Darnell Hines v. Ashrafe Youseff

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARNELL T. HINES, No. 15-16145

Plaintiff-Appellant,

D.C. No.

v. 1:13-cv-00357-

AWI-JLT

ASHRAFE E. YOUSEFF, M.D.;

GODWIN C. UGUEZE, M.D.; JOSHUA

GARZA, RNP; M. AGUIRRE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

2 HINES V. YOUSEFF

ARTHUR DUANE JACKSON; LEONARD No. 15-17076

M. LUJAN; MARCUS JACKSON;

RODNEY TAYLOR; LACEDRIC W. D.C. No.

JOHNSON; L. T. BELTON; NORMAN 1:13-cv-01055-

JOHNSON; COREY LAMAR SMITH; LJO-SAB

FREDERICK BEAGLE; ABDULLE

ABUKAR,

Plaintiffs-Appellees,

v.

EDMUND G. BROWN, JR., Governor;

MATTHEW CATE, Secretary,

California Department of

Corrections and Rehabilitation;

JEFFREY BEARD, Secretary,

California Department of

Corrections and Rehabilitation;

PAUL D. BRAZELTON, Warden,

Pleasant Valley State Prison; JAMES

D. HARTLEY, Warden, Avenal State

Prison,

Defendants-Appellants.

HINES V. YOUSEFF 3

COREY LAMAR SMITH; DION No. 15-17155

BARNETT; CHRISTOPHER E. GARNER;

RODNEY RAY ROBERTS; JEREMY D.C. No.

ROMO; DANNY DALLAS; FREDERICK 1:14-cv-00060-

BEAGLE; DON BELARDES; FLOYD LJO-SAB

BOYD; RICHARD BURKE; JOSEPH

BUSTAMONTE; CHARLES JOSEPH

CARTER; OTHA CLARK; DONALD

DIBBLE; JEROME FELDER;

CANDELARIO GARZA; JEREMY LEE

HOLLIS; SCOTT IMUTA; GEORGE

JOHNSON; BRUCE KOKLICH; GRADY

MONTGOMERY; PETER ROMERO;

JOSH THOMAS; AARON TILLIS; RENE

VILLANUEVA; BERTRUM

WESTBROOK; WAYNE JAMES

WOODS; ABDULLE ABUKAR; RUBEN

ARECHIGA; JOHN WESLEY BESS;

MICHAEL BLUE; DAVID COX;

ORLANDO CRESWELL; DANIEL

DAYTON; PABLO DOMINGUEZ; JOSH

DRAPER; KENJI DOMINIQUE

JACKSON; ALBERT SHERROD;

ADRIAN SEPULVEDA; KIRK SMITH;

HECTOR TALAMANTES; ISMAEL

TORRES-ROBLES; KENNETH

WASHINGTON; THOMAS WILEY;

DARREN CHARLES WILLIAMS;

THEODORE WOOD; DONALD

WRIGHT; GEORGE YOUNT; GARLAND

BAKER; CHARLES MCQUARN;

RICHARD ADAMS; DAVID ATZET;

DERRICO AUBREY; DANIEL BOLAND;

4 HINES V. YOUSEFF

CHRISTOPHER BONDS; KEEVAN

BURKS; KEVIN CALL; JOSEPH

DEJESUS; GERALD W. DICKSON;

ERIC DONALDSON; ROY LEE DOSS;

JOSEPH ALFONSO DURAN; JAMES

FARR; JOSEPH FERRIS; ALVIN

FLOWERS; STEPHEN FRANKLIN;

AUBREY GALLOWAY; JOHN RAY

GHOLAR; ROBERT GONZALEZ;

VERNON GRANT; WALTER GREEN;

ROBERT HARRIS; SINOA HERCULES;

BRET HILL; ADRIAN JOHNSON; ELLIS

CLAY HOLLIS; EDWARD JONES;

ANTHONY R. JONES; LAWRENCE

KERNER; TITI LAVEA; CLEOFAS

LEWIS; MICHAEL MANNING; ROBERT

MAESCHEK; DANIEL MASUSHIGE;

ELLIS MCCLOUD; BRANDON

MCDONALD; JEFFREY MCDONALD;

JUAN MEZA; HERSCHEL MITCHELL;

NOEL MORALES; RAYMOND

NEWSOM; JESUS ANTONIO PEREZ;

HARVEY RAYBURN; JORGE AUGUSTO

REYES; JAY ROACH; PAUL

RICHARDSON; TYRONE SANDERS;

JOHNNY O. SANCHEZ; EDWARD

SPENCE; TRACY L. STEWART; LOUIS

THOMAS; ELONZA JESSE TYLER;

VANCE UTLEY; BYRON WEST;

WILLIAM WILEY; RODNEY

WILLIAMS; ROBERT WOLTERS;

MICHAEL MORROW; DAMOR HILL;

COREY CAMPBELL; ROBERT

HINES V. YOUSEFF 5

CONLEY; SINOHE HERCULES; JUAN

CARLOS MARTINEZ; JUAN PENALVA;

ROBERT PRESTON, JR.; JOHN

ARTHUR RUGGLES; WILLIE STEELS;

SOLOMON VASQUEZ; GEORGE

LEWIS; RICHARD ARTEAGA; PABLO

CASTANEDA; CHANEY CLIFFORD;

CAMPBELL COREY; ROBERT

CONLEY; ALVIN COOPER; KENNETH

GLEN CORLEY; WALTER

CORNETHAN; ROY CORNING; DENNIS

DUREE; SINOHE HERCULES; CARLOS

HERNANDEZ; DAMOR HILL; DANILO

JALOTLOT; ASAD LEWIS; GEORGE

LEWIS; JOE M. LEWIS; JUAN

MARTINEZ; THOMAS MILFORD;

DALE MILLER; DANIEL MOLEN;

ANDRE MOODY; MICHAEL

MORROW; FREDDY NEAL; CHEK

NGOUN; SIM PEAV; JUAN PENALVA;

MARVIN PIERCE; ROBERT PRESTON,

JR.; DAVID ROBINSON; RONALD

RODRIGUEZ; JOHN ARTHUR

RUGGLES; LORENZO SAMS; LEROY

SMITH; WILLIE STEELS; MAURICE

THOMAS; TYRONE THOMPSON;

ROBERTO VASQUEZ; SOLOMON

VASQUEZ; PATRICK WALLACE;

XAVIER S. WILLIAMS; KENNETH

YANCEY,

Plaintiffs-Appellants,

v.

6 HINES V. YOUSEFF

ARNOLD SCHWARZENEGGER,

Governor; MATTHEW CATE; JAMES

D. HARTLEY, Warden; JEFFREY A.

BEARD; PAUL D. BRAZELTON,

Warden; SUSAN L. HUBBARD;

DEBORAH HYSEN; SCOTT KERNAN;

CHRIS MEYER; TONYA R.

ROTHCHILD; TERESA SCHWARTZ;

JAMES A. YATES, Warden; DWIGHT

WINSLOW, M.D.; FELIX IGBINOSA,

M.D.; EDMUND G. BROWN, JR.,

Governor,

Defendants-Appellees.

HINES V. YOUSEFF 7

LORENZO GREGGE, JR., No. 15-17201

Plaintiff-Appellant,

D.C. No.

v. 1:15-cv-00176-

LJO-SAB

MATTHEW CATE; RALPH DIAZ,

Secretary, California Department of

Corrections and Rehabilitation;* OPINION

JAMES A. YATES, Warden,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Chief Judge, Presiding

Argued and Submitted May 17, 2017

San Francisco, California

Filed February 1, 2019

*

With respect to all official capacity claims, Ralph Diaz is

substituted for his predecessor, Matthew Cate, as Acting Secretary for the

California Department of Corrections and Rehabilitation. Fed. R. App. P.

43(c)(2). The other defendants who held public office when the

complaints were filed were sued in their individual capacities.

8 HINES V. YOUSEFF

Before: Andrew J. Kleinfeld and Sandra S. Ikuta,** Circuit

Judges, and Rosanna Malouf Peterson,*** District Judge.

Opinion by Judge Kleinfeld

SUMMARY****

Prisoner Civil Rights

In four consolidated appeals, the panel affirmed in part

and reversed in part the district court’s decisions pertaining

to qualified immunity for prison officials in actions alleging

that inmates at several California state prisons were exposed

to a heightened risk of getting Valley Fever.

Plaintiffs alleged that exposing them to a heightened risk

of getting Valley Fever was cruel and unusual punishment in

violation of the Eighth Amendment. African-American

inmates also added a challenge under the Equal Protection

Clause of the Fourteenth Amendment. They alleged that

because African-American inmates were particularly likely to

**

The original panel, consisting of Judge Kleinfeld, Judge Wardlaw,

and Judge Peterson, heard oral argument May 17, 2017. Judge Wardlaw

recused herself while the case was under submission, and Judge Ikuta was

drawn to replace Judge Wardlaw. Judge Ikuta has read the briefs,

reviewed the record, and listened to the tape of oral argument.

***

The Honorable Rosanna Malouf Peterson, United States District

Judge for the Eastern District of Washington, sitting by designation.

****

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HINES V. YOUSEFF 9

get Valley Fever and suffer serious consequences, they

should have been segregated from the prisons with the

highest infection rates.

The panel first held that several of the defendants could

not be sued at all because they were not personally involved

in any alleged violations. The panel then held that in each of

the four cases on appeal, state officials were entitled to

qualified immunity against claims that they were deliberately

indifferent to a substantial risk of serious harm in violation of

the Eighth Amendment. The panel held that the specific right

that the inmates claimed in these cases—the right to be free

from heightened exposure to Valley Fever spores—was not

clearly established at the time the officials acted. The panel

further held that the cases did not involve “clear” or

“obvious” violations given that a federal Receiver supervised

the officials’ actions, and there was no evidence that society’s

attitude had evolved to the point that involuntary exposure to

such a risk violated current standards of decency.

The panel held that officials were also entitled to qualified

immunity against claims that they racially discriminated

against African-American inmates. The panel held that even

if state officials should have been more aggressive in

excluding inmates whose higher risk appeared to be on

account of (or at least connected to) their race, that did not

mean their conduct violated clearly established law. The

panel concluded that inmates did not have a clearly

established right to be segregated from certain Central Valley

prisons based on their race.

10 HINES V. YOUSEFF

COUNSEL

Gregg Zucker (argued) and Victoria Niewrzol, Affeld

Grivakes Zucker LLP, Los Angeles, California; Tara Burd

and Benjamin Pavone, Pavone & Fonner, San Diego,

California; Matthew B. Pavone, Law Offices of Matthew B.

Pavone, Novato, California; Frederik Spiess and Edward

Burns, Burns & Schaldenbrand, Oceanside, California; David

Elliot, Law Offices of David Elliot, San Diego, California; for

Plaintiffs-Appellants Smith and Gregge, et al.

Greg W. Garrotto (argued), Law Offices of Garrotto &

Garrotto, Los Angeles, California, for Plaintiff-Appellant

Hines.

Milin Chun (argued), Brian M. Bush, and Raymond P.

Boucher, Boucher LLP, Woodland Hills, California; Ian

Wallach and Jason Feldman, Feldman & Wallach, Santa

Monica, California; Mark Ozzello, Arias Ozzello & Gignac,

Los Angeles, California; for Plaintiffs-Appellants/Cross-

Appellees Jackson, et al.

Jay Russell (argued), Supervising Deputy Attorney General;

Kevin A. Voth, Martine D. Agostino, and Maureen

Onyeagbako, Deputy Attorneys General; Jon S. Allin and

Thomas S. Patterson, Supervising Attorneys General;

Jonathan L. Wolff, Senior Assistant Attorney General; Office

of the Attorney General, San Francisco, California; for

Defendants-Appellees/Cross-Appellants.

Kristina Doan Gruenberg and Susan E. Coleman, Burke

Williams & Sorensen LLP, Los Angeles, California, for

Defendants-Appellees Igbinosa and Winslow.

HINES V. YOUSEFF 11

OPINION

KLEINFELD, Senior Circuit Judge

Inmates in several California state prisons were exposed

to a heightened risk of getting Valley Fever, so they sued

state officials for money damages under 42 U.S.C. § 1983.

The inmates claim that exposing them to a heightened risk of

getting Valley Fever was cruel and unusual punishment in

violation of the Eighth Amendment. African-American

inmates add a challenge under the Equal Protection Clause of

the Fourteenth Amendment. They claim that because

African-American inmates were particularly likely to get

Valley Fever and suffer serious consequences, they should

have been segregated from the prisons with the highest

infection rates. In each of the four cases on appeal, we hold

that the state officials are entitled to qualified immunity.

FACTS

A. The Federal Receiver

For years, inmates in California state prisons have

claimed that the state violates the Eighth Amendment by

failing to provide sufficient medical care. Many inmates

have sued. In 2002, California signed a consent decree in one

such case, Plata v. Davis. As part of that decree, California

promised to implement specific procedures to ensure that

inmates statewide received constitutionally adequate medical

care.1 But the state did not satisfy the terms of the decree, so

1

Plata v. Davis, No. 01-cv-01351 (N.D. Cal. June 13, 2002), ECF

No. 68.

12 HINES V. YOUSEFF

in 2006 the Plata district court appointed a federal Receiver.2

The court conferred on the Receiver “all powers vested by

law in the Secretary of the [California Department of

Corrections and Rehabilitation] as they relate to the

administration, control, management, operation, and

financing of the California prison medical health care

system.”3 The court concurrently “suspended” the

Department of Corrections and Rehabilitation’s exercise of

those powers “for the duration of the Receivership.”4 The

Receiver has filed papers with the Plata district court, and the

district court has entered orders to improve medical care.5

Therefore, since 2006, state officials have made decisions

about prison medical care while under the control of a federal

Receiver, appointed by a federal district court to ensure

compliance with the Eighth Amendment. This case

challenges how those state officials responded to Valley

Fever outbreaks in several prisons in the Central Valley of

California, despite the Receiver’s control.

2

Plata v. Schwarzenegger, No. 01-01351, 2005 WL 2932253 (N.D.

Cal. Oct. 3, 2005), ECF No. 371.

3

Plata v. Schwarzenegger, No. 01-01351 (N.D. Cal. Feb. 14, 2006),

ECF No. 473.

4

Id.

5

See Plata v. Schwarzenegger, 603 F.3d 1088, 1091–92 (9th Cir.

2010) (recounting the history of the receivership); Plata v. Brown,

754 F.3d 1070, 1079–80 (9th Cir. 2014) (providing a timeline of the

receivership).

HINES V. YOUSEFF 13

B. Valley Fever

Valley Fever is a disease caused by inhaling certain

fungal spores. The spores, which live in dry soil, are

common in much of the southwestern United States. Millions

of people live where the spores are common, and tens of

thousands of people are infected each year. Two-thirds of

infections are reported in Arizona. One-fourth are reported

in California. The rest are typically reported in Nevada,

Utah, New Mexico, and Texas.6

Once someone has been infected with the fungal spores,

they are immune from future infections. But infections affect

different people in different ways. About 60% of infected

people do not develop any symptoms. Another 30% develop

only mild flu-like symptoms (such as fever, cough, rash,

headaches, and muscle aches) that usually go away after a

few weeks. But around 10% of people develop a severe case

of Valley Fever. About 8% of infections lead to a severe

respiratory disease. And 1–5% of infections spread from the

lungs to other parts of the body, a serious condition known as

“disseminated cocci.” Patients with disseminated cocci can

be effectively treated, but they cannot be cured. Many

disseminated cocci patients need expensive treatment for the

rest of their lives to prevent their symptoms from recurring.

In rare cases, such as when disseminated cocci spread to the

brain and are not effectively treated, Valley Fever is fatal.

6

See Centers for Disease Control & Prevention, Summary of

Notifiable Infections Diseases and Conditions, 2015, 64 MORBIDITY &

MORTALITY WKLY. REP. 1, 13 (Aug. 11, 2017); Centers for Disease

Control & Prevention, Increase in Reported Coccidioidomycosis—United

States, 1998–2011, 62 MORBIDITY & MORTALITY WKLY. REP. 217, 217

(Mar. 29, 2013).

14 HINES V. YOUSEFF

Some groups of people have an above-average risk of

experiencing severe symptoms or developing disseminated

cocci. One risk factor is having an underlying medical

condition, such as HIV, diabetes, or heart disease. Another

risk factor is being on a medication that suppresses the

immune system, such as chemotherapy. Adults over 55 and

pregnant women are at a greater risk. Men are more likely

than women to develop disseminated cocci. And for

unknown reasons, people of African and Filipino descent are

several times more likely to develop disseminated cocci than

are people of other racial or ethnic backgrounds.

C. Valley Fever in California Prisons

In 2005, California prison officials noticed a “significant

increase” in the number of Valley Fever cases among

prisoners. The federal Receiver asked the California

Department of Health Services to investigate the outbreak at

Pleasant Valley State Prison, the prison with the highest

infection rate. After its investigation, the Department of

Health Services issued a report in January 2007. It stated that

Pleasant Valley State Prison had 166 Valley Fever infections

in 2005, including 29 hospitalizations and four deaths. The

infection rate inside the prison was 38 times higher than in

the nearby town and 600 times higher than in the surrounding

county. According to the report, “the risk for extrapulmonary

complications [was] increased for persons of African or

Filipino descent, but the risk [was] even higher for heavily

immunosuppressed patients.” The report then explained that

physically removing heavily immunosuppressed patients

from the affected area “would be the most effective method

to decrease risk.” The report also recommended ways to

reduce the amount of dust at the prisons. After receiving the

health department’s recommendations, the Receiver convened

HINES V. YOUSEFF 15

its own committee. In June 2007, the Receiver’s committee

made recommendations that were similar to those from the

health department.

In response, a statewide exclusion policy went into effect

in November 2007. The inmates who were “most susceptible

to developing severe or disseminated cocci” would be moved

from prisons in the Central Valley or not housed there in the

first place. The prisons used six clinical criteria to identify

which inmates were most likely to die from Valley Fever:

“(a) All identified HIV infected inmate patients; (b) History

of lymphoma; (c) Status post solid organ transplant;

(d) Chronic inmmunosuppressive therapy (e.g. severe

rheumatoid arthritis); (e) Moderate to severe Chronic

Obstructive Pulmonary Disease (COPD) requiring ongoing

intermittent or continuous oxygen therapy; [and] (f) Inmate-

patients with cancer on chemotherapy.” Inmates were not

excluded from the Central Valley prisons based on race. The

Receiver refined the exclusion policy in 2010 and created a

list of “inmates who [were] at institutions within the Valley

Fever hyperendemic area that [needed] to be transferred out.”

The record does not indicate that the 2010 policy excluded

inmates from the outbreak prisons based on race.

In April 2012, the prison system’s own healthcare

services released a report examining Valley Fever in prisons.

The report concluded that despite the “education of staff and

inmates” and the “exclusion of immunocompromised

inmates,” there had been “no decrease in cocci rates.” The

authors found that Pleasant Valley State Prison inmates were

still much more likely to contract Valley Fever than citizens

of the surrounding county. From 2006 to 2010, 7.01% of

inmates at Pleasant Valley State Prison and 1.33% of inmates

at Avenal State Prison were infected. By comparison, the

16 HINES V. YOUSEFF

highest countywide infection rate was 0.135%, and the

statewide rate was just 0.007%. From 2006 to 2011,

36 inmates in the Central Valley prisons died from Valley

Fever. Prison healthcare services also found that male

African-American inmates were twice as likely to die as other

inmates. Each year, about 29% of the male inmates in

California are African-American, but 50% of the inmates who

developed disseminated cocci between 2010 and 2012 were

African-American, and 71% of the inmates who died from

Valley Fever between 2006 and 2011 were African-

American.

Following this report, the Receiver issued another

exclusion policy—one that would effectively suspend the

transfer of African-American and diabetic inmates to the

Central Valley prisons.7 The state objected,8 but the district

court ordered the prisons to comply with the new exclusion

policy.9

There are several theories for why Valley Fever was more

common inside the Central Valley prisons than in the

surrounding areas. One theory is that new construction and

excavation stirred up the soil, allowing the breeze to circulate

the fungal spores. Many of the prisons were newly

constructed or were being expanded during the outbreaks.

Pleasant Valley State Prison, which had the highest rate of

Valley Fever, was next door to a large construction project.

7

Plata v. Brown, ECF No. 2580.

8

Plata v. Brown, ECF No. 2618.

9

Plata v. Brown, No. 01-01351, 2013 WL 3200587 (N.D. Cal. June

24, 2013), ECF No. 2661.

HINES V. YOUSEFF 17

Some prisons did not stop the airflow into their buildings on

windy days. The prisons also might be built where there are

more fungal spores or where the spores are more virulent.

Prison demographics were certainly relevant, as inmates

were more likely to have certain risk factors. For example,

adult males are at greater risk than women and children, and

the prisons at issue in this case housed only adult males.

African-Americans were also over-represented in the prison

population, and they are more likely to develop disseminated

cocci.10 Also, it could be that many prisoners were brought

into the Central Valley from places that did not have the

fungal spores, meaning that the inmates were not immune to

the disease when they arrived at the prisons. By contrast,

many civilians in the Central Valley could have been infected

when they were young and healthy, and as a result, many

civilians might have developed immunity without

experiencing severe symptoms.

Finally, there may be differences in identifying people

with Valley Fever. Inmates may be more likely than civilians

to seek and obtain medical attention when they are sick.

They may know about Valley Fever and request medical

attention, while civilians with flu-like symptoms that go away

in a few weeks may not. Prison doctors may be more aware

of the Valley Fever problem than many doctors or other

medical care providers outside the prisons. And it may be

10

From 2000 to 2010, about 29% of California’s male inmates were

African-American. Just 7% of Californians were African-American. CAL.

DEP’T OF CORR. & REHAB., CALIFORNIA PRISONERS & PAROLEES 2010, at

20 (2011); 2010 Census Briefs, U.S. CENSUS BUREAU, at 8 (last visited

January 31, 2019), https://www.census.gov/prod/cen2010/briefs/c2010b

r-06.pdf.

18 HINES V. YOUSEFF

that Valley Fever is more widespread among the civilian

population than the statistics indicate, because of lower

diagnosis rates rather than lower incidence rates among

civilians.

Even though Valley Fever is more common in prisons, it

is important to remember that it is not unique to prisons.

More than a million people freely live in the Central Valley,

and many of them contract Valley Fever each year. Nor is

the disease confined to the Central Valley. It occurs

throughout the southwestern United States and is especially

common in Arizona. Since the prisoners are confined

together, it is especially important that Valley Fever is not

contagious.

D. The Cases on Appeal

There are four cases consolidated on appeal. Each is a

suit for money damages brought under 42 U.S.C. § 1983.

In Smith v. Schwarzenegger, current and former inmates

of prisons in the Central Valley who were diagnosed with

Valley Fever sued various state officials for Eighth

Amendment violations. They alleged that the officials were

deliberately indifferent to the inmates’ exposure to an

unreasonable risk of getting Valley Fever and developing

disseminated cocci. The defendants moved to dismiss the

complaint under Rule 12(b)(6), claiming that they were

entitled to qualified immunity. The district court granted the

motion to dismiss. It did not grant leave to amend the

complaint. The inmates appeal.

In Gregge v. Cate, prison doctors diagnosed Gregge with

cocci-meningitis while he was incarcerated at Pleasant Valley

HINES V. YOUSEFF 19

State Prison. He sued the prison warden and others for

violating the Eighth Amendment. As in Smith, the district

court dismissed the complaint under Rule 12(b)(6) based on

qualified immunity. It did not grant leave to amend. Gregge

appeals.

In Hines v. Youseff, Hines was incarcerated at Corcoran

State Prison when he contracted Valley Fever. He brought an

Eighth Amendment claim. The officials moved for summary

judgment based on qualified immunity. The district court

granted that motion and denied leave to amend. Hines

appeals.

And in Jackson v. Brown, inmates at Pleasant Valley

State Prison and Avenal State Prison who got Valley Fever

sued various officials. The defendants moved for judgment

on the pleadings under Rule 12(c). The district court held

that the officials were entitled to qualified immunity against

the inmates’ Eighth Amendment claim. But a subgroup of

African-American inmates in Jackson had also alleged that

the officials violated the Equal Protection Clause of the

Fourteenth Amendment by intentionally failing to protect

African-American inmates, whom the officials knew had a

heightened risk of developing disseminated cocci. The court

held that the officials were not entitled to qualified immunity

against the Fourteenth Amendment claim. The officials

appeal that decision. The inmates do not appeal the ruling on

their Eighth Amendment claim.

20 HINES V. YOUSEFF

STANDARDS OF REVIEW

We have jurisdiction over all four appeals.11 We do not

have jurisdiction over the Plata decree, and it is not on

appeal. We review whether the officials are entitled to

qualified immunity de novo12 and the denial of leave to

amend for abuse of discretion.13

In Smith and Gregge, the district court granted the

officials’ Rule 12(b)(6) motions to dismiss the complaint.

And in Jackson, the district court denied the officials’ Rule

12(c) motion for judgment on the pleadings. So for those

three appeals, we must accept as true all of the inmates’

factual allegations, and we must draw all reasonable

inferences in their favor.14 We must affirm the dismissal of

the Smith and Gregge complaints if those complaints do not

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.”15 We must

reverse the denial of judgment on the pleadings in Jackson if

“there is no issue of material fact in dispute” and the officials

are “entitled to judgment as a matter of law.”16

11

28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

12

Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007).

13

Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017).

14

Gregg v. Hawaii Dep’t of Pub. Safety, 870 F.3d 883, 886–87 (9th

Cir. 2017); Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).

15

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

quotation marks omitted).

16

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

HINES V. YOUSEFF 21

Hines was decided at the summary judgment stage, not at

the pleading stage. We therefore evaluate the grant of

summary judgment based on the cognizable evidence. We

must affirm the grant of summary judgment if there are no

genuine issues of material fact and if, as the district court

concluded, the officials are entitled to judgment as a matter

of law.17

Despite these different procedural stages and legal tests,

the facts alleged in the Smith, Gregge, and Jackson

complaints are largely identical to the evidence produced in

Hines. Each of the appeals also presents the same basic

question: whether the constitutional rights that the officials

allegedly violated were “clearly established” when the

officials acted. We therefore consider all four appeals

together.

ANALYSIS

The officials in these cases are entitled to qualified

immunity against claims that they were deliberately

indifferent to a substantial risk of serious harm in violation of

the Eighth Amendment. They are also entitled to qualified

immunity against claims that they racially discriminated

against African-American inmates. But first, we hold that

several of the defendants cannot be sued at all because they

were not personally involved in any alleged violations.

I. PERSONAL INVOLVEMENT

The inmates sued the officials under 42 U.S.C. § 1983.

That means the inmates must show that each defendant

17

FED. R. CIV. P. 56(a), (c).

22 HINES V. YOUSEFF

personally played a role in violating the Constitution.18 An

official is liable under § 1983 only if “culpable action, or

inaction, is directly attributed to them.”19

The plaintiff in Hines argues that prison officials were

deliberately indifferent to a substantial risk of serious harm

when they housed him in the Central Valley. But the plaintiff

has failed to demonstrate that defendants Joshua Garza, Dr.

Godwin Ugeze, and Dr. Ashrafe Youseff were personally

involved in any Eighth Amendment violations. Garza, a

nurse practitioner, did not have any discretion to determine

whether Hines should have been excluded from prisons in the

Central Valley. There is also no evidence that Garza actually

determined whether Hines should have been excluded from

the Central Valley. There is no evidence that Dr. Ugeze was

personally involved in determining what categories of

inmates to exclude from the Central Valley. Instead, he was

instructed to simply follow the exclusion criteria developed

by others. And there is no evidence that Dr. Youseff had any

contact with Hines. So the district court was right to dismiss

those defendants from the case.20

II. CRUEL AND UNUSUAL PUNISHMENT

The inmates allege that the defendant state officials

violated the Eighth Amendment’s prohibition on “cruel and

18

Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005);

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

19

Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011).

20

See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)

(permitting us to affirm on any ground supported by the record).

HINES V. YOUSEFF 23

unusual punishments” by being deliberately indifferent to the

inmates’ heightened risk of getting Valley Fever.21 The

district courts in Smith, Gregge, and Hines held that the

officials are entitled qualified immunity against those claims.

Reviewing de novo, we affirm. Any Eighth Amendment

right to be free from heightened risk of Valley Fever was not

clearly established when the officials acted.

None of the cases before us seek an injunction that would

regulate how the state assigns inmates to the Central Valley

or how it addresses the risk of Valley Fever. That is the

subject of the Plata case, which is not before us. The cases

before us are only about whether individual defendants can be

held liable for money damages because of allegedly

unconstitutional acts and omissions.

To determine whether an official is entitled to qualified

immunity, we ask two questions: (1) whether the official’s

conduct violated a constitutional right; and (2) whether that

right was “clearly established” at the time of the violation.22

Helling v. McKinney sets out the constitutional framework for

Eighth Amendment claims about involuntary exposure to

environmental hazards.23 It held that an Eighth Amendment

claim against an official for unconstitutional prison

conditions requires an inmate to prove both an objective and

a subjective factor.

21

See U.S. CONST. amend. VIII (“Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments

inflicted.”).

22

Castro v. Cty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en

banc).

23

509 U.S. 25 (1993).

24 HINES V. YOUSEFF

For the objective factor, inmates must establish “that it is

contrary to current standards of decency for anyone to be . . .

exposed against his will” to the hazard.24 This “requires more

than a scientific and statistical inquiry into the seriousness of

the potential harm and the likelihood that such injury to

health will actually be caused.”25 Instead, courts must “assess

whether society considers the risk that the prisoner complains

of to be so grave that it violates contemporary standards of

decency to expose anyone unwillingly to such a risk,”

meaning that the risk “is not one that today’s society chooses

to tolerate.”26

For the subjective factor, inmates must show that the

official is “deliberately indifferent” to the inmate’s

suffering.27 In Farmer v. Brennan, the Supreme Court

explained that this standard means that an official is liable

“only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take

reasonable measures to abate it.”28

The courts below did not decide whether exposing

inmates to a heightened risk of Valley Fever violates the

Eighth Amendment. Neither do we. Instead, we go straight

to the second prong of the qualified immunity analysis:

24

Id. at 35.

25

Id. at 36.

26

Id.

27

Id. at 35.

28

511 U.S. 825, 847 (1994); see also Mendiola-Martinez v. Arpaio,

836 F.3d 1239, 1248–49 (9th Cir. 2016).

HINES V. YOUSEFF 25

whether a right to not face a heightened risk was “clearly

established” at the time. A right is clearly established if it

was “sufficiently clear that every reasonable official would

[have understood] that what he is doing violates that right.”29

That is, the issue must have been “beyond debate.”30 In

determining what is clearly established, we must look at the

law “in light of the specific context of the case, not as a broad

general proposition.”31

Applying those principles to the cases at hand, we

conclude that the specific right that the inmates claim in these

cases—the right to be free from heightened exposure to

Valley Fever spores—was not clearly established at the time.

A reasonable official could have concluded that the risk was

not so grave that it violates contemporary standards of

decency to expose anyone unwillingly to such risk, or that

exposure to the risk was lawful.

A. Other Valley Fever Cases

The inmates’ alleged constitutional right would be

“clearly established” if “controlling authority or a robust

consensus of cases of persuasive authority” had previously

held that it is cruel and unusual punishment to expose

29

Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation

marks omitted).

30

Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (internal

quotation marks omitted).

31

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal

quotation marks omitted).

26 HINES V. YOUSEFF

prisoners to a heightened risk of Valley Fever.32 But no such

precedent exists. The inmates argue that several of our

memorandum dispositions clearly establish their right to not

face an unreasonable risk of Valley Fever. But memorandum

dispositions do not establish law.33 They are, at best,

persuasive authority. And more importantly, none of the

cited memorandum dispositions held that inmates have an

Eighth Amendment right to not be exposed to a heightened

risk of Valley Fever.34 The inmates also point us to

unpublished district court decisions about Valley Fever

exposure. We have previously said that unpublished district

court decisions “may inform our qualified immunity

analysis.”35 But we have also noted that “it will be a rare

instance in which, absent any published opinions on point or

overwhelming obviousness of illegality, we can conclude that

the law was clearly established on the basis of unpublished

decisions only.”36 And at most, the cited district court

opinions show that the law was developing—not that it was

already clearly established.37

32

Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018).

33

See Ninth Circuit Rule 36-3(a).

34

See Holley v. Scott, 576 F. App’x 670, 670 (9th Cir. 2014); Johnson

v. Pleasant Valley State Prison, 505 F. App’x 631, 632 (9th Cir. 2013);

Jones v. Igbinosa, 467 F. App’x 604, 605 (9th Cir. 2012); Smith v.

Schwarzenegger, 393 F. App’x 518, 519 (9th Cir. 2010).

35

Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).

36

Id.

37

See Clark v. Igbinosa, No. 1:10-cv-01336, 2011 WL 1043868, at

*2 (E.D. Cal. Mar. 21, 2011); James v. Yates, No. 1:08-cv-01706, 2010

WL 2465407, at *4 (E.D. Cal. June 15, 2010).

HINES V. YOUSEFF 27

We therefore conclude that when the officials acted,

existing Valley Fever cases did not clearly establish that they

were violating the Eighth Amendment.

B. Eighth Amendment Principles

Of course, we do not require that heightened exposure to

Valley Fever must have been previously held unlawful.38 The

qualified immunity analysis does not require a case on all

fours. What matters is whether “existing precedent . . .

placed the statutory or constitutional question beyond

debate,” not whether the debate has already taken place.39 An

officer loses qualified immunity, even in novel factual

circumstances, if he or she commits a “clear” constitutional

violation.40 This rule prevents absurd results. As then-Judge

Gorsuch once explained, “some things are so obviously

unlawful that they don’t require detailed explanation and

sometimes the most obviously unlawful things happen so

rarely that a case on point is itself an unusual thing. Indeed,

it would be remarkable if the most obviously unconstitutional

conduct should be the most immune from liability only

because it is so flagrantly unlawful that few dare its

attempt.”41

But this case does not involve a “clear” or “obvious”

violation. The inmates must show that “every reasonable

38

See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

39

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

40

Farmer, 511 U.S. at 847.

41

Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir.

2015).

28 HINES V. YOUSEFF

official would [have understood]” that exposing them to a

heightened risk of Valley Fever violated the Eighth

Amendment.42 More specifically, they must show that no

reasonable officer could have thought that free society

tolerated that risk.43 They have not met that burden for two

reasons: a federal court supervised the officials’ actions, and

there is no evidence that “society’s attitude had evolved to the

point that involuntary exposure” to such a risk “violated

current standards of decency,”44 especially given that millions

of free individuals tolerate a heightened risk of Valley Fever

by voluntarily living in California’s Central Valley and

elsewhere. Those two facts mean that a reasonable official

could have thought that he or she was complying with the

Constitution.

It is especially significant that state officials could have

reasonably believed that they were not violating the inmates’

Eighth Amendment rights because the officials reported to the

federal Receiver. The Plata district court appointed a federal

Receiver in 2006—just a year after the Valley Fever outbreak

began. The receiver entered orders about Valley Fever.

Studies were conducted, and in 2010, the Receiver amended

the policy excluding certain inmates from the Central Valley.

Thus the federal Receiver appointed by the federal court to

assure Eighth Amendment compliance actively managed the

state prison system’s response to Valley Fever.

42

Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation

marks omitted).

43

See Helling v. McKinney, 509 U.S. 25, 36 (1993).

44

Id. at 29.

HINES V. YOUSEFF 29

Because the Receiver oversaw prison medical care and

protective measures regarding Valley Fever, state officials

could have reasonably believed that their actions were

constitutional so long as they complied with the orders from

the Receiver and the Plata court. The inmates do not claim

that state officials defied the Plata Receiver. The Receiver

promulgated orders directed specifically to the Valley Fever

problem, and the inmates do not claim that the defendants

defied those orders and that the defiance harmed them. The

inmates fault the officials for not following various

recommendations made before 2013. For example, in 2007

the California Department of Health Services recommended

covering the prison grounds, but the soil was not stabilized

until 2011 after the prisons got funding from the Receiver.

Other recommendations were never adopted. But the inmates

do not argue that the officials disobeyed the Receiver’s

binding orders, only that the officials did not promptly follow

recommendations that were not orders. In determining what

constituted the constitutionally sufficient level of protection,

an official could reasonably have thought that it sufficed to

comply with the Receiver’s orders.45 As we once stated in a

different context, “no reasonable prison official would

understand that executing a court order without investigating

its potential illegality would violate [a] prisoner’s right to be

free from cruel and unusual punishment.”46

Second, millions of people live in the Central Valley.

This includes many African-Americans and others with a

heightened risk of getting Valley Fever. Many people also

work in the same prisons where the inmates live, exposed to

45

Stein v. Ryan, 662 F.3d 1114, 1119–20 (9th Cir. 2011).

46

Id.

30 HINES V. YOUSEFF

the same fungal spores as the inmates. These people

voluntarily live and work in the Central Valley despite a

heightened risk of getting Valley Fever. Likewise, people

live in Arizona despite the risk of getting Valley Fever. Each

year, two-thirds of all Valley Fever cases are reported in

Arizona. And from 1998 to 2016, the infection rate in

Arizona nearly tripled.47 The infection rate is particularly

high around Phoenix, Arizona.48 Yet Arizona’s population

grew an estimated 35.1% between 2000 and 2016.49 Where

large numbers of people are exposed to a known risk, and yet

no societal consensus has emerged that the risk is intolerably

grave, a reasonable official can infer that the risk is one

society is prepared to tolerate, like the risk of being injured or

killed in a traffic accident.

Because so many people freely chose to live in the

Central Valley despite the Valley Fever risk, and there is no

evidence in the record that “society’s attitude had evolved to

the point that involuntary exposure” to either the heightened

risk inside prison or the lower risk outside prison “violated

current standards of decency,”50 it would not have been

“clear” to every reasonable officer that the inmates had a

valid claim under Helling. The inmates have failed to show

that every reasonable officer would have thought that “it

47

ARIZ. DEP’T OF HEALTH SERVS., VALLEY FEVER 2016 ANNUAL

REPORT 20 (2017).

48

Id. at 16, 22.

49

American FactFinder, U.S. CENSUS BUREAU (last visited July 16,

2018), https://factfinder.census.gov/bkmk/cf/1.0/en/state/arizona/popula

tion/pep_est.

50

Helling v. McKinney, 509 U.S. 25, 29 (1993).

HINES V. YOUSEFF 31

violate[d] contemporary standards of decency to expose

anyone involuntarily to such a risk,” that is, that the risk of

Valley Fever in the prisons was “not one that today’s society

chooses to tolerate.”51

We therefore affirm the district court rulings in Hines,

Smith, and Gregge holding that the officials are entitled to

qualified immunity against the Eighth Amendment claims.

We also hold that the district courts did not abuse their

discretion in denying the inmates’ motions for leave to

amend. Any attempt to amend the pleadings would be futile

because we see no way to hold that the officials violated a

clearly established Eighth Amendment right.

III. RACIAL DISCRIMINATION

For unknown reasons, Valley Fever disproportionally

affects African-Americans. State officials did not exclude

African-American inmates from the outbreak prisons until a

federal court ordered them to do so in 2013. Some of the

inmates in Jackson allege that this failure violated the Equal

Protection Clause of the Fourteenth Amendment.52

According to the complaint, the officials “intentionally

failed” to exclude African-American inmates from Pleasant

Valley and Avenal State Prisons (or otherwise reduce the risk

of harm) because the officials wanted to harm African-

American inmates. Thus, the inmates allege, it was

discriminatory to adopt a race-neutral exclusion policy that

excluded inmates from those prisons based solely on medical

51

Id. at 36 (emphasis in original).

52

See U.S. CONST. amend XIV, § 1 (“No state shall . . . deny to any

person within its jurisdiction the equal protection of the laws.”).

32 HINES V. YOUSEFF

conditions. That is, they allege it was discriminatory not to

discriminate. On a motion for judgment on the pleadings, the

district court held that the officials lacked qualified immunity.

The officials appealed, and we reverse. We address an

unusual Equal Protection claim that it was a denial of equal

protection not to segregate prisoners by race.

The district court analyzed this case as being about “the

right to non-discriminatory administration of prison services.”

The district court and the inmates both rely on Elliot-Park v.

Manglona,53 but that case is inapposite. In Elliot-Park, a

Micronesian drunk driver crashed into a Korean driver.54 The

investigating police officers were all Micronesian. The

Micronesian driver told an officer that “he had ‘blacked out’

while driving,” but the officers did not test him for

intoxication or arrest him for drunk driving.55 The Korean

driver sued the officers, arguing that their failure to

investigate or arrest the drunk driver was motivated by racial

animus against Koreans. We held that the officers lacked

qualified immunity because “[t]he right to non-discriminatory

administration of protective services is clearly established.”56

Because the officers considered race when deciding whom to

help, strict scrutiny applied.

But Elliot-Park did not establish that state actors could

violate the Equal Protection Clause by adopting a race-neutral

53

592 F.3d 1003 (9th Cir. 2010).

54

Id. at 1005.

55

Id. at 1006.

56

Id. at 1008.

HINES V. YOUSEFF 33

policy. Implicit in our holding in that case was the fact that

police officers typically arrest drunk drivers. The officers

diverged from the norm, allegedly because of racial animus.

That is, they allegedly treated Korean drivers differently than

they treated Micronesian drivers.

Here, by contrast, the officials did not have one policy for

African-American inmates and another for white inmates.

All inmates were treated the same, regardless of race. The

officials are said to have violated the Constitution precisely

because they treated the inmates the same regardless of

race—not, as in Elliot-Park, because they treated people

differently because of their race. So for the officials here to

lose qualified immunity, it would have to have been clearly

established that treating people of all races the same violated

the Equal Protection Clause. For three reasons, it would not

have been clear to a reasonable person, acting on the

officials’ information and motivated by their purposes,57 that

the Equal Protection Clause required excluding African-

American inmates from these prisons based on race.

First, from 2006 onward, a federal Receiver supervised

the prisons. During that time, multiple experts gave

recommendations. An exclusion policy went into effect in

2007. The Receiver modified that policy in 2010.58 It was

not until April 2012 that experts proposed excluding African-

57

See Norse v. City of Santa Cruz, 629 F.3d 966, 974 (9th Cir. 2010)

(en banc) (articulating a similar rule in a First Amendment retaliation

case).

58

Plata ECF No. 2617, at 2–3; id. ECF No. 2617-2, at 2.

34 HINES V. YOUSEFF

Americans from the Central Valley.59 The Receiver did not

formally recommend a policy that would exclude African-

Americans until November 2012.60 The inmates note that the

prisons objected to excluding African-Americans from the

affected prisons. But the inmates do not argue that the

prisons failed to obey the district court’s order once that order

was made. And again, since 2006, the prisons were under the

Receiver’s supervision. The officials adopted exclusion

policies in accord with the Receiver’s directions and under

the Receiver’s watchful eye. Therefore, an official could

have reasonably believed that the policies about excluding (or

not excluding) African-Americans from Central Valley

prisons did not violate the Equal Protection Clause.

There is a second reason why the officials have qualified

immunity: the Constitution generally demands race neutrality.

Over and over again, the Supreme Court has unambiguously

held that “all racial classifications” are invalid unless they

pass strict scrutiny.61 That is, an express racial classification

(like the ones the inmates want) is presumptively

59

Plata ECF No. 2580-3, at 13.

60

Plata ECF No. 2601, at 3. The Receiver did not want to rely

“solely on racial classifications,” id. at 7, so it crafted a risk-based cutoff

that had the effect of excluding African-Americans, inmates of “other

races” (e.g., Filipinos), and those over 55—but not Latino/Hispanic or

white inmates, id. at 8. It is clear that the Receiver considered race, not

just risk. Id. at 12. And being African-American is now, under the

Receiver’s cutoff, reason enough to keep an inmate out of the Central

Valley prisons.

61

Johnson v. California, 543 U.S. 499, 505 (2005); Gratz v.

Bollinger, 539 U.S. 244, 270 (2003); Adarand Constructors, Inc. v. Peña,

515 U.S. 200, 227 (1995); Shaw v. Reno, 509 U.S. 630, 650 (1993); see

also, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 312 (2013).

HINES V. YOUSEFF 35

unconstitutional. It can survive only if the state proves that

the classification is “narrowly tailored” to achieving a

“compelling” state interest.62 Even so-called “benign” racial

classifications must satisfy strict scrutiny.63 In Johnson v.

California, prison inmates challenged a policy of temporarily

segregating inmates based on race.64 Even though the prison

adopted the policy to avoid racial gang violence, the Supreme

Court plainly held that strict scrutiny applied.65

Mitchell v. Washington demonstrates how strict scrutiny

applies to race-based medical decisions.66 There, an African-

American inmate with Hepatitis C asked a prison doctor to

treat him with certain drugs. The doctor did not prescribe the

drugs because they “had been largely unsuccessful on

African-American males” with Hepatitis C.67 The inmate

sued the doctor on the theory that basing treatment decisions

on race violated the Equal Protection Clause. We held that

strict scrutiny applied because “even medical and scientific

decisions are not immune from invidious and illegitimate

62

Johnson, 543 U.S. at 505 (quoting Adarand, 515 U.S. at 227).

63

Id. (citing Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand,

515 U.S. at 226; and Shaw, 509 U.S. at 650).

64

Id. at 502–03.

65

Id. at 507–09. The Supreme Court remanded the case so that a

lower court could determine whether the policy survived scrutiny, id. at

515, but the parties settled before a lower court decided that issue.

66

818 F.3d 436 (9th Cir. 2016).

67

Id. at 441.

36 HINES V. YOUSEFF

race-based motivations and purposes.”68 Even though the

doctor might have had good intentions and good data—the

inmate later got the demanded treatment, and it was

unsuccessful—“there is simply no way of determining what

classifications are benign or remedial and what classifications

are in fact motivated by illegitimate notions of racial

inferiority or simple racial politics.”69 The doctor did not

give any compelling reason for why he considered the

inmate’s race, so he violated the Equal Protection Clause.70

Third, a reasonable official could have believed that not

excluding African-Americans from the prisons was consistent

with the scientific data and pre-2012 expert

recommendations. The California Department of Health

Services began investigating Valley Fever at Pleasant Valley

State Prison in 2005. It summarized its findings in a January

2007 report that assessed the relative risk of contracting

Valley Fever for various populations. Overall, inmates with

a chronic medical condition had a 2.7 “relative risk,” meaning

that they were 2.7 times more likely to contract Valley Fever

than inmates without a chronic condition. Inmates with

pulmonary conditions had a 3.8 relative risk. Diabetics had

a 2.7 relative risk. Those with chronic heart conditions had

68

Id. at 444.

69

Id. at 445 (quoting Shaw, 509 U.S. at 642–43).

70

Id. at 446; cf. Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015)

(holding that because a prison had “an objectively strong legal basis for

believing” that “exempting prisoners from race-neutral [housing policies]

on the basis of their religious beliefs” would violate the Equal Protection

Clause, the Religious Land Use and Institutionalized Persons Act did not

protect a white supremacist inmate that had a religious objection to being

housed with non-white inmates).

HINES V. YOUSEFF 37

a 1.6 relative risk. Inmates over age 40 had a 1.6 relative

risk. And African-American inmates had a 1.9 relative risk

compared to white inmates.

According to the report, 47% of African-American

inmates’ risk was due to race alone. But the report also

estimated that removing African-American inmates from the

prison would only reduce the number of Valley Fever cases

by, at most, 16%. And even though being African-American

was a risk factor for getting Valley Fever, the report said that

being African-American “was not associated with more

severe disease.” The two biggest risks were having a chronic

medical condition and being housed in a facility with more

outdoor exposure. So the report concluded that targeting

chronic conditions and outdoor exposure could do more to

decrease Valley Fever than targeting race or age. Based on

these relative risks, the state health department recommended

the following:

Consider relocating the highest risk groups to

areas that are not hyper-endemic for [the

fungal spores]. Previous studies have

suggested that the risk for extrapulmonary

complications is increased for persons of

African or Filipino descent, but the risk is

even higher for heavily immunosuppressed

patients. In this investigation, we found an

increased risk among persons with chronic

medical conditions, especially pulmonary

conditions. Prevention efforts are critical for

these higher risk populations and may

mitigate the risk, but physical removal of

these highest risk groups from highly endemic

38 HINES V. YOUSEFF

regions, if possible, would be the most

effective method to decrease risk.

A reasonable official could have read this report and its

recommendations and concluded that African-Americans did

not need to be excluded from the Central Valley based on

race. Even though African-American inmates had a higher

risk of getting Valley Fever than did white inmates, those

with chronic diseases typically had even higher risks. And

because nearly one-third of inmates were African-American,

a reasonable official could have decided that it was better to

try less burdensome measures first.

In short, it was reasonable to exclude inmates based on

medical conditions rather than based on race. Even if state

officials should have been more aggressive in excluding

inmates whose higher risk appeared to be on account of (or at

least connected to) their race, that does not mean their

conduct violated clearly established law. The inmates did not

have a clearly established right to be segregated from certain

Central Valley prisons based on their race. We therefore

reverse the Jackson court’s ruling on the equal protection

claim.71

CONCLUSION

We are sympathetic to the inmates’ plight. Valley Fever

is a serious and potentially fatal disease. When state officials

know that inmates face a substantial risk of serious harm, the

officials are constitutionally required to take reasonable steps

71

Regarding the claim that the officials violated the Equal Protection

Clause by failing to make the prisons safe, the same analysis applies.

HINES V. YOUSEFF 39

to abate that risk.72 State officials cannot shut their eyes to

inmate suffering; they are responsible for the safety of the

people in their custody.73 But it would not have been

“obvious” to any reasonable official that they had to

segregate prisoners by race or do more than the federal

Receiver told them to do. So we conclude that the defendants

are entitled to qualified immunity. The rights that the inmates

claim were not clearly established when the officials acted.

Granting leave to amend would be futile. We therefore

AFFIRM the judgments in Hines, Gregge, and Smith, and we

REVERSE the judgment on appeal in Jackson.

72

Farmer v. Brennan, 511 U.S. 825, 847 (1994).

73

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,

199 (1989); Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).