Petition for Writ of Certiorari — Corey Lamar Smith, et al., Petitioners v. Arnold Schwarzenegger, former Governor of California, et al.

Supreme Court briefJun 24, 2019

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3ht tfje

Supreme Court of tfje fHntteb States:

COREY LAMAR SMITH, ET AL.,

Petitioners,

ARNOLD SCHWARZENEGGER, ET AL.,

Respondents.

FILED

JUN 2*» 2019

9r5pCFEM°/J&EB!fL5RSK

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Corey Lamar Smith, Et Al.

Petitioners Pro Se

c/o Benjamin Pavone, Esq.

PAVONE & FONNER, LLP

501W. Broadway, Suite 800

San Diego, CA 92101

(619) 224-8885

BPAVONE@COX.NET

June 24,2019

SUPREME COURT PRESS

(888) 958-5705

Boston, Massachusetts

RECEIVED

JUN 2 7 2019

^fgg&SFCoumu&_

QUESTIONS PRESENTED

1. Did the Ninth Circuit misapply the clearly

established test’s generality principles by analyzing

the issue so specifically as to create a logical absurdity

relative to principles of Helling v. McKinney?

2. Did the Ninth Circuit err in applying qualified

immunity by misunderstanding the applicable incident

rate statistics, which drives the quantum of danger?

3. Can state officials be relieved of responsibility

because the California Plata health care Receiver

allegedly did not order them to take more robust

precautions?

PARTIES TO THE PROCEEDING

Petitioners and Plaintiffs-Appellants Below

Petitioners are 50 current prisoners and 67

formerly-incarcerated private citizens who contracted

valley fever while in California state custody, identified

as follows:

4 Petitioners

Asad Lewis

Abukar Abdulle

Cleofas Lewis

Richard Adams

George Lewis

Ruben Arechiga

Joe

Lewis

David T. Atzet

Robert Maeshack

Aubrey Derrico

Michael Manning

Garland Baker

Daniel Masushige

Fredrick Beagle

Ellis McCloud

Don Belardes

Jeffrey McDonald

Michael Blue

James McGinley

Daniel Boland

Charles McQuarn

Floyd Boyd

Juan Mermejo

Ray Bracamonte

Juan Meza

Gordon Bruce

Thomas Milford

Richard Burke

Dale Miller

Kevin Call

Herschel Mitchell

Charles Carter

Grady Montgomery

Pablo Castaneda

Michael Morrow

Clifford Chaney

Freddy Neal

Otha Clark

Raymond Newson

Robert Conley

Chek Ngoun

Kenneth Corley

Emmanuel Ocular

Roy Corning

Sim Peav

Walter Cornethan

Ill

Petitioners

Juan Penalva

David Cox

Marvin Pierce

Orlando Creswell

Robert Preston

Danny Dallas

Harvey Rayburn

Joe DeJesus

Jorge A. Reyes

Donald Dibble

Paul Richardson

Gerald Dickson

Ronald Ripoyla

Joseph Duran

Jay Roach

James Farr

Estate of Joseph Ferris

Rodney R. Roberts

David Robinson

Alvin Scott Flowers

Peter Romero

Steve G. Franklin

Lorenzo Sams

Aubrey Galloway

Johnny Sanchez

Christopher Garner

Tyrone Sanders

Candelario Garza

Albert Sherrod

John Gholar

Corey Lamar Smith

Robert Gonzalez

Kirk Smith

Vernon Grant

Ed Spence

Robert Harris

Willie Steels

Herman Haynes

Clifford Hayter

Tracy Stewart

Hector Talamantes

Sinohe Hercules

Maurice Thomas

Bret Hill

Tyrone Thompson

Damor Hill

Aaron Tillis

Ellis Hollis

Estate of John Enos

Jeremy Hollis

Vance Utley

Scott Imuta

Patrick Wallace

Infinity (NLN)

Kenneth Washington

Kenji Jackson

Byron West

Danilo Jalotjot

Bertrum Westbrook

George Johnson, III

Anthony Jones

Edward Jones

Lawrence Kerner

Milos Klvana

Bruce Koklich

Titi Lavea, Jr.

Petitioners

Thomas Wiley

Darren Williams

Wayne Woods

Donald Wright

Gerald Young

Respondents and Defendants-Appellees Below

Respondents are 14 state officials who were con

nected to the decision process in terms of declining to

implement safety precautions to insulate prisoners or

otherwise reduce the risk of contraction during the

epidemic. They are:

• Arnold Schwarzenegger

Former Governor of the State of California

• Jeffrey Beard

Former Secretary of the California

Department of Corrections and Rehabilitation

• Estate of Paul Brazelton

Former Warden Pleasant Valley State Prison

• Matthew Cate

Former Secretary of the California

Department of Corrections and Rehabilitation

• James Hartley

Former Warden of Avenal State Prison

• Susan L. Hubbard

Former Director Division of

CDCR Adult Operations

• Deborah Hysen

Director CDCR Facilities

Planning Construction & Management

• Felix Igbinosa M.D.

Former Medical Director

Pleasant Valley State Prison

• Scott Kernan

Former Chief Deputy Secretary

of Adult Institutions

• Chris Meyer

Former CDCR Chief of Facilities Planning

Construction & Management

• Tanya Rothchild

Former Chief of the Classification Services Unit

• Teresa Schwartz

Former Director Division of Adult Institutions

• Dwight Winslow M.D.

Former CDCR Medical Director

• James A. Yates

Former Warden of Pleasant Valley State Prison

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................................

PARTIES TO THE PROCEEDING........................

TABLE OF AUTHORITIES....................................

PETITION FOR WRIT OF CERTIORARI............

OPINIONS BELOW................................................

JURISDICTION...........................................

INTRODUCTION....................... .............. ....

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...... ........................

STATEMENT OF THE CASE................... .............

REASONS FOR GRANTING THE PETITION..... 11

Since This Court’s Helling Opinion, This

Case Stands Alone as Requiring the

Exact Disease from a Dangerous Envi

ronmental Condition to First Be Liti

gated to a Published Appellate Opinion

Before Official Responsibility for

Inmate Safety Is Obligatory..................... 13

II. Any Responsibility the Receiver Might

Share with Defendants Did Not Create a

Defense for Defendants............................. 23

CONCLUSION......................................................... 26

Vll

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Appeals for the Ninth

Circuit (February 1, 2019)................................. la

Memorandum Decision and Order Re Findings

and Recommendations (Doc. 164) Re Defend

ants’ Motions to Dismiss (Docs. 138, 140)

(October 7, 2015).............................................. 35a

Findings and Recommendations Recommending

Granting Defendants’ Motions to Dismiss on

the Grounds of Qualified Immunity (ECF Nos.

138-139, 140-141, 142, 154, 156, 158, 160, 161)

Objections Due Within Fourteen Days

(May 19, 2015).................................................. 72a

Order Adopting Findings and Recommendations

(ECF Nos. 38, 40) Fourteen Day Deadline

126a

(March 10, 2014)...... .

Findings and Recommendation Recommending

Granting in Part and Denying in Part Defend

ants’ Motion to Dismiss (ECF Nos. 25, 32, 33,

36) Objections Due Within Fourteen Days

130a

(February 20, 2014)

Order of the Ninth Circuit Denying Petitions for

158a

Rehearing En Banc (March 26, 2019).....

Consolidated Complaint—Relevant Excerpts

164a

viii

TABLE OF CONTENTS - Continued

Page

Smith & Gregge Consolidated Opening Brief

Relevant Excerpts ......................................... 200a

Smith & Gregge Consolidated Amended Reply Brief

216a

—Relevant Excerpts

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton,

483 U.S. 635 (1987)........................

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)........................

Baze v. Rees,

553 U.S. 35 (2008).........................

Board v. Farnam,

394 F.3d 469 (7th Cir. 2005).........

Brown v. Cate,

2015 WL 6535469 (E.D.Cal. 2015).

Clark v. Igbinosa,

2011 WL 1043868 (E.D.Cal. 2011)

Crawford-El v. Britton,

523 U.S. 574 (1998)......................

- Cruz v. Schwarzenegger,

2009 WL 256649 (E.D.Cal. 2009)..

Davis v. Kelso,

2015 WL 7007982 (E.D.Cal. 2015)

DeShaney v. Winnebago County,

489 U.S. 189 (1989)...................

Edison v. Geo,

822 F.3d 510 (9th Cir. 2016).......

9, 12, 22, 23

Escondido v. Emmons,

586 U.S.__ , 139 S.Ct. 500 (2019)

TABLE OF AUTHORITIES—Continued

Page

Farmer v. Brennan,

511 U.S. 825 (1994)

■I

13, 20

Gilbert v. Yates,

2010 WL 5113116 (E.D.Cal. 2010)

Gray v. Robinson,

481 Fed.Appx. 380 (9th Cir. 2012)

Gregge v. Cate,

584 Fed.Appx. 421 (9th Cir. 2014)

Helling v. McKinney,

501 U.S. 25 (1993)..........................

passim

Hines v. Youssef,

914 F.3d 1218 (9th Cir. 2019).... .

1, 22, 23, 25

Holley v. Scott,

2013 WL 399212SI (E.D.Cal. 2012)

Hope v. Pelzer,

536 U.S. 730 (2002).........................

21, 27

Hunter v Yates,

2009 WL 233791 (E.D. 2009)........

Hutto v. Finney,

437 U.S. 678 (1978)............ ............

Jackson v. California,

No. I:13-cv-0l055 (E.D.CA 2013).

16, 22

Johnson v. Pleasant Valley,

505 Fed.Appx. 631 (9th Cir. 2013)

King v. A venal,

2009 WL 546212 (E.D.Cal. 2009).

TABLE OF AUTHORITIES—Continued

Page

Lancaster v. Aung,

2012 WL 1355762 (E.D.Cal. 2009).

Love v. Mekemson,

2008 WL 942945 (E.D.Cal. 2008)..

Lua v. Smith,

2014 WL 1308605 (E.D.Cal. 2014)

Moreno v. Yates,

2010 WL 1223131 (E.D.Cal. 2010).

Panah v. United States,

No. 09-CV-6535 (C.D.Cal. 2009)........

Pearson v. Callahan,

555 U.S. 223 (2009)........................ .

Plata v. Brown,

No. 3:01-cv-01351-TEH, Dkt. 2661

(N.D.Cal.200l).................... ..............

passim

Samuels v. Ahlin,

584 Fed.Appx. 636 (9th Cir. 2014).

Saucier v. Katz,

533 U.S. 194 (2001).........................

passim

Scott v. Harris,

550 U.S. 372 (2007)..........................

Smith v. Brown,

2012 WL 1999858 (E.D.Cal. 2012)

Smith v. Schwarzenegger,

393 Fed.Appx. 518 (9th Cir. 2010)..

passim

Stevens v. Yates,

2012 WL 2520464 (E.D.Cal. 2012)

Xll

TABLE OF AUTHORITIES—Continued

Page

Thurston v. Schwarzenegger,

2008 WL 2129767 (E.D.Cal. 2008)

Widhy v. Lewis,

2007 WL 528766 (E.D.Cal. 2007).

Williams v. Yates,

2009 WL 3486674 (E.D.Cal. 2009)

Wilner v. Biter,

2015 WL 1830770 (E.D.Cal. 2015)

Wilson v. Layne,

526 U.S. 603 (1999)........................

Wyatt v. Cole,

504 U.S. 158 (1992)........................

Ziglar v. Abbasi,

137 S.Ct. 1843 (2017)......................

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. VIII...................

passim

STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. § 1291.....

28 U.S.C. § 2101(c),

42 U.S.C. § 1983.....

1,7

JUDICIAL RULES

Sup. Ct. R. 10(c)......

Xlll

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Baude, W., Is Qualified Immunity Unlawful?,

106 Calif. L. Rev. 45 (2018).................... .

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully request the Court to issue

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the district court was published

as Smith, et al. v. Schwarzenegger, et al., 137 F.Supp.

3d 1233 (E.D.Cal.2015). (App.35a). The Ninth Circuit

opinion was published as part of a larger consolidated

VF appellate effort, denominated as Hines, et al. v.

Youseff, et al., 914 F.3d 1218 (9th Cir. 2019). (App.la).

The petition for rehearing was denied on March 26,

2019. (App.l58a).

JURISDICTION

The judgment and opinion of the district court were

entered on October 23, 2015. (App.35a). Petitioners

appealed on October 25, 2015. The Ninth Circuit filed

its opinion on February 1, 2019. (App.la). Petitioners

timely sought rehearing on February 13, 2019. The

Ninth Circuit denied the petition on March 26, 2019.

(App.l58a). This petition is timely filed within 90 days,

by June 24, 2019.

Federal court jurisdiction is premised on 42 U.S.C.

§ 1983, with federal appellate court jurisdiction founded

on 28 U.S.C. § 1291. This Court’s appellate jurisdiction

is premised on 28 U.S.C. § 1254(l) and § 2101(c).

INTRODUCTION

This petition is presented by 117 personal injury

victims, consisting of 50 current and 67 former Cali

fornia state inmates subjected to a 10-year epidemic of

the lung disease coccidioidomycosis, also known as

“valley fever.”

Most cases of valley fever do not result in serious

health impacts, but for those it does seriously affect,

it causes varying degrees of debilitation and occasion

ally results in death. It is usually treatable. However,

in virtually all cases it requires a lifetime of medical

management including side effects from the strong,

anti-fungal medication.

From 2004-2014, thousands of inmates contracted

the ailment due primarily to a series of irresponsible

penological decisions by prison officials. They declined

to implement recommended safety precautions within

two facilities located inside the “hyperendemic” zone

of the San Joaquin Valley of California. This failure

cost taxpayers millions of needlessly-incurred medical

care costs in a decade long display of professional

irresponsibility, including violation of the Hippocratic

oath, which prioritizes prevention of disease over

treatment of it.

Other serious mistakes include a decision to build

a state hospital next to one prison without adhering

to standard construction practices for dust suppression.

This caused the infectious fungal spores residing in

the ground to enter the air and then invade the lungs

of the neighboring prisoners.

Additionally, the failure to take responsible mea

sures within the prisons themselves via traditional

clean-and-sanitary protocol allowed the spores to

achieve maximum impact on the incarcerated popula

tion.

Two hundred seventy (270) plaintiffs banded

together to press individual tort actions for wrongful

contraction, beginning in 2013. They were dismissed

at the 12(b)(6) pleading stage in 2015 based on the

defense of qualified immunity, a decision that was

upheld by the Ninth Circuit in 2019.

The Ninth Circuit’s ruling is problematic for two

major reasons: first, this Court’s 1993 case of Helling

v. McKinney, 509 U.S. 25, provided the prerequisite

published notice to state officials to take safety pre

cautions to prevent contraction of diseases and indeed

to take reasonable measures to protect prisoners

from all environmental conditions adverse to inmate

health. It. illustrated an example in that case by

announcing protection for inmates from a new kind of

danger, second-hand cigarette smoke.

The Ninth Circuit effectively negates Helling by

applying unprecedented specificity to this Court’s

paradigm established in Saucier v. Katz. Saucier

established the paradigm of generality to the clearly

established test and the Ninth Circuit held that a

prior case specific to valley fever was necessary to put

officials on formal notice.

But Helling notified officials to protect inmates

from all diseases. Coccidioidomycosis is a disease. Its

laboratory safety protocols are one level below Ebola.

To immunize officials until a case is published for each

and every disease, including one specific to valley fever,

results in a logical absurdity. It turns a simple direc

tive from this Court for officials to protect inmates

fi?om-danger-(in-this-case, - the-welUestablished-dangerof diseases) to one that impossibly requires every

individual disease to be recognized in published appel

late litigation before this Court’s directions apply.

The Ninth Circuit’s interpretation effectively negates

Helling's meaning and application.

Moreover, ten intervening years passed during the

epidemic in which the Ninth Circuit five times declined

to publish a valley fever case. The enforceability of

the Eighth Amendment should not be held hostage to

a court system that repeatedly declines to formally

notify state officials to take safety seriously. This is

another way the Ninth Circuit defeats the application

of Helling. In this example, the California federal court

system effectively extended official immunity until

the epidemic was over, a 12-year window of formalized

unaccountability for a series of ill-advised penological

decisions, ones that merited more than passing scrutiny

if Helling means anything.

The California federal court’s pubhcation decisions

separately represent a negation of the notice concepts

integral to the legitimate function of the qualified

immunity doctrine, as established by this Court’s

Saucier decision and its progeny.

The second major error is that the panel argued

that, in line with language originating in Helling (and

seen again in cases like Ashcroft), society residing in

the hyperendemic zone accepted a heightened risk

of valley fever contraction in electing to live there;

prisoners could expect no safer environment than the

larger public.

Apart from the fact that Petitioners did not elect

to live there, and the fact that they did not enjoy

innate Immunity as natiWTesidentS“often do,“this

comparison fails to acknowledge the statistical reality

that the prisons were 10-50 times more dangerous; the

rate of contraction was exponentially greater inside

the prisons as compared to private citizens living in

the nearby communities. The decision by the Ninth

Circuit to foreclose relief on this factual equivalence

rests on a well-documented and indisputable math

ematical error.

A grant of certiorari of this case cannot be justified

on the basis of an existing conflict between the appellate

circuits. No other government agency has argued that

the duty to protect prisoners from diseases is somehow

unsettled after Helling. Nor has any court in Petitioners’

research attempted to stake out the (controversial)

view that each disease must be individually litigated

before Helling applies. See Supreme Court Rule 10(c).

The Ninth Circuit opinion defies the language,

meaning and spirit of Helling, in a triplicate exercise

of assigning the Saucier generality level too specifically,

obfuscating the disparate incidence numbers between

the prisons and the surrounding area, and expanding

the window of official immunity by withholding timely

publication.

Understanding these sorts of complaints neverthe

less constitute a less common reason for this Court to

grant certiorari as compared to inter-circuit conflict,

a perusal of the California federal court system’s

ever-changing arguments, internal contradictions,

above violations, inconsistent intra-circuit opinions,

and most noticeably, several 180-degree reversals of

their own legal positions, amounts to an exception

ally troubled case history worthy of some form of

—correction^---------- -----------------------------------------------The Ninth Circuit’s historical application of the

Saucier generality paradigm has typically resulted in

some protection for civil rights claimants against

qualified immunity. If anything, the California courts

have sometimes applied the level of generality too

broadly, and thus too liberally, according to this

Court. See, e.g, Escondido v. Emmons, 586 U.S.__ ,

139 S.Ct. 500 (2019).

This case stands in diametric contrast to that

dynamic wherein here the Saucier test was applied

so hyper-specifically, it deprives the plaintiffs of the

benefit and supremacy of this Court’s rulings and the

consistency that the application of those rulings

require.

Sadly, this case chronicles an indefensible trans

gression from the Ninth Circuit’s ordinarily protective

stance toward the health of human beings and respect

for their civil rights.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel~and~unusualpunishments inflicted.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable. For

the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District

of Columbia.

STATEMENT OF THE CASE

From 2004-2014, prison officials observed dramat

ically increased rates of contraction of the disease

valley fever, in prisons located in California’s San

Joaquin Valley. App.l74a-189a. The most danger

originated in two particular facilities, Pleasant-ValleyState Prison (PVSP) and Avenal State Prison (ASP).

App. 178a-186a. The disease begins as a fungus in the

lungs, and left untreated, spreads to other parts of the

body resulting in increasing degrees of debilitation, up

to and including death. App.l74a-178a, 206a-215a.

Inmates began filing pro se lawsuits as early as

2007. A systematic effort through counsel to assert

Eighth Amendment claims based on the right to

protection against cruel and unusual punishment was

formalized in an initial filing in October, 2013.

App. 164a.

At the same time, in December 2013, a federal

district judge in the Northern District, within a

different lawsuit, the Plata action (relating more

generally to reform of inmate medical care), ordered

high-risk inmates (ones biologically at higher risk

than most native citizens of the Central Valley) to be

transferred out of Pleasant Valley and Avenal due to

unacceptable danger from the risk of contraction of

cocci. See Plata v. Brown, rNo. 3:01-cv-01351-TEH,

Dkt. 2661 (N.D.Cal.2001).

Notably, the Northern District’s legal argument

sits in operative contradiction to the positions of the

Eastern District Court and Ninth Circuit Court in

this appeal, which materially deviate from each other

in their legal reasoning, all of which conflict with a

different Ninth Circuit case {Edison), despite all legal

arguments being based on the same set of facts.

Regardless, Helling should control all of these matters.

By December 2015, 270 plaintiffs distributed across

13 complaints asserted individual actions. The first 7

actions were-cnnsolidated' into~a single-complaint- in—

November 2014, representing 160 “Smith” plaintiffs.

App.l64a-166a.

The remaining 6 actions consisting of 110 plaintiffs

were stayed pending the outcome of the appellate

decision made in the consolidated action. This latter

body of 110 plaintiffs (“Alanid’) intend to re-visit the

Ninth Circuit’s qualified immunity ruling now that

the stay has been lifted, despite the doctrine of stare

decisis. Of the 160 Smith plaintiffs directly governed

by the Ninth Circuit ruling, there are 117 before this

Court.

The state’s qualified immunity challenge in this

litigation was initially rejected by both the magistrate

and district court in the Eastern District. App.l57a,

129a. However, both judges later reversed their legal

position after the number of Smith plaintiffs became

apparent. App.71a, 125a.

These self-reversals by the Eastern District Court

resulted in the trial-level dismissal of the case in

October, 2015 and contribute to a larger body of

contradictory jurisprudence by the California federal

court system when it comes to the handling of valley

fever claims. App.71a, 125a, 129a, 157a; Edison v.

Geo, 822 F.3d 510, 522 (9th Cir. 2016); see fn. 2.

The Smith group appealed to the Ninth Circuit

while the Alaniz group was stayed at the trial level.

The Ninth Circuit ruled against the Smith plaintiffs

in February, 2019, by holding that qualified immunity

barred all claims. App.la, 6a.

Its decision rests on three arguments: (i) that

the level of generality for application of the Saucier

clearly^established'test'is'toTequire-a-prior-publishedcase specifically finding valley fever to be a potential

Eighth Amendment violation; (ii) that the rates between

the subject prisons and the local area were not

materially different so as to make the risk of contraction

unacceptable to Central Valley society; and (iii) state

officials allegedly deferred to the alleged policies of

the prison system’s alleged true authority on the

subject, the Plata Receiver. App.20a, 23a-24a.l

The Smith Plaintiffs petitioned for rehearing to

an en banc panel of the Ninth Circuit in February,

2019, which was denied on March 22, 2019. App.l58a163a.

1 The Jackson plaintiffs also asserted certain racial discrimination

claims. See App.27a. The Smith plaintiffs did not, in deciding to

stand on the disparate danger in the prisons, as to all inmates.

App.l68a.

REASONS FOR GRANTING THE PETITION

The Court should grant this petition based on

three legal arguments:

(l) the Ninth Circuit has periodically misapplied

the clearly-established test’s generality principles,

usually in the manner of applying it too broadly, but in

this case by applying it so narrowly as to effectively

emasculate this Court’s opinion in HeUing v. McKinney,

501 U.S. 25 (1993) and Helling’s application of the

Eighth Amendment’s prohibition against cruel and

unusual punishment.

Requiring a prior published case specifically

addressed to valley fever violates the language and

principles established in Helling, which 20 years earlier

announced protection for inmates against environ

mental dangers including diseases-ergo, including

coccidioidomycosis.

In addition, the Ninth Circuit’s five-year declina

tion to publish a valley fever case, and thus failure to

put officials on formal notice to implement safety

measures, results in an outcome that amounts to

immunity for all mistakes and misconduct during the

10-year window of mass infection. This translates to

zero accountability for a preventable epidemic. App.

178a-197a.

This is in spite of the fact that, during the

epidemic, dozens of inmates died, countless others were

maimed, thousands infected, and treatment-over

prevention resource misallocations (borne by taxpayers)

exceeded an estimated $100 million. App. 195a.

Nonetheless, the Ninth Circuit concluded that

prison officials had no obligation by virtue of the quali

fied immunity doctrine to implement safety precau

tions or to compensate injured victims. App.6a.

The concept of the qualified immunity doctrine’s

clearly established test being applied in this fashion,

to effectively require every disease, toxin, chemical and/

or environmental danger to be uniquely recognized in

appellate litigation before officials are required to

take action is anathema to this Court’s expectations

under Helling with respect to the Eighth Amend

ment. It results in a blank check for prison officials to

behave in a systematically irresponsible manner

with regard to prisoner safety, from the period

between their first detection of danger (here, in 2004)

and formal appellate publication, which in this case

did not occur until 12 years later in 2016. Compare

App.l78a-197a to Edison v. Geo, 822 F.3d 510 (9th

Cir. 2016).

(2) The Ninth Circuit position is also premised on

the factual assumption that the risk of contraction at

the subject prisons was no different from the surround

ing geographic area, in derogation of facts alleged in

the operative complaint and undisputed statistical

detail in the appellate record. App.203a-205a, 219a221a, 226a-235a, 20a.

The panel’s factual predicate is inaccurate. Data

on appeal established without contradiction that the

prisons, from 2004-2012, were 10-50 times more danger

ous than the geographic valley area around them,

and were 100-600 times more dangerous than the

larger State of California. App.203a-205a, 219a-221a,

226a-235a.

The Ninth Circuit ruled under the premise that

the rates between the prisons and the local area were

effectively equivalent (both being treated as “height

ened”) and maintained this position even after its

statistical misunderstanding was pointed out in plain

tiffs’ Petition for Rehearing. App.20a.

This misapplication marks the difference between

a risk that society accepts, and a risk that is expo

nentially higher, and thus one society does not accept.

Scotiv. Harris, 550 U.S. 372, 379, fn. 6 (2007).

(3) The Court should also grant review because

the Ninth Circuit’s decision to effectively assign fault

to the Plata Receiver is based on an under-developed

record that does not support the sweeping conclusions

and findings it made, nor does it represent a realistic

assessment of who possessed the necessary information

and controlled the levers of power to prevent the

spread of the disease in real time. See App.23a-24a.

Since This Court’s Helling Opinion, This Case

Stands Alone as Requiring the Exact Disease

from a Dangerous Environmental Condition to

First Be Litigated to a Published Appellate

Opinion Before Official Responsibility for

Inmate Safety Is Obligatory.

When state officials hold a person in custody, the

Constitution imposes a corresponding duty for them

to take reasonable safety measures. DeShaney v.

Winnebago County, 489 U.S. 189, 199-200 (1989);

Farmer v. Brennan, 511 U.S. 825, 832 (1994); Pearson

v. Callahan, 555 U.S. 223, 231 (2009).

As early as 1978, this Court first formally recog

nized prison officials’ failure to prevent the spread of

disease as a potential Eighth Amendment violation.

Hutto v. Finney, 437 U.S. 678, 682, 685 (1978).

In 1993, in the more widely-recognized case of

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

generally announced that inmates should be protected

from all dangers in their environment, in that case

second-hand cigarette smoke from a prisoner’s cellmate,

by commenting that diseases and dirty water merit

protection. Id., 33-34.

As alleged by the operative complaint, beginning

in 2004, state prison officials received a steady

stream of warnings and alerts from their experts and

from other authorities that epidemic-level numbers

of inmates were contracting valley fever and some were

dying. App.l78a-197a. Various safety recommendations,

principally exclusion but alternatively environmental

suppression, were made and effectively ignored. App.

178a-197a.

Prison officials passed a policy in 2007 that

excluded a select group of ultra-vulnerable inmates,

such as those who had recently undergone heart sur

gery, while ignoring the safety needs of the vast

majority of the population, including persons at wellknown higher biological risk, per the applicable

medical and scientific research. App.l78a-197a.

Because of the extremely limited exclusion policy,

thousands of inmates contracted valley fever, and

over the next seven years through 2014, a large number

suffered serious health consequences, including debili

tation and death. App.l78a-197a.

Inmates filed at least 36 pro se VF lawsuits from

2007-2014 in response.2

Of these, at least five were appealed to the Ninth

Circuit: Smith, Gray, Johnson, Ahlin and Gregge, in

2010, 2012, 2013, and the latter two in 2014. In all

five instances, the Ninth Circuit implicitly or explicitly

recognized that contraction of valley fever at least

potentially stated an Eighth Amendment violation.

Smith v. Schwarzenegger, 393 Fed.Appx. 518 (9th Cir.

2010); Gray v. Robinson, 481 Fed.Appx. 380 (9th Cir.

2012); Johnson v. Pleasant Valley, 505 Fed.Appx. 631

(9th Cir. 2013); Samuels v. Ahlin, 584 Fed.Appx. 636

(9th Cir. 2014); Gregge v. Cate, 584 Fed.Appx. 421

(9th Cir. 2014).

2 See, e.g., Widby v. Lewis, 2007 WL 528766 (E.D.Cal. 2007);

Thurston v. Schwarzenegger, 2008 WL 2129767 (E.D.Cal. 2008);

Love v. Mekemson, 2008 WL 942945 (E.D.Cal. 2008); Hunter v

Yates, 2009 WL 233791 (E.D. 2009); King v. Avenal, 2009 WL

546212 (E.D.Cal. 2009); Lancaster v. Aung, 2012 WL 1355762

(E.D.Cal. 2009); Cruz v. Schwarzenegger, 2009 WL 256649 (E.D.

Cal. 2009); Williams v. Yates, 2009 WL 3486674 (E.D.Cal. 2009);

Moreno v. Yates, 2010 WL 1223131 (E.D.Cal. 2010); Smith v.

Schwarzenegger, 393 FecLAppx. 518 (9th Cir. 2010); Gilbert v.

Yates, 2010 WL 5113116 (E.D.Cal. 2010); Gregge v. Cate, 584

FecLAppx. 421, 2015 WL 2448679 (9th Cir. 2014); Clark v.

Igbinosa, 2011 WL 1043868 (E.D.Cal. 2011); Gray v. Robinson,

481 FecLAppx. 380, 2011 WL 489035 (9th Cir. 2011); Stevens v.

Yates, 2012 WL 2520464 (E.D.Cal. 2012); Smith v. Brown, 2012

WL 1999858 (E.D.Cal. 2012); Johnson v. Pleasant Valley, 505

FecLAppx. 631 (9th Cir. 2013); Holley v. Scott, 2013 WL 3992129

(E.D.Cal. 2012); Samuels v. Ahhn, 584 Fed.Appx. 636 (9th Cir.

2014); Lua v. Smith, 2014 WL 1308605 (E.D.Cal. 2014); Brown

v. Cate, 2015 WL 6535469 (E.D.Cal. 2015); Wilner v. Biter, 2015

WL 1830770 (E.D.Cal. 2015), Davis v. Kelso, 2015 WL 7007982

(E.D.Cal. 2015).

Its rejection of this case contravenes in certain

ways a body of its own unpublished prior jurisprudence,

despite an operative complaint that was pled with

scientific certainty and statistical detail. Ibid, see,

e.g., App.l67a-198a.

The Ninth Circuit in each of the five instances

above also declined to publish its decision thereby

never placing prison authorities on formal notice to

implement precautionary safety measures.

Before the mass tort actions represented by the

Smith and Alaniz plaintiffs, valley fever litigation

originated in a single case (Panah v. United States,

No. 09-cv-6535 (C.D.Cal. 2009)), which the government

settled, and which was then followed by a class action,

Jackson v. California, filed in July 2013. Jackson v.

California, No. l:13-cv-01055 (E.D.CA 2013).

In Jackson, as relevant here, the magistrate judge

originally dismissed the state’s qualified immunity

argument in observing, based on Helling, that “[t]he

law was sufficiently clear prior to the claims raised

here that if prison officials are aware that certain

inmates are at a significantly higher risk of contracting

a disease based upon identifiable criteria, it would be

deliberate indifference to fail to take action to protect

those inmates.” App. 155a.

The district judge adopted the magistrate’s position

on qualified immunity without comment, in his order

adopting the Jackson magistrate’s report and recom

mendations. App. 129a.

In October, 2013, the Smith plaintiffs began filing

cases. By October, 2015, this activity had resulted in

253 individual claims.

The state renewed its qualified immunity challenge

to 160 of those claims, the Smith plaintiffs, arguing

that they had no clearly established right to avoid

the risk of contracting valley fever.

The magistrate documented the allegations of the

operative complaint in relating the disease process

by which cocci spores attack the body, the severity it

poses to those who for whatever reason are immunologically vulnerable, and the extensive history of

memos, warnings and alerts afforded to state officials

prior to the onset of the full-scale epidemic. App.77a87a.

However, this time the magistrate reversed his

position. He acknowledged that he had previously

viewed the issue as whether officials had an obligation

to protect high risk inmates from diseases, which

was exactly consistent with this Court’s position as

reflected by Helling. Now, with the reality of 253

additional pending claims, he redefined the issue as

whether “housing inmates in prisons in areas endemic

for valley fever, a naturally occurring soil-borne

fungus which can lead to serious illness, would violate

the Eighth Amendment.” App.90a.

Using this more specific phraseology, the magis

trate concluded that no prior published case had found

valley fever to constitute a viable Eighth Amendment

claim and Helling was therefore not applicable. App.

90a-105a.

The magistrate also found that “society accepts

exposure to Valley Fever .. . [because] over a million

people live in areas in which the cocci spores are

endemic and are subjected to the risk of contracting

[it]. Further, tens of thousands of individuals live in

those areas which are considered to be hyperendemic.”

App.101a, 110a.

The problem with this observation is that the

referenced population lives outside the prisons, where

the risk of contraction is 10-50 times lower. App.219a221a, 226a-235a. People who choose to be employed

by the San Jose Valley prisons, like employees of a

nuclear plant, do so for the financial benefits such

occupation affords, including automatic (workers’

compensation) benefits in the event of infirmity. Local

employees are also far more likely to enjoy innate

immunity.

Plaintiffs filed objections to challenge the magis

trate’s ruling. The district judge, who had also pre

viously rejected the state’s qualified immunity defense,

went in a third direction. He argued that this Court’s

Saucier paradigm regarding generality did not matter

at all, by curiously holding that “under any definition

of the constitutional right at issue in this case . . . the

substantial and unsettled case law concerning Valley

Fever at the district court level establishes that

Defendants are entitled to qualified immunity.” App.

49a.

The district judge then surveyed the universe of

differing outcomes and intellectual routes of the

many district level cases (and several unpublished

Ninth Circuit cases), to say that state officials could

not have clearly understood what their obligations

were given this body of muddled jurisprudence. App.

109a-121a.

By the end of the district court’s extended

intellectual journey, which was neither quick nor

easy, it concluded, up front, that “[t]his is a case

where the Court can ‘rather quickly and easily decide

that there was no violation of clearly established

law.’” App.50a-68a.

The district court’s analytical approach es inaccu

rate. Its position that the level of generality is

irrelevant to ah accurate conclusion contravenes the

Saucier paradigm. See Saucier v. Katz, 533 U.S. 194,

201 (2001). If the level of generality is framed as a

question of whether officials have been given published

notice to protect inmates from diseases, Helling

provided that notice in 1993. It would supersede any

body of lower court jurisprudence. District level cases

are only relevant in qualified immunity circles if no

higher authority is available. Wilson v. Layne, 526

U.S. 603, 617 (1999).

Helling was at all times binding on US district

courts. The lower courts nevertheless wiggled out of

Helling by engaging the Saucier paradigm at such a

hyper-specific level that enforcing compliance with

Helling becomes a practical impossibility.

Moreover, the premise of reviewing district level

pro joer-pled cases for resulting jurisprudential consis

tency itself constituted a design flaw in the district

court’s analysis, in that such consistency can hardly

be expected by judicial scrutiny of complaints prepared

by persons with no legal training. See fn. 2.

Given these several perceived errors, Plaintiffs

appealed. With a trial-level record of the lower courts

engaging in self-reversals, counter-factual inaccuracies,

and unorthodox applications of the established qualified

immunity analysis, Plaintiffs detailed, and provided

a bulk of statistical data to support, a precisely

accurate analysis of the qualified immunity defense.

See App.l99a-205a, 220a-221a, 226a-235a.

Petitioners in particular proved on appeal that

the magistrate’s factual predicate was statistically

inaccurate, in that the prisons were far more dangerous

on an incident-rate basis than the surrounding hyper

endemic zone. App.220a-221a, 226a-235a. A motion

for judicial notice on appeal was granted validating

the authenticity of the statistical data Plaintiffs relied

on. Their conclusions disproving the magistrate’s claim

were met with virtual acquiescence by all defendants.

However, the Ninth Circuit panel did not ack

nowledge or discuss this problem. Instead, it compiled

other statistics to show that migration patterns in

the Central Valley revealed that the population was

increasing. App.25a-26a. This evidence was assembled

to argue that society contemplating to move there

accepts a risk of valley fever, in sort of the same way

the magistrate reached the same conclusion by looking

at the size of the existing Central Valley population.

App.25a-26a, 101a-102a.

Nonetheless, these contentions did not change

Plaintiffs’ proof that, no matter how many people

lived in, or moved to, the Central Valley, the incidence

rate of valley fever in the prisons was dramaticallyepidemically-higher. App.220a-221a, 226a-235a.

The Ninth Circuit also assumed (without discus

sion) that the applicable Saucier level of generality

was to the specific disease, valley fever. App.l93a.

This is logically untenable for the reasons stated

above: it creates a ‘catalog’ exception that swallows

the protective rule announced by this Court in

Helling. See also Farmer v. Brennan, 511 U.S. 825,

828 (1994); Baze v. Rees, 553 U.S. 35, 49-50 (2008);

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

v. Pelzer, 536 U.S. 730, 742 (2002).

No one would seriously contend that officials

should be immunized from liability if notified as a

traffic matter to avoid oncoming cars, on the flimsy

response they were not specifically warned to avoid

oncoming Toyotas.

No one could rationally maintain that case law

directing officials to protect inmates from nuclear

radiation results in immunity unless a case unique to

Uranium 235 was previously litigated.

The entire idea of protecting inmates from environ

mental dangers, like diseases (which is what Helling

instructs) until each uniquely-named disease (here,

valley fever) is recognized by a published case is

logically indefensible. It negates Helling: It converts

what is already an increasingly controversial, and

some now say unwarranted, doctrine of partial govern

ment immunity into total immunity. See, e.g., Ziglar

v. Abbasi, 137 S.Ct. 1843, 1872 (2017) (Thomas, J., con

curring); Baude, W., Is Qualified Immunity Unlawful?,

106 Calif. L. Rev. 45 (2018).

The application here effectively rewrites the

Founding Fathers’ carefully-crafted Bill of Rights to

say that officials only violate the Constitution’s

Eighth Amendment cruel-and-unusual punishment

clause when they have first been told by the federal

courts that they violated it and then violate it a

second time. Constitutional originalists might note

that there is no mulligan clause within the text of the

Eighth Amendment. See Crawford-El v. Britton, 523

U.S. 574, 611 (1998) (Scalia, J., Diss.); Wyatt v. Cole,

504 U.S. 158, 170 (1992) (Kennedy, J., Cone.)

Separate and apart from these problems is yet

another problem: Edison. In 2016, while the Smith

mass action, Jackson class action, and one individual

action were pending on appeal (later published under

the umbrella name of Hines v. Youssef, 914 F.3d 1218

(9th Cir. 2019)), the Ninth Circuit decided Edison v.

Geo, 822 F.3d 510 (9th Cir. 2016), a valley fever case

against Taft federal prison.

There, the panel was unambiguous. Ruling on

another trial-level dismissal, the Ninth Circuit reversed

by finding wrongful contraction of coccidioidomycosis

to be worthy of compensation.

“In most individuals, cocci manifests primarily

as a minor fever. In an unlucky few, however, the

disease takes a different, more devastating course—

it causes a number of painful conditions, and can be

fatal... As prisoners, Plaintiffs were particularly

vulnerable to infection: Even if Plaintiffs had been

warned of the disease, they were unable to move to a

different location, remodel their living quarters, or

erect protective structures, such as covered walkways.

Thus, by placing prisoners at Taft, the BOP directly

increased Plaintiffs’ risk of harm. Under California

law, the United States had a duty to protect Plaintiffs

from the risk of contracting cocci.” Edison v. Geo, 822

F.3d 510, 513, 522 (9th Cir. 2016).

Due to the slightly different procedural context,

the defense of qualified immunity was not raised or

litigated. However, the tenor, tone and outcome of

the two opinions is stark. For the same legal problem

involving the same elevated danger (285x CA rate at

Taft versus 363x combined CA rate at PVSP/ASP),

Edison held that VF is a problem the United States

and private-provider Geo must answer for in damages,

in validating all plaintiff arguments and claims.

In contrast, in the umbrella litigation of Hines,

the Ninth Circuit brushed off plaintiffs’ protestations

of epidemic danger, immunized all prison officials,

dismissed all plaintiff arguments and claims, and left

the victims without a remedy.

Finally, on a related issue, the qualified immunity

doctrine seems pointedly contorted in the context of a

dynamic where as long as the judiciary never “tells”

the executive to take precautions, as occurred here

for 12 long years, government officials can act as if

the Eighth Amendment does not apply to them. This

is how the defendant officials behaved. Since they

had no formal obligation during the 2004-2014 window

of the epidemic, and despite lawsuits, warnings, expert

reports, activist alerts, pointed recommendations,

media attention and a general prison population

clamoring to avoid the “death dust,” they did almost

nothing. See App.35a-60a.

Yet, this Court’s decisions, as reflected most

prominently by a straightforward opinion like Helling,

apply to all government officials without the insertion

of convoluted exceptions.

II. Any Responsibility the Receiver Might Share

with Defendants Did Not Create a Defense for

Defendants.

The panel opinion also discusses the federal

Receiver’s role in the epidemic and relies on his

“orders” to prison officials. App.23a-24a. The Court

cites little authority in making sweeping conclusions

that prison officials respected or relied on these as

orders during the window in question. App.23a-24a.

The district court’s ruling did not address or depend

on the Receiver’s position. App.71a. A total of two

pages were addressed to the matter in the underlying

briefs.

The Receiver never appeared, detailed or defended

his decisions or defenses in a properly-worked up

record, particularly as to whether that office had

authority to issue the kind of safety precautions and

inmate transportation directives the panel ascribes

to it. Just as importantly, there is a question whether

the Receiver had sufficient time to study the problem

given the many other priorities his office faced in

being charged with reforming the entire California

prison medical system.

In particular, in the order of appointment, the

Receiver “shall provide leadership and executive

management of the California prison medical health

care delivery system with the goals of restructuring

day-to-day operations and developing, implementing,

and validating a new, sustainable system that provides

constitutionally adequate medical care to all class

members as soon as practicable. To this end, the

Receiver shall have the duty to control, oversee, super

vise, and direct all administrative, personnel, financial,

accounting, contractual, legal, and other operational

functions of the medical delivery component of the

CDCR.” Plata v. Brown, Case No. 3:0l-cv-01351, Dkt.

473 (N.D.Cal.200l) (underscore added).

In other words, the Receiver was tasked with

creating a better system of medical treatment. It is a

different and debatable question whether those powers

extended to proactive prevention during the plaintiffs’

contraction window, such as ordering specific facilities

to implement environmental suppression, commanding

wardens to transfer certain inmates to safer prisons,

or compelling a certain cleanliness standard within

the prisons.

On June 24, 2013, the Northern District implicitly

found that the Receiver could direct inmates to be

excluded, but Petitioners recall the exercise preceding

it as a point of contention up to Judge Henderson’s

decision. See Plata v. Brown, No. 3:01-cv-01351-TEH,

Dkt. 2661 (N.D.Cal.200l). Either way, the record is

devoid of the kind of serious work-up necessary for

the Ninth Circuit to adjudicate that matter in this

case, much less pin full responsibility for a mismanaged

facilities safety epidemic on a person assigned to

reform the way the prison system’s medical care is

delivered.

Messrs. Kelso (and Sillen) were not parties to the

instant appeal. Rather, the Receiver’s office was named

in some of the underlying actions but was dismissed

without prejudice pursuant to private tolling agree

ments entered in lieu of litigating against them on

the same track as the prison defendants. See, e.g.,

Smith v. Schwarzenegger, Case No. l:14-cv-00060-UOSAB, Dkt. 133.

Mr. Kelso was one of the actors on the solution

side of the problem. Prison officials were on the

defiance side of the equation, in both Plata and Hines.

Even if Mr. Kelso was not as initially proactive as

Petitioners might have preferred, foisting full respon

sibility on him given his other priorities is like

blaming the ER doctor for choosing which lives to

save first, after a mass shooting. He may have possibly

made some prioritization mistakes, but a modicum of

perspective prohibits focus on him for the larger

mess. It is unfair for the Ninth Circuit to have singled

him out for criticism in a published opinion.

Given these limitations on proper record devel

opment of this , complex issue, and given what was

essentially a footnote issue in the underlying litigation

here, awarding qualified immunity to defendants by

suggesting that Receiver Kelso was both entirely

empowered and entirely to blame for mismanaging

the 10-year epidemic is legally and morally misplaced.

App.23a-24a.

CONCLUSION

This case is defined by its absurdities.

During World War II, foreign prisoners of war

succeeded in avoiding contraction of valley fever, by

prevailing on American authorities to transfer them

to safety. In contrast, the plaintiffs before the Court,

being more vulnerable and with a greater amount

of information transmitted to more scientificallyadvanced decision makers 50 years later, are somehow

without remedy despite being American citizens with

a panoply of constitutional and legal rights.

One of the most significant mass torts in American

penological history, involving hundreds of life-altering

outcomes, has resulted in a lawsuit that cannot get

past the pleading stage, in contrast to federal cases

that have previously recognized a single day’s sun

exposure (Hope v. Pelzer, 536 U.S. 730 (2002)) and

deprivation of toothpaste (Board v. Farnam, 394 F.3d

469 (7th Cir. 2005)) as civil rights violations.

The opinion under review is founded on a dogged

refusal to acknowledge the statistical disparity between

the exponentially-higher danger in the state prisons

as compared to the surrounding geographical area.

Meanwhile, the same court validated comparable

danger from the same agent located in the same hyper

endemic area in a federal prison. Diseases do not dis

criminate between defendants convicted of state versus

federal offenses. Nor should judicial logic.

The opinion being challenged applies a Saucier

level of generality that is so hyper-specific as to

render absurd the operation of the qualified immunity

defense, and thus extinguishes this Court’s holding

in Helling v. McKinney, which otherwise has afforded

prisoners a constitutionally-minimal level of protection

for the last 25 years.

This hyper-specificity, requiring a published case

unique to cocci before any responsibility by prison offi

cials attaches, means that every germ, toxin, disease,

chemical and other unique environmental danger must

be individually, and thus impossibly, litigated to an

appellate outcome, before officials bear any responsi

bility for prisoner safety.

The notion that prison officials can ignore

numerous alarms, expert warnings and formal alerts,

and take no action in the face of nearly 40 lawsuits

because of a governmental appellate publication tech

nicality, and for the courts to then validate such

profound inaction on the same metric, undermines

professional responsibility norms and standards.

Mitigation measures that worked well to minimize

the spread of the disease in the 1940’s were ignored

at a current annual cost of less than $1M per prison.

App.58a, 159a. Over the course of 10 years, the impact

of the epidemic could have been avoided or greatly

reduced for 1/5 of what was actually spent-estimated

at over $100M in subsequent medical care expenses.

App.41a-60a, 58a. If such wasteful exercises are not

corrected, they will be repeated at additional taxpayer

expense.

Most importantly, the Ninth Circuit did not apply

the law as established by this Court in Helling. This

Court should grant certiorari to correct the Ninth

Circuit’s rejection of its precedent.

Respectfully submitted,

Corey Lamar Smith, et al.

Petitioners Pro Se

c/o Benjamin Pavone, Esq.

PAVONE & FONNER, LLP

501W. Broadway, Suite 800

San Diego, CA 92101

(619) 224-8885

BPAVONE@COX.NET

Abukar Abdulle, Richard Adams, Ruben Arechiga,

David T. Atzet, Aubrey Derrico, Garland Baker, Fred

rick Beagle, Don Belardes, Michael Blue, Daniel

Boland, Floyd Boyd, Ray Bracamonte, Gordon Bruce,

Richard Burke, Kevin Call, Charles Carter, Pablo

Castaneda, Clifford Chaney, Otha Clark, Robert

Conley, Kenneth Corley, Roy Corning, Walter Corne-

than, David Cox, Orlando Creswell, Danny Dallas,

Joe DeJesus, Donald Dibble, Gerald Dickson, Joseph

Duran, James Farr, Estate of Joseph Ferris, Alvin

Scott Flowers, Steve G. Franklin, Aubrey Galloway,

Christopher Garner, CAndelario Garza, John Gholar,

Robert Gonzalez, Vernon Grant, Robert Harris,

Herman Haynes, Clifford Hayter, Sinohe Hercules,

Bret Hill, Damor Hill, Ellis Hollis, Jeremy Hollis,

Scott Imuta, Infinity (NLN), Kenji Jackson, Danilo

Jalotjot, George Johnson, III, Anthony Jones, Edward

Jones, Lawrence Kerner, Milos Klvana, Bruce

Koklich, Titi Lavea, Jr., Asad Lewis, Cleofas Lewis,

George Lewis, Joe Lewis, Robert Maeshack, Michael

Manning, Daniel Masushige, Ellis McCloud, Jeffrey

McDonald, James McGinley, Charles McQuarn, Juan

Mermejo, Juan Meza, Thomas Milford, Dale Miller,

Herschel Mitchell, Grady Montgomery, Michael

Morrow, Freddy Neal, Raymond Newson, Chek Ngoun,

Emmanuel Ocular, Sim Peav, Juan Penalva, Marvin

Pierce, Robert Preston, Harvey Rayburn, Jorge A.

Reyes, Paul Richardson, Ronald Ripoyla, Jay Roach,

Rodney R. Roberts, David Robinson, Peter Romero,

Lorenzo Sams, Johnny Sanchez, Tyrone Sanders,

Albert Sherrod, Corey Lamar Smith, Kirk Smith, Ed

Spence, Willie Steels, Tracy Stewart, Hector Talamantes, Maurice Thomas, Tyrone Thompson, Aaron

Tillis, Estate of John Enos, Vance Utley, Patrick

Wallace, Kenneth Washington, Byron West, Bertrum

Westbrook, Thomas Wiley, Darren Williams, Wayne

Woods, Donald Wright, Gerald Young.

June 24, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.