution. (UDF 34.) Cate delegated responsibility and authority for the

2 arsenic-removal plant to the Facility Planning, Construction, and Management Division, whose

3 plan was approved by the California Department of Public Health. (UDF 32, 35-38.) Cate was

4 informed that KVSP’s water did not pose a substantial risk of serious harm to inmates or staff.

5 (UDF 39-40.) Cate had no knowledge, information, or reason to believe that an alternative water

6 source for all inmates and staff at KVSP was necessary. (UDF 39.)

7 It is also undisputed that when he became Acting Warden at KVSP, Defendant Biter

8 understood CDCR had already determined that installing an arsenic-removal plant was the best

9 way to bring KVSP’s water into compliance with the MCL. (UDF 42.) Biter was informed by

10 CME Lopez that the levels of arsenic in KVSP’s drinking water did not present a health concern.

11 (UDF 43.) Biter was never informed the levels of arsenic presented a danger to Plaintiff or any

12 other person, nor was he ever informed an alternative water source was necessary. (UDF 44-45.)

13 The evidence presented demonstrates that KVSP officials did not ignore the arsenic levels

14 in the water consumed by inmates and staff at KVSP. They instead investigated and made

15 reasonable attempts to resolve the issue. Defendant Cate delegated responsibility and authority for

16 the construction of an arsenic-removal plant at KVSP. (UDF 32.) Defendant Biter and his staff

17 provided monthly water tests to the California Department of Public Health, posted quarterly

18 notices required by the California Department of Health regarding the arsenic levels, and

19 provided consumer confidence reports. (UDF 11-16.) Defendant Biter was not directly involved

20 in the construction of the arsenic removal plant, and he generally deferred to the expertise of

21 KVSP and correctional staff who would report back to him regarding the progress of the

22 planning, design, and installation of the plant. (UDF 41, 46.) During the design phase for the

23 arsenic-removal plant, the CDCR reviewed other arsenic-removal techniques to determine the

24 type of facility that would be best for KVSP, including drilling new wells or installing point-of-

25 use filters, and connecting to the City of Delano’s water system, but these alternatives were not

26 feasible given the appropriate considerations. (UDF 36-38.)

27 The evidence also supports the finding that Defendants Cate and Biter were not aware of

1 water did not pose a substantial risk of serious harm to inmates or staff, including Plaintiff, and

2 was never informed that an alternative water source was necessary. (UDF 39-40.) Defendant Biter

3 was similarly advised and consulted with KVSP’s CME, who informed Biter that the water was

4 not dangerous. (UDF 43-45.) The quarterly notices that were posted indicated the arsenic levels at

5 KVSP did not present an emergency and there was no need to use an alternative water source.

6 (UDF 12-13.) Ultimately, neither Cate nor Biter was ever informed that the water was dangerous

7 or that they should provide an alternative source of water to prevent KVSP’s inmates and staff

8 from being harmed. Therefore, based on the evidence presented, neither Defendant Cate nor

9 Defendant Biter was aware that KVSP’s water presented a risk to Plaintiff and summary

10 judgment in their favor is appropriate.3

11 VII. CONCLUSION AND RECOMMENDATION

12 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for

13 summary judgment (Doc. 53) be GRANTED.

14 These Findings and Recommendations will be submitted to the United States District

15 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

16 after being served with a copy of these Findings and Recommendations, a party may file written

17 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

18 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages

19 without leave of Court and good cause shown. The Court will not consider exhibits attached to

20 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference

21 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise

22 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation

23 may be disregarded by the District Judge when reviewing these Findings and Recommendations

24 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time

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27 3 Because the Court has found that Defendants are entitled to judgment on the merits, the Court does not

reach Defendants’ alternative argument that they are entitled to qualified immunity.

1 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839

2 (9th Cir. 2014).

3

IT IS SO ORDERED.

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5 Dated: December 2, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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