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
Ask Donna
What actually matters in this document.
Text
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
Smith & Gregge Consolidated Opening Brief—
200a
Relevant Excerpts
Smith & Gregge Consolidated Amended Reply Brief
216a
—Relevant Excerpts
App.la
OPINION OF THE COURT OF APPEALS
FOR THE NINTH CIRCUIT
(FEBRUARY 1, 2019)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 15-16145
DARNELL T. HINES,
Plain tiff-Appellan t,
v.
ASHRAFE E. YOUSEFF, M.D.;
GODWIN C. UGUEZE, M.D.; JOSHUA GARZA,
RNP; M. AGUIRRE,
Defendants-Appellees.
D.C. No. l:13-cv-00357- AWI-JLT
Appeal from the United States District Court for the
Eastern District of California Anthony W. Ishii,
District Judge, Presiding
No. 15-17076
ARTHUR DUANE JACKSON; LEONARD M.
LUJAN; MARCUS JACKSON; RODNEY TAYLOR;
LACEDRIC W. JOHNSON; L. T. BELTON;
App.2a
NORMAN JOHNSON; COREY LAMAR SMITH;
FREDERICK BEAGLE; ABDULLE ABUKAR,
Plain tiffAppellees,
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.
D.C. No. l:13-cv-01055-LJO-SAB
No. 15-17155
COREY LAMAR SMITH; DION BARNETT;
CHRISTOPHER E. GARNER; RODNEY RAY
ROBERTS; JEREMY ROMO; DANNY DALLAS;
FREDERICK BEAGLE; DON BELARDES; FLOYD
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;
App.3a
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; 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 0. SANCHEZ; EDWARD
SPENCE; TRACY L. STEWART; LOUIS THOMAS;
ELONZA JESSE TYLER; VANCE UTLEY; BYRON
App.4a
WEST; WILLIAM WILEY; RODNEY WILLIAMS;
ROBERT WOLTERS; MICHAEL MORROW;
DAMOR HILL; COREY CAMPBELL; ROBERT
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,
Plain tiff-Appellan ts,
v.
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.
App.5a
ROTHCHILD; TERESA SCHWARTZ; JAMES A.
YATES, Warden; DWIGHT WINSLOW, M.D.; FELIX
IGBINOSA, M.D ; EDMUND G. BROWN, JR.,
Governor,
Defendants-Appellees.
D.C. No. l:14-cv-00060-LJO-SAB
No. 15-17201
LORENZO GREGGE, JR.,
Plaintiff-Appellant,
v.
MATTHEW CATE; RALPH DIAZ, Secretary,
California Department of Corrections and
Rehabilitation;* JAMES A. YATES, Warden,
Defendants-Appellees.
D.C. No. 1:15-cv-OO 176-LJO-SAB
* With respect to all official capacity claims, Ralph Diaz is sub
stituted 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 pubhc office
when the complaints were filed were sued in their individual
capacities.
App.6a
Appeal from the United States District Court for the
Eastern District of California Lawrence J. O’Neill,
Chief Judge, Presiding
Before: Andrew J. KLEINFELD and Sandra S.
IKUTA,** Circuit Judges, and Rosanna Malouf
PETERSON,*** District Judge.
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.
** 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.
r
kirk
The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by desig
nation.
App.7a
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 con
sent 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 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 exer
cise of those powers “for the duration of the Receiver
ship.’^ The Receiver has filed papers with the Plata
district court, and the district court has entered orders
to improve medical care.5
1 Plata v. Davis, No. 01-cv-01351 (N.D. Cal. June 13, 2002), ECF
No. 68.
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.
3 See Plata v. Schwarzenegger, 603 F.3d 1088, 1091-92 (9th Cir.
2010) (recounting the history of the receivership); Plata v. Brown,
App.8a
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.
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. Onefourth 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
754 F.3d 1070, 1079-80 (9th Cir. 2014) (providing a timeline of
the receivership).
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).
App.9a
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.
Some groups of people have an above-average risk
of experiencing severe symptoms or developing dis
seminated cocci. One risk factor is having an under
lying medical condition, such as HIV, diabetes, or heart
disease. Another risk factor is being on a medication
that suppresses the immune system, such as chemo
therapy. 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 inves
tigate 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.
App.lOa
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 physic
ally 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 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 inter
mittent or continuous oxygen therapy; [and] (£) Inmatepatients 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
App.lla
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 “edu
cation 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 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 AfricanAmerican, 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
7 Plata v. Brown, ECF No. 2580.
8 Plata v. Brown, ECF No. 2618.
App.l2a
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,
allowDddding 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. 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
9 Plata v. Brown, No. 01-01351, 2013 WL 3200587 (N.D. Cal. June
24, 2013), ECF No. 2661.
10 From 2000 to 2010, about 29% of California’s male inmates
were African-American. Just 7% of Californians were AfricanAmerican. CAL. DEFT 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/c2010br-06.pdf.
App.l3a
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 symp
toms.
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 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 south
western 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.
App.l4a
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 in
mates’ 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 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
App.l5a
Amendment by intentionally failing to protect AfricanAmerican 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.
STANDARDS OF REVIEW
We have jurisdiction over all four appeals.H 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 novol2 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
1128 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).
App.l6a
complaints if those complaints do not “contain suffi
cient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.”i5 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.”l6
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. l7
Despite these different procedural stages and
legal tests, the facts alleged in the Smith, Gregge, and
Jackson complaints are largely identical to the evid
ence produced in Hines. Each of the appeals also
presents the same basic question: whether the constitu
tional 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 vio
lation of the Eighth Amendment. They are also entitled
to qualified immunity against claims that they racially
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).
17 Fed. R. Civ. P. 56(a), (c).
App.l7a
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 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.”l9
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 practi
tioner, 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.
18 Menotti v. City ofSeattle, 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).
App.l8a
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 unusual punishments” by being delib
erately 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: (l) whether
the official’s conduct violated a constitutional right;
and (2) whether that right was “clearly established” at
20 See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)
(permitting us to affirm on any ground supported by the record).
21 See U.S. CONST, amend. VIII (“Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punish
ments inflicted.”).
App.l9a
the time of the violation.22 Helling v. McKinney sets
out the constitutional framework for Eighth Amend
ment claims about involuntary exposure to environ
mental 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.
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
22 Castro v. Cty. ofL.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en
banc).
23 509 U.S. 25 (1993).
24 Id. at 35.
25 Id. at 36.
26 Id.
27 Id. at 35.
App.20a
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: 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.”81
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.
28 511 U.S. 825, 847 (1994); see alsoMendiola-Martinez v. Arpaio,
836 F.3d 1239, 1248-49 (9th Cir. 2016).
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 Mullemxv. Luna, 136 S. Ct. 305,308 (2015) (per curiam) (internal
quotation marks omitted).
App.21a
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 punish
ment to expose 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
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).
)
App.22a
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
We therefore conclude that when the officials
acted, existing Valley Fever cases did not clearly
establish that they were violating the Eighth Amend
ment.
B. Eighth Amendment Principles
Of course, we do not require that heightened ex
posure 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 consti
tutional 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
36 id.
37 See Clark v. Igbinosa, No. l:10-cv-01336, 2011 WL 1043868, at
*2 (E.D. Cal. Mar. 21, 2011); James v. Yates, No. l:08-cv-01706,
2010 WL 2465407, at *4 (E.D. Cal. June 15, 2010).
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.
App.23a
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 reason
able 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 super
vised 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
41 Browder v. City ofAlbuquerque, 787 F.3d 1076, 1082-83 (10th
Cir. 2015).
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.
App.24a
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.
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 recom
mendations that were not orders. In determining what
constituted the constitutionally sufficient level of pro
tection, 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
45 Stein v. Ryan, 662 F.3d 1114, 1119-20 (9th Cir. 2011).
App.25a
without investigating its potential illegality would vio
late [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 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
4 Q id.
47 AKIZ. 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/cPl.0/en/state/
arizona/population/pep_est.
App.26a
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
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 out
break 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
50 Helling v. McKinney, 509 U.S. 25, 29 (1993).
51 Id. at 36 (emphasis in original).
App.27a
the Fourteenth Amendment.52 According to the com
plaint, 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 AfricanAmerican 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 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 intox
ication or arrest him for drunk driving.55 The Korean
driver sued the officers, arguing that their failure to
52 See U.S. CONST, amend XTV, § 1 (“No state shall. . . deny to
any person within its jurisdiction the equal protection of the
laws.”).
53 592 F.3d 1003 (9th Cir. 2010).
54 Id. at 1005.
55 Id. at 1006.
App.28a
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 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 ElliotPark, 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
56 Id. at 1008.
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).
App.29a
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-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.
58 Plata ECF No. 2617, at 2-3; id. ECF No. 2617-2, at 2.
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.
App.30a
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 class
ifications” are invalid unless they pass strict scrutiny.61
That is, an express racial classification (like the ones
the inmates want) is presumptively 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
61 Johnson v. California, 543 U.S. 499, 505 (2005); Gratzv. Bollin
ger, 539 U.S. 244, 270 (2003); Adarand Constructors, Inc. v.
Pena, 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).
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).
App.31a
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 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
67 Id. at 441.
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), 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.
App.32a
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
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 con
dition 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 depart
ment recommended the following:
Consider relocating the highest risk groups
to areas that are not hyper-endemic for [the
fungal spores]. Previous studies have sugges
ted that the risk for extrapulmonary complica
tions is increased for persons of African or
Filipino descent, but the risk is even higher
for heavily immunosuppressed patients. In
App.33a .
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 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 AfricanAmericans 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 reason
able 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
71 Regarding the claim that the officials violated the Equal
Protection Clause by failing to make the prisons safe, the same
analysis applies.
App.34a
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 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 estab
lished 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 DeShaneyv. Winnebago Cty. Dep’tofSoc. Servs., 489 U.S. 189,
199 (1989); Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).
App.35a
MEMORANDUM DECISION AND ORDER RE
FINDINGS AND RECOMMENDATIONS
(DOC. 164) RE DEFENDANTS’ MOTIONS TO
DISMISS (DOCS. 138, 140)
(OCTOBER 7, 2015)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
COREY LAMAR SMITH, ET AL.,
Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
Defendants.
Lead Case No.: l:14-cv-60-LJO-SAB
Member Case Nos.: l:13-cv-1618-AWI-SKO
l:13-cv-1822-AWI-GSA
l:14-cv-369-MJS
1:14-CV-430-LJO-SAB
1:14-cv-816-LJ O-SAB
1:14-cv-1074-LJO-GSA
1:14-cv-1226-LJ O-SAB
1:14-cv-1395-LJ O-SAB
1:14-cv-1559-LJ O-SAB
1:14-cv-1697-LJ O-DLB
Before: Lawrence J. O’NEILL, United States District
Judge.
App.36a
I.
Introduction
Coccidioidomycosis, commonly known as ‘"Valley
Fever,” is an infection caused by inhaling the spores of
the fungus Coccidioides, which is endemic to the soil
throughout the southwestern United States, and is
particularly prevalent in California’s San Joaquin
Valley.1 Valley Fever infections generally cause mild
flu-like symptoms (or no symptoms at all), but the
“disseminated” form of the disease, which occurs when
the infection disseminates beyond the lungs and into
other parts of the body, can cause serious, life-long
health complications, and even death. Some groups of
individuals, including certain ethnic groups, individuals
over the age of 55, and individuals with compromised
immune systems, are particularly susceptible of dev
eloping disseminated Valley Fever.
This consolidated action is one of many civil rights
cases currently pending in this district brought under
42 U.S.C. § 1983 (“§ 1983”) by current and former
inmates who contracted Valley Fever while incarcerated
at prisons located in the San Joaquin Valley, where
cocci naturally exist. Plaintiffs, 159 current and former
inmates who contracted Valley Fever while incarcerated
in San Joaquin Valley prisons, bring this class action
against Defendants, various California prison officials,
for (l) violation of the Eighth Amendment and (2)
negligence. *SeeDoc. 113, Consolidated Amended Com
plaint (“CAC”), at 2. Plaintiffs’ claims are premised on
their assertion that Defendants’ intentional actions
and inaction unconstitutionally and negligently ex
posed them to an unreasonable risk of contracting Valley
1 Valley Fever and the spores that cause it often are referred to
interchangeably as “cocci.”
App.37a
Fever and, ultimately, caused them to contract the
disease.
Currently pending before the Court is Defendants’
motion to dismiss Plaintiffs’ Consolidated Amended
Complaint (“CAC”) in its entirety. Doc. 138. The
Magistrate Judge issued Findings and Recommenda
tions (“F&Rs”), Doc. 164, to which the parties filed
objections and responses. Docs. 175, 177-79. The
Magistrate Judge recommends dismissing Plaintiffs’
Eighth Amendment claim without leave to amend on
the ground Defendants are entitled to qualified immu
nity from the claim. Doc. 164 at 36. Because that claim
is the only basis for federal court jurisdiction, the
Magistrate Judge further recommends declining to ex
tend supplemental jurisdiction over Plaintiffs’ neglig
ence claim and dismissing it without leave to amend.
Id.
In addition, after the F&Rs issued and Plaintiffs
filed their objections to them, Plaintiffs filed a motion
to amend the CAC to add an additional defendant
(Doc. 182), and the parties filed a stipulation concerning
Plaintiffs’ naming another defendant in the CAC (Doc.
183), both of which were stayed by the Magistrate
Judge pending the Court’s consideration of the F&Rs.
Doc. 184 at 2. The Magistrate Judge reasoned that any
amendment would be futile if the Court adopted the
F&Rs. Id.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court
has conducted a de novo review of the F&Rs and the
relevant record. See Wang v. Masaitis, 416 F.3d 992,
1000 n.13 (9th Cir. 2005); Fed. R. Civ. P. 72(b)(3). For
the following reasons, the Court ADOPTS the Magis
trate Judge’s recommendations to dismiss without leave
to amend Plaintiffs’ Eighth Amendment claim and to
App.38a
decline supplemental jurisdiction over their negli
gence claim.
II. Factual and Procedural Background^
Plaintiffs’ 276-page CAC names as Defendants
former California Governor Arnold Schwarzenegger,
13 various California prison officials, and Doe Defen
dants 1-50.3 CAC at 6-7. Plaintiffs bring claims
against Defendants for (l) violation of their Eighth
Amendment rights and (2) negligence under California
state law.4 The crux of Plaintiffs’ claims is that
Defendants’ acts and omissions recklessly “caused the
Plaintiffs to contract Valley Fever, a lifelong crippling
disease.” Id. at HI 1, 9. Specifically, Plaintiffs allege
Defendants knew that housing inmates, like Plaintiffs,
2 The Court has considered the entire record, but will discuss
only the aspects of it necessary to resolve Defendants’ motions to
dismiss. The Court incorporates by reference the factual and
procedural background outlined in the F&Rs. Doc. 164 at 2-3, 411.
3 The CAC named J. Clark Kelso as a Defendant, but Plaintiffs
voluntarily dismissed him. Doc. 135.
4 The individual Plaintiffs do not bring identical claims. First,
some Plaintiffs bring both Eighth Amendment and negligence
claims, whereas other Plaintiffs only bring one of those claims.
See, e.g., CAC at HI 2269 (Plaintiff Abukar Abdulle brings both
a federal and a state claim), 2271 (Plaintiff Richard Adams
brings only a federal claim). Further, the individual claims are
not brought against all Defendants because certain Defendants
were involved only at prisons where certain Plaintiffs were not
housed. For instance, Defendant Brazelton was involved with
only Pleasant Valley State Prison (“PVSP”). Id. at H 2091. As
such, Plaintiffs who were not housed at PVSP do not bring claims
against him. See, e.gid. at H 2272 (Plaintiff Richard Adams, who
was housed at only ASP, does not bring claims against Brazelton).
App.39a
in prisons where Valley Fever was known to be hyperendemic6 while failing to implement remedial and
preventative measures6 to reduce inmate exposure to
cocci “posed an unacceptable risk of irreparable harm.”
Id. at KH 10, 12, 52. In addition, Defendants allowed
“major construction” at the prisons, which churned
the soil and released cocci into the air. Id. at f 15.
Plaintiffs’ allegations are informed by, among other
things:
a) review and analysis of public documents
published by the State of California, Depart
ment of Corrections and Rehabilitation
(CDCR) and other public agencies; b) review
and analysis of public filings, press releases
and other publications by certain of the
defendants and other non-parties; c) review
of news articles, medical and other reference
sources, as well as postings on the State of
California CDCR and correctional facility
websites concerning the issues described [in
the CAC]; and d) review of other available
information concerning CDCR’s operations, the
6 These prisons include Avenal State Prison (“ASP”); California
Correctional Institution; California State Prison-Corcoran; Wasco
State Prison (“WSP”); North Kern State Prison; PVSP; California
Substance Abuse Treatment Facility and State Prison, both of
which are in Corcoran; and Kern Valley State Prison. CAC at
Tf 51. Plaintiffs were housed in these and other correctional
facilities within the San Joaquin Valley.
6 Among other things, Plaintiffs allege Defendants knew the
following measures would have abated the Valley Fever risks:
paving, landscaping, soil stabilization, improved ventilation,
respiratory protective gear, and cautioning inmates to stay
indoors during high wind conditions. CAC at UK 12-13.
App.40a
medical conditions and treatment described
[in the CAC], and the individual defendants.
Id. at 1 3.
The incidence rates of Valley Fever at these prisons
were significantly higher than the rates in the counties
in which they are located. For instance, “[i]n comparison
with the rate in California (7/100,000), the rate at
PVSP was 1,001 times higher (7011/100,000), the rate
at ASP was 189 times higher (1326/100,000) and the
rate at WSP was 114 times higher (800/100,000).” Id.
at f 64. The rates at these prisons were much higher
than the rate in Kern County, the county with the
highest incidence rate of Valley Fever in California
(135/100,000). Id. at 1 66. The rate of Valley Fever
cases at PVSP was 38 times the rate of Coalinga
residents and 600 times the rate in Fresno County. Id.
at Tf 69. Further, the rate at PVSP was 6 times higher
than the rate at the adjacent mental health facility.
Id. at If 76.
African-Americans, Filipinos, individuals over
the age of 55, and individuals with “pre-existing
health conditions” or compromised/suppressed immune
systems are more susceptible to contracting Valley
Fever and are more prone to developing disseminated
Valley Fever. Id. at Iff 71, 81, 84, 86, 2633. AfricanAmericans accounted for approximately 68% of those
infected and died at approximately twice the rate of non
black inmates. Id. at f 67. “In fact, African-American
prisoners comprised 71% of the 34 Valley Fever deaths
in CDCR prisons between 2006 and 2011.” Id. at Tf 88.
In 2013, medical experts found that 70% of the 36
inmate deaths caused by Valley Fever were African-
App.41a
Americans and 76% had an immune-compromised
condition, such as HIV or diabetes. Id. at ^ 2635.7
Between 2006 and 2012, medical experts, CDCR,
California public health agencies, a Fresno County
Grand jury, and various media organizations had
researched the Valley Fever “epidemic” at San Joaquin
Valley prisons, and circulated numerous reports,
memoranda, and studies to prison officials. See id. at
91-127. In addition, in 2012, the federal courtappointed Received managing the California State
prison system’s health care program issued “Recom
mendations for Immediate Response to Coccidioido
mycosis in CDCR Prisons.” Id. at 2632. Plaintiffs
allege Defendants were fully aware of the information
discussed in these documents, but “took no action.” Id.
at IHf 91, 128-29. Defendants failed to prevent Plain
tiffs and other high-risk inmates from being housed at
hyper-endemic prisons, although they had the means
and ability to do so. Id. at flf 143, 145. Similarly,
Defendants failed to implement remedial and preven
tative measures to reduce the risk of infection at the
prisons, although they had the ability and means to do
so. Id. at Tfl 179-80.
7 Most, but not all Plaintiffs were at heightened risk of
contracting Valley Fever and developing disseminated Valley
Fever due to their ethnicity or medical status. See, e.g., CAC at
It 1066-69 (Plaintiff Kokhch does not allege he was at heightened
risk for Valley Fever); id. at
1313-15 (Plaintiff Morrow does
not allege he was at heightened risk for Valley Fever).
8 In 2005, the Northern District of California ordered the
California prison healthcare system to be placed under a federal
receivership. See Plata v. Schwarzenegger, No. C01-1351 THE,
2005 WL 2932253, at *1 (N.D. Cal. Oct. 5, 2005).
App.42a
The thrust of Plaintiffs’ Eighth Amendment claim
is that Defendants knew of the “serious, epidemic level
of risk of harm,” id. at f 2598, posed by cocci at San
Joaquin Valley prisons, yet consciously decided not to
do anything to mitigate those risks or to protect Plain
tiffs from them. Id. at 258; id. at f 2648-49. “In fact,
Defendants not only failed to implement remedial mea
sures to reduce Plaintiffs’ risk of infection, they persisted
in practices that increased that risk.” Id. at 2642.
Specifically, Defendants continued with construction
at the prisons, which churned soil and released cocci,
thereby exacerbating the Valley Fever problem. Id. at
ft 2643-45. These acts and omissions also provided
the basis for Plaintiffs’ negligence claim brought
under California law.
Defendants move to dismiss both claims under Fed.
R. Civ. P. 12(b)(6). Docs. 138,140. Defendants assert they
are entitled to qualified immunity from Plaintiffs’
Eighth Amendment claim because they did not violate
clearly established law. Doc. 138-1 at 13; Doc. 140 at 21;
Doc. 177 at 6; Doc. 178 at 4. Defendants argue Plaintiffs’
state law negligence claims fail for a variety of pro
cedural and substantive reasons.9
III. Standard of Decision
A motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) is a challenge to the sufficiency of the
9 As discussed below, the Court will dismiss without leave to
amend Plaintiffs’ Eighth Amendment claim on the ground
Defendants are entitled to qualified immunity from it. As such,
the only jurisdictional basis for Plaintiffs’ negligence claim is
supplemental jurisdiction, which the Court declines to extend
over the claim. The Court therefore need not discuss the parties’
in-depth arguments concerning Plaintiffs’ negligence claim.
App.43a
allegations set forth in the complaint. A 12(b)(6)
dismissal is proper where there is either a “lack of a
cognizable legal theory” or “the absence of sufficient
facts alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in
the light most favorable to the party opposing the
motion, and resolves all doubts in the pleader’s favor.
Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th
Cir. 2008).
To survive a 12(b)(6) motion to dismiss, the
Plaintiffs must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 556). “Where a complaint
pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between
possibility and plausibility for entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a Plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more
than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will hot do.”
App.44a
Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). Thus, “bare assertions . .. amount[ing] to
nothing more than a ‘formulaic recitation of the
elements’... are not entitled to be assumed true.”
Iqbal, 556 U.S. at 681. In practice, “a complaint
... must contain either direct or inferential allegations
respecting all the material elements necessary to
sustain recovery under some viable legal theory.”
Twombly, 550 U.S. at 562. To the extent that the
pleadings can be cured by the allegation of additional
facts, the Plaintiffs should be afforded leave to amend.
Cook, Perkiss and Liehe, Inc. v. N Cal. Collection
Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations
omitted).
IV. Discussion
A. The Eighth Amendment
Under the Eighth Amendment, “prison officials
are ... prohibited from being deliberately indifferent
to policies and practices that expose inmates to a
substantial risk of serious harm.” Parsons v. Ryan,
754 F.3d 657, 677 (9th Cir. 2014); see also Helling v.
McKinney, 509 U.S. 25, 35 (1993); Farmer v. Brennan,
511 U.S. 825, 847 (1994) (prison official violates
Eighth Amendment if he or she knows of a substantial
risk of serious harm to an inmate and fails to take
reasonable measures to avoid the harm). “Deliberate
indifference occurs when ‘[an] official acted or failed to
act despite his knowledge of a substantial risk of
serious harm.’” Solis v. Cnty. ofLos Angeles, 514 F.3d
946, 957 (9th Cir. 2008) (emphasis added) (quoting
Farmer, 511 U.S. at 841). Thus, a prisoner may state
“a cause of action under the Eighth Amendment by
alleging that [prison officials] have, with deliberate
App.45a
indifference, exposed him to [environmental conditions]
that pose an unreasonable risk of serious damage to
his future health,” Helling, 509 U.S. at 35.
“The second step, showing ‘deliberate indifference,’
involves a two part inquiry.” Thomas v. Ponder, 611
F.3d 1144, 1150 (9th Cir. 2010). “First, the inmate
must show that the prison officials were aware of a
‘substantial risk of serious harm’ to an inmate’s health
or safety.” Id. (quoting Farmer, 511 U.S. at 837). “This
part of [the] inquiry may be satisfied if the inmate
shows that the risk posed by the deprivation is obvious.”
Id. (citation omitted). “Second, the inmate must show
that the prison officials had no ‘reasonable’ justif
ication for the deprivation, in spite of that risk.” Id.
(citing Farmer, 511 U.S. at 844 (“[P]rison officials who
actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded
reasonably.”) (footnote omitted).
B. Qualified Immunity
“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a reasonable person would have known.’” Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)
(citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
“Qualified immunity shields an officer from liability
even if his or her action resulted from a mistake of law,
a mistake of fact, or a mistake based on mixed
questions of law and fact.” Id. (citation and quotation
marks omitted). “The purpose of qualified immunity is
to strike a balance between the competing need to hold
public officials accountable when they exercise power
App.46a
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they per
form their duties reasonably.” Id. (citation and quotation
marks omitted). Accordingly, qualified immunity “pro
tects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. al-Kidd, 563
U.S. 731, S.Ct. 2074, 2085 (2011) (citation omitted).
The party asserting the defense of qualified immunity
bears the burden of proof. See Gomez v. Toledo, 446 U.S.
635, 639-41 (1980).
In determining whether an official is entitled to
qualified immunity, courts employ a two-pronged
inquiry. Id. The facts are construed in the light most
favorable to the plaintiff. Estate of Ford v. Ramirez—
Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). Courts
are “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.”
Lai v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).
First, a court must determine whether the official
violated the plaintiffs constitutional right. Id. If a
constitutional violation is present, a court must then
determine whether the constitutional right was “clearly
established in light of the specific context of the case”
at the time of the events in question. Id. (citation and
quotation marks omitted); see also Saucier v. Katz,
533 U.S. 194, 201 (2001).
“For the second step in the qualified immunity
analysis—whether the constitutional right was clearly
established at the time of the conduct—the critical
question is whether the contours of the right were
‘sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that
App.47a
right.’” Mattos, 661 F.3d at 442 (quoting al-Kidd, 131
S.Ct. at 2083). “This inquiry ... must be undertaken
in light of the specific context of the case, not as a
broad general proposition” Saucier, 533 U.S. at 202.
“[W]here there is no case directly on point, ‘existing
precedent must have placed the statutory or constitu
tional question beyond debate.’” C.B. v. City ofSonora,
769 F.3d 1005, 1026 (9th Cir. 2014) (citing al-Kidd,
131 S.Ct. at 2083).
However, “closely analogous preexisting case law
is not required to show that a right was clearly
established.” Clairmont v. Sound Mental Health, 632
F.3d 1091, 1109 (9th Cir. 2011) (internal citations and
quotations omitted). While “there must be some
parallel or comparable factual pattern[,] ... the facts
of already decided cases do not have to match precisely
the facts with which [the government employer] is
confronted.” Id. Rather, the preexisting case law must
have provided fair warning that the complained-of
conduct was unlawful. Flores v. Morgan Hill Unified
Sch. Dist, 324 F.3d 1130, 1136-37 (9th Cir. 2003)
(citation omitted). “Ultimately, the ‘clearly established’
prong of the qualified immunity test shows deference
towards the actions of government officials, but does
not shield individuals who are ‘plainly incompetent or
those who knowingly violate the law.’” Reza v. Pierce,
., 2015 WL 4899122, at *7 (9th Cir. Aug.
F.3d
18, 2015) (citation omitted).
The Court recently found that some, but not all of
the same Defendants were entitled to qualified immu
nity from materially identical claims brought against
F.
them. See Jackson v. Brown, No. 13-cv-1055,
., 2015 WL 5522088 (E.D. Cal. Sept. 17,
Supp. 3d
2015), amendedby201b WL 5732826 (E.D. Cal. Sept.
App.48a
28,2015). The Court finds that the logic and conclusions
of Jackson’s qualified immunity analysis likewise
apply to all Defendants here. Defendants are entitled
to qualified immunity from Plaintiffs’ Eighth Amend
ment claim because the applicable law remains unset
tled and unclear.
C. Analysis
a. The Constitutional Right at Issue
Although it is beyond dispute that Plaintiffs have
a constitutional right to safe conditions of ^confinement, see generally Farmer, 511 U.S. 825, the level of
detail at which a court must define the contours of that
right in the context of analyzing qualified immunity is
less clear. As in Jackson, the parties here offer various
iterations of the constitutional right at issue with
differing levels of specificity, and the Court can
conceive of other iterations. See, e.g., Doc. 175 at 1415; Doc. 178 at 5.
Ultimately, however, these varying iterations of
the constitutional right at issue in this case are
distinctions without any practical difference. The
Court need not determine the full contours of the
Eighth Amendment in the Valley Fever context, 10 what
10 The Supreme Court has cautioned that following a “rigid”
qualified immunity analysis “comes with a price”: the “expenditure
of scare judicial resources on difficult questions that have no
effect on the outcome of the case.” Pearson v. Callahan, 555 U.S.
223, 236-37 (2009). This is particularly true where “[a] decision
on the underlying constitutional question in a § 1983 damages
action. . . may have scant value when it appears that the
question will soon be decided by a higher court.” Id. at 237-28. As
it stands, it appears that the Ninth Circuit soon will have the
opportunity to resolve the issue of whether Plaintiffs’ Eighth
App.49a
the constitutional right at issue is in these cases, or
whether Plaintiffs have pled a violation of their
Eighth Amendment rights sufficiently. H As discussed
below, under any definition of the constitutional right
at issue in this case, and even assuming Plaintiffs have
pled an Eighth Amendment claim, the substantial and
unsettled case law concerning Valley Fever at the
district court level establishes that Defendants are
entitled to qualified immunity from Plaintiffs’ Eighth
Amendment claim. This is a case where the Court can
“rather quickly and easily decide that there was no
violation of clearly established law before turning to
the more difficult question whether the relevant facts
make out a constitutional question at all.” Pearson,
555 U.S. at 239. Accordingly, the Court skips the first
step of the Saucier qualified immunity analysis.
Amendment rights were violated. See Hines v. Youssef, No. 1:13cv-357 AWI JLT, 2015 WL 2385095 (E.D. Cal. May 18, 2015)
(granting the defendants qualified immunity from the plaintiffs
claim that they violated his Eighth Amendment rights by placing
him in a Valley Fever-endemic prison, where he contracted the
disease), appeal docketed, No. 15-16145 (9th Cir. June 8, 2015).
11 The Court acknowledges that it found Plaintiffs in the Beagle
member cases had stated an Eighth Amendment claim. See
2014 WL 9866913, at
Beagle v. Schwarzenegger,__ F.3d
*10 (E.D. Cal. 2014). With regard to the Beagle Plaintiffs only,
the Court is bound by that conclusion here under the law of the
case. See United States v. Lumni Nation, 763 F.3d 1180, 1185
(9th Cir. 2014). Nonetheless, even assuming all Plaintiffs have
satisfied the first prong of the Saucier qualified immunity
analysis, Defendants are still entitled to qualified immunity from
all Plaintiffs’ Eighth Amendment claims under the second prong
of Sa ucier.
App.50a
b. Defendants Did Not Violate Clearly
Established Law
The second prong of the qualified immunity
analysis requires the Court to determine whether the
allegedly violated constitutional right was clearly
established at the time that Defendants allegedly
violated that right. Mattos, 661 F.3d at 442. Defendants
must have had “‘fair and clear warning’ that their
conduct [was] unlawful.” Devereaux v. Abbey, 263 F.3d
1070,1075 (9th Cir. 2001) (citations omitted). In other
words, the question is whether Defendants could have
“reasonably but erroneously believed” that their conduct
did not violate Plaintiffs’ rights. Id. at 1074 (citing
Saucier, 533 U.S. at 195).
Plaintiffs’ alleged injuries—exposure to and contrac
tion of Valley Fever—occurred at different times. See,
e.g., CAC at Tft 233-38 (Plaintiff Aubrey alleging he
was transferred to PVSP in January 2009, but does not
allege when he contracted Valley Fever); id. at Iff 254,
258 (Plaintiff Baker alleging he was transferred to
ASP in July 2011 and contracted Valley Fever in “late
2011”); id. at Tflf 779-80 (Plaintiff Franklin alleging he
was transferred to PVSP in January 2009 and diagnosed
with Valley Fever in August 2010); id. at 1 1079
(Plaintiff Lavea alleging he was transferred to PVSP
in 2008); id. at K 1807 (Plaintiff Torres-Enos alleging
he was transferred to PVSP in 2006); id. at Tf 576
(Plaintiff Corning alleging he was transferred to ASP in
2007). It is indeterminable when some Plaintiffs’ injuries
occurred because they do not allege when they first
were housed in a San Joaquin Valley correctional
facility, though it appears the earliest any Plaintiff
was housed in one of the subject facilities was at some
App.51a
point in 2006. See, e.g., id. at ft 989 (Plaintiff K.
Jackson), 1807 (Plaintiff Torres-Enos).
Nonetheless, the Court’s conclusion below that
Defendants are entitled to qualified immunity remains
the same regardless of the time at which Plaintiffs’
injuries occurred. Regardless of whether the Court
looked only to the state of the law as it existed in 2006,
or as it exists today, the Court would still conclude
that the right at issue was not clearly established. See
Jones v. Hartley, No. l:13-cv-1590-AWl-GSA-PC, 2015
WL 1276708, at *2-3 (E.D. Cal. Mar. 19, 2015) (“Courts
have yet to find that exposure to valley fever spores
presents an excessive risk to inmate health.” (collecting
cases)); Smith, 2015 WL 3953367, at *3 (recognizing
contrary conclusions in Valley Fever cases within this
district). Thus, even if the Court looked at the state of
the law at the earliest possible time {i.e., 2006) or at
the latest possible time (i.e., today), the Court’s
conclusion that Defendants are entitled to qualified
immunity would be the same. See Reza, 2015 WL
4899122, at *7 (assessing state of law on date on which
the plaintiff allegedly was arrested unlawfully).
This is so because the circumstances in which an
inmate’s exposure to cocci while incarcerated may
support an Eighth Amendment claim are not clear. As
the F&Rs correctly recognized, no binding Supreme
Court or Ninth Circuit precedent squarely addresses
the issue. Doc. 164 at 18-19. The Ninth Circuit has
touched on the issue only in brief, undeveloped, and
unpublished memorandum decisions.
For instance, in Smith v. Schwarzenegger, No.
CV 1-07-1547-SRB, 2009 WL 900654, at *1 (E.D. Cal.
Mar. 31, 2009), rev’d, 393 Fed. App’x 518 (9th Cir.
2010), the plaintiff brought, among other claims, an
App.52a
Eighth Amendment claim asserting his right to be free
from cruel and unusual punishment. In that claim, the
plaintiff alleged that he was held in KVSP, which is
“located in the San Joaquin Valley where [he is]
subjected to the risk of contracting valley fever, in
violation of the Eighth Amendment.” Smith, 2009 WL
900654, at *1. The plaintiff alleged that his being
housing at KVSP posed an unconstitutional threat to
his health and safety. Smith, No. CV 1-7-1547-SRB,
Doc. 21 at 7 (“Myself and other inmates ... in California
State Prisoners located in the San Joaquin Valley. ..
are being forcibly subjected to contracting .. . Valley
Fever”). The plaintiff also alleged that AfricanAmericans, such as himself, and other ethnic groups
“are extremely susceptible to contracting Valley Fever.”
Id.
Notably, the plaintiff did not allege that he had
contracted Valley Fever; he only alleged that he “may
have contracted Valley Fever but will not know for”
many years if he contracted the disease. Id. (emphasis
added). The plaintiff further alleged that the defendants
“have failed to act to remove [him] . .. out of the
endemic area where ... inmates have been infected by
Valley Fever and have [died] from Valley Fever.” Id.
at 10. Thus, the plaintiff claimed that his Eighth
Amendment rights had been violated “not only by
possible present harm but by possible future harm,
arising out of exposure to San Joaquin Valley Fever,”
and the defendants’ failure to remove inmates from
prisons located in areas endemic to Valley Fever. Id.
at 10-15.
Visiting District Judge Bolton found that:
App.53a
Plaintiff has failed to show that any of the
named Defendants were deliberately indiffer
ent to a serious risk of harm to Plaintiffs
health. Plaintiff does not allege that Defen
dants were aware of a particular threat to
Plaintiffs health or that Plaintiff has been
harmed as the result of Defendants’ actions
or failure to act. Plaintiff alleges only that
Defendants are aware of the general pre
sence of valley fever in the areas in which
Plaintiff is housed and that Plaintiff may
contract valley fever. This is insufficient to
establish an Eighth Amendment violation.
Smith, 2009 WL 900654, at *2. Accordingly, the claim
was dismissed with prejudice. Id.
On appeal, the Ninth Circuit reversed in an
unpublished, one-page memorandum decision. Smith v.
Schwarzenegger, 393 Fed. App’x 518, 519 (9th Cir.
2010). The Ninth Circuit observed that the district
court dismissed the claim “because it determined that
[the plaintiff] failed to allege facts demonstrating that
the defendants were deliberately indifferent to a
serious risk to his health.” Id. The court held that “[i]n
dismissing with prejudice, the district court erred
because it is not beyond doubt that [the plaintiff] could
prove no set of facts in support of his claims that would
entitled Ls/d him to relief.” Id. (citing Helling, 509 U.S.
at 25 (a prisoner “states a cause of action under the
Eighth Amendment by alleging that [defendants] have,
with deliberate indifference, exposed him to levels of
[environmental tobacco smoke] that pose an unrea
sonable risk of serious damage to his future health”)).
The Ninth Circuit therefore vacated and remanded
the case “with instructions to allow [the plaintiff] the
App.54a
opportunity to amend his complaint to allege facts
demonstrating that the defendants are aware of a
substantial risk to [his] health and have not taken
action to prevent or minimize that risk.” IdX2
12 On remand, the plaintiff filed a fourth amended complaint
against Cate, James Yates, the former warden of PVSP, Jeanne
Woodford, the former Secretary of CDCR, and “John Doe Appeals
Coordinator,” among other defendants. See Smith, No. l:07-cv1547-SRB, Doc. 65 at 1. Judge Bolton summarized the
allegations underlying that claim as follows:
Plaintiff alleges that his Eighth Amendment rights
were violated when he was housed in an area with a
known valley fever epidemic. Plaintiff alleges that he
is particularly susceptible to valley fever because he
is African-American and has tuberculosis and
hepatitis C. Plaintiff further states that he was recently
informed that he has now contracted valley fever and
that because of his hepatitis C, he cannot take the
valley fever medication. Plaintiff claims that Defendants
were aware of the severe risk to his health that results
from housing him in this area, but failed to transfer
him to another facility. ...
Plaintiff claims that Defendants Cate and Woodford
violated his Eighth Amendment rights when they
failed to develop policies for moving high risk inmates,
. such as Plaintiff, out of prisons located in areas known
to have high incidences of valley fever. Plaintiff
further claims that while housed at the Pleasant
Valley State Prison, he filed a grievance regarding his
susceptibility to valley fever and requesting a transfer,
but that Defendant Appeals Coordinator was
deliberately indifferent to a risk to Plaintiffs health
when, he informed Plaintiff that he would not process
the grievance unless Plaintiff had already contracted
valley fever. Plaintiff claims that Defendant Appeals
Coordinator’s refusal to process the grievance
hindered his ability to grieve the issue at any of his
later housing assignments. Finally, Plaintiff claims
App.55a
Similarly, the Ninth Circuit reversed this Court
with a one-page decision in Johnson v. Pleasant Valley
State Prison, 505 Fed. App’x 631 (9th Cir. 2013). In
Johnson, the plaintiff brought one claim under § 1983
in which he alleged that his exposure to and contraction
of Valley Fever while at PVSP violated his Eighth
Amendment rights. Johnson, 2012 WL 1297380, at *1.
The Magistrate Judge issued F&Rs screening the
complaint and summarized the plaintiff s allegations
in part, as follows:
Plaintiff... is incarcerated at [PVSP], and
brings this action against Defendants . ..
alleging deliberate indifference in violation
of the Eighth Amendment. Shortly after
being transferred to PVSP on August 20,
2010, Plaintiff began experiencing flu-like
symptoms and was eventually diagnosed
with Valley Fever. Plaintiff alleges that
Defendants were aware through CDCR memo
randums that PVSP and seven other facilities
were constructed in “hyperendemic” areas.
Defendants allegedly have ignored a threat
to Plaintiff, and every other prisoner who is
housed at PVSP, by placing them where they
are exposed to “environmental hazards” in
that Defendant Yates was aware of the risk of
Plaintiff contracting valley fever, but did not transfer
him, and that Defendant Yates developed a policy
requiring Plaintiff to “contract valley fever before he
can receive relief from exposure to valley fever.”
Id. at 3,6. Judge Bolton found that these allegations, “Mery liberally
construed ... adequately stated Eighth Amendment claims against
Defendants Cate, Woodford, Yates, and John Doe Appeals
Coordinator.” Id. at 6.
App.56a
violation of the Eighth Amendment’s prohib
ition against cruel and unusual punishment.
Id. The Magistrate Judge found that the plaintiff
failed to state a claim under the Eighth Amendment,
reasoning:
To state a claim that the presence or
prevalence of Valley Fever at PVSP consti
tuted a danger to Plaintiffs health, Plaintiff
must allege facts sufficient to support a claim
that prison officials knew of and disregarded
a substantial risk of serious harm to him.
... Even if the risk of contracting Valley
Fever is higher at PVSP than in other areas
of the state, the Court declines to find that,
due to its location, the prison itself constitutes
a substantial risk of harm to inmates ...
There is no support for such a sweeping
proposition, and the Court finds that Plain
tiffs Eighth Amendment claim arising from
the mere fact that he is being housed at
PVSP is not cognizable under section 1983.
Id. at *3 (citations omitted).
Plaintiff filed objections to the F&Rs. Id. at Doc.
14. Citing Farmer, 511 U.S. 825, and Helling, 509 U.S.
25, the plaintiff argued that the defendants exhibited
deliberate indifference to him by placing him at an
excessive risk of contracting Valley Fever while incar
cerated at PVSP. Id. at 2-3. This Court adopted the
Magistrate Judge’s F&Rs in full and dismissed the
plaintiffs sole Eighth Amendment claim. See No. 1:11CV-191-LJO-BAM PC, Johnson v. Pleasant Valley State
Prison, Doc. 15.
The Ninth Circuit reversed, holding that
App.57a
dismissal of [the plaintiffs] action was
improper at this early stage because [the
plaintiff] alleged that prison officials were
aware that inmates’ exposure to valley fever
posed a significant threat to inmate safety
yet failed to take reasonable measures to
avoid that threat... . Farmer v. Brennan,
511 U.S. 825, 847 (1994) (a prison official
violates the Eighth Amendment prohibition
against inhumane conditions of confinement
if he or she knows of a substantial risk of
serious harm to an inmate and fails to take
reasonable measures to avoid the harm).
Johnson, 505 Fed. App’x at 632.
In Johnson, the Ninth Circuit “express [ed] no
opinion as to the sufficiency or merit of [the plaintiffs]
allegations.” Id. And, as the F&Rs observed, the Ninth
Circuit in Smith provided no “discussion of what would
be required to state a claim under the Eighth Amend
ment.” Doc. 164 at 36 n.5; Smith, 393 Fed. App’x at 519.
Accordingly, the Court finds that Johnson and Smith
do not clearly establish the right at issue in this case
and did not give Defendants notice that they may have
violated Plaintiffs’ Eighth Amendment rights, particu
larly given that it is a “rare instance in which, absent
any published opinions on point or overwhelming
obviousness of illegality, [a court] can conclude that
the law was clearly established on the basis of unpub
lished decisions only.” Sorrels v. McKee, 290 F.3d 965,
971 (9th Cir. 2002).13 In short, the Ninth Circuit’s
13 This conclusion is further reinforced by the Ninth Circuit’s
decision in Holley v. Scott, 576 Fed. App’x 670 (9th Cir. 2014),
another one-page memorandum decision addressing an Eighth
Amendment claim premised on the plaintiff-inmate’s exposure to
App.58a
Valley Fever spores while incarcerated. In that case, the
Magistrate Judge screened the plaintiffs second amended
complaint, which alleged an Eighth Amendment claim based on
his exposure to Valley Fever spores while incarcerated at PVSP,
and dismissed the claim without leave to amend. Holley v. Scott,
No. l:12-cv-1090-MJS (PC), 2013 WL 3992129, at *5 (E.D. Cal.
Aug. 1, 2013). The plaintiff alleged that he was an AfricanAmerican at medically high risk of contracting Valley Fever
because of his race and health status. Id. at *1. The Magistrate
Judge found that the plaintiff failed to allege facts demonstrating
that the defendants acted with deliberate indifference because
the plaintiff did not allege that the defendants were aware of the
risks posed by Valley Fever spores at PVSP. Id. at *5. On appeal,
the Ninth Circuit affirmed. Holley, 576 Fed. App’x at. 670 (citing
Farmer, 511 U.S. at 837). Although Smith and Johnson involved
materially similar allegations, the Ninth Circuit’s reversals in
those cases perhaps can be explained by the fact that they
involved original complaints dismissed without leave to amend,
whereas Holley involved a second amended complaint filed after
the Magistrate Judge had “twice previously instructed Plaintiff
on the legal standard and given him opportunity to allege facts
which meet it,” yet the second amended complaint failed to do so.
Holley, 2013 WL 3992129, at *5. In addition, the plaintiff in
Holley had satisfied the first, objective prong of his Eighth
Amendment claim, but had failed on the second, subjective prong
of the claim in that he failed to allege facts showing that the
defendants knew of the alleged risk of Valley Fever to which he
was exposed. See id. at *4-5; Holley, Fed. App’x at 670 (“The
district court properly dismissed Holley’s action because Holley
failed to allege facts showing that defendants were deliberately
indifferent to a risk of Holley contracting Valley Fever by housing
him at Pleasant Valley State Prison.”) (citation omitted); but see
Sullivan v. Kramer, 609 Fed. App’x 435, 436 (9th Cir. 2015)
(reversing dismissal of civil detainee’s safe conditions claim in
which he alleged the defendant “knew of the life-threatening
dangers of valley fever . .. but failed to take any preventative
measures to protect [him]”); Samuels v. Ahlin, 585 Fed. App’x
636, 637 (9th Cir. 2014) (reversing dismissal of civil detainee’s ,
safe conditions claim in which he alleged defendants “knew of the
life-threatening risk of building Coalinga State Hospital in a
App.59a
Valley Fevers decisions could not have put Defendants
on notice that their conduct was unlawful.
In the absence of controlling authority, a defendant
nonetheless may not be entitled to qualified immunity
if the illegality of the defendant’s conduct was over
whelmingly obvious, id., or “a consensus of cases of
persuasive authority” would have put the defendant on
notice that his/her conduct was unlawful. Wilson v.
Layne, 526 U.S. 603, 617 (1999). The F&Rs contain a
thorough review of Valley Fever cases in this district.
See F&Rs at 28-31. Simply put, those cases show that
there has been longstanding disagreement among the
judges of this district as to whether and under what
circumstances inmates housed at prisons in the San
Joaquin Valley, where Valley Fever is endemic, may
state an Eighth Amendment claim for being exposed
to Valley Fever spores while incarcerated. See id.
This disagreement has led to diametrically opposed
conclusions at times. Critically, judges have disagreed
as to whether allegations that an inmate’s ethnicity
increases the risk of contracting Valley Fever and
developing disseminating Valley Fever states an Eighth
Amendment claim. 14 Judges also have disagreed as to
highly endemic area for valley fever, but nonetheless approved or
failed to stop the facility’s construction”).
14 Compare, e.g., Smith v. Brown, No. l:12-cv-238-AWI-JLT
(PC), 2012 WL 1574651, at *3-4 (E.D. Cal. May 3, 2012) (holding
that African-American plaintiffs allegations that (l) he was
exposed to Valley Fever while incarcerated at PVSP, a “hyperen
demic area” experiencing an “outbreak of illness”; (2) AfricanAmericans are more susceptible to Valley Fever; and (3) the
defendants knew of Valley Fever risks but failed to act were
insufficient to state Eighth Amendment claim because the defen
dants could not “be held liable for housing Plaintiff in an area
where there is a potential to be exposed to Valley Fever spores”);
App.60a
whether an inmate’s allegations that medical conditions
increase the risk of contracting Valley Fever and
developing disseminated Valley Fever states an Eighth
Amendment claim. 15 Notably, Plaintiffs acknowledge
Clark v. Igbinosa, No. l:10-cv-1336-DLB PC, 2011 WL 1043868,
at *2 (E.D. Cal. Mar. 21, 2011) (holding that the AfricanAmerican plaintiffs allegations that (l) African-Americans are
the highest risk group for disseminated Valley Fever and (2)
being housed at PVSP did not state Eighth Amendment claim
because “[gloing to an area which contains valley fever and
contracting valley fever are not sufficient to state an Eighth
Amendment claim”); James v. Yates, No. l:08-cv-1706-DLB PC,
2010 WL 2465407, at *3-4 (E.D. Cal. June 15, 2010) (same);
Moreno v. Yates, No. l:07-cv-1404-DGC, Doc. 1 at 9-10, 2010 WL
1223131, at *2 (E.D. Cal. Mar. 24, 2010) (granting summary
judgment against plaintiff-inmate who contracted Valley Fever
at PVSP and who alleged certain racial groups are more susceptible
to developing disseminating Valley Fever because “society
plainly tolerates the health risks” posed by Valley Fever at
PVSP); King v. Avenal State Prison, No. l:07-cv-1283-AWI-GSA
(PC), 2009 WL 546212, at *4 (E.D. Cal. Mar. 4, 2009) (“[N]o
courts have held that exposure to Valley Fever spores presents
an excessive risk to inmate health”) with, e.g., Chaney v. Beard,
No. l:14-cv-369-MJS, 2014 WL 2957469, at *3 (E.D. Cal. June
30, 2014) (“Plaintiff alleges that he is an African American male
and is therefore at an increased risk of harm from Valley Fever.
This is sufficient to satisfy the first element of Plaintiffs Eighth
Amendment claim.”).
15 Compare, e.g., Moreno, 2010 WL 1223131, at *2 (granting
summary judgment against plaintiff-inmate because “society
plainly tolerates the health risks” posed by Valley Fever at
PVSP); Gilbert v. Yates, No. l:09-cv-2050-AWI-DLB, 2010 WL
5113116, at *1, 3 (E.D. Cal. Dec. 9, 2010) (plaintiff with asthma,
pulmonary conditions, and hepatitis C who contracted Valley
Fever while incarcerated at PVSP did not state Eighth Amend
ment medical needs claim because even “[alssuming that the risk
of contracting Valley Fever is higher at PVSP than in other areas
of the state and that the disease is fatal in some cases, the Court
declines to find that the prison itself, due to its location, constitutes
App.61a
a substantial risk of harm to inmates”), affd, 479 Fed. App’x 93
(9th Cir. 2012); Schroeder v. Yates, No. l:10-cv-433-OWW-GSA
PC, 2011 WL 23094, at *1 (E.D. Cal. Jan. 4, 2011) (inmate with
emphysema and chronic obstructive pulmonary disease could not
state claim for exposure to Valley Fever spores while incarcerated
at PVSP); Ayala v. Yates, No. l:10-cv-50-MJS (PC), 2011 WL
4527464, at *3 (E.D. Cal. Sept. 28, 2011) (“Exposure to [Valley
Fever] at PVSP is not in and of itself an excessive risk to inmate
health; Defendants had no duty to take steps to reduce the risk.”);
Miller v. Brown, No. l:12-cv-1589-LJO-BAM PC, 2013 WL 6712575,
at *6 (E.D. Cal. Dec. 18, 2013) (dismissing inmate’s Eighth Amend
ment claim, in part, because he did not “indicate if he in fact
contracted Valley Fever”) with, e.g., Whitney v. Walker, No. 1:10cv-1963 DLB PC, 2012 WL 893783, at *4 (E.D. Cal. Mar. 15, 2012)
(plaintiffs allegation that his immune system was compromised
by cancer stated Eighth Amendment claim for contraction of
Valley Fever while incarcerated at ASP); Owens v. Trimble, No.
1:11-cv-1540-LJO-MJS (PC), 2012 WL 1910102, at *2 (E.D. Cal.
May 25, 2012) (“Plaintiff has alleged that his asthma increases
the risk of infection [of Valley Fever] and thus satisfies the first
element of his Eighth Amendment claim.”); Sparkman v. Calif.
Dep’t of Corrections and Rehab., No. l:12-cv-1444-AWI-MJS
(PC), 2013 WL 1326218, at *3 (E.D. Cal. Mar. 29, 2013)
(“Exposure to Valley Fever with such a preexisting lung condition
is also a serious medical condition sufficient to satisfy the first
prong of an Eighth Amendment claim based on Valley Fever
exposure.”) (citations omitted); Wood v. Brown, No. l:ll-cv-1846RRB, 2013 WL 1759099, at *2 (E.D. Cal. Apr. 24, 2013) (holding
that inmate could potentially state Eighth Amendment claim for
being transferred to ASP where he contracted Valley Fever if
officials responsible for transfer were properly named); see also
Beagle, 2014 WL 9866913, at *10 (disagreeing with findings and
recommendations and holding that inmates “need not demonstrate
that they are at a higher risk of contracting Valley Fever or a
more severe form of the disease to state an Eighth Amendment
claim”); see also Borquez v. Arpaio, No. CV 07-226-PHX-DGC
(JCG), 2007 WL 625925, at *3 (D. Ariz. Feb. 26, 2007) (holding
that plaintiff-inmate’s allegation “that he has been exposed to
asbestos and valley fever” while incarcerated failed to state
Eighth Amendment claim).
App.62a
both of these instances of disagreement. 5eeDoc. 175
at 28 (arguing that courts in this district are “nearly
uniform” in their Valley Fever decisions and “[m\ost
courts” have found that a plaintiffs heightened suscep
tibility to Valley Fever satisfies Farmers objective
component (emphases added)).
The Court acknowledges that not all Valley Fever
cases concern the same factual allegations or the same
disposition for the same reasons. Unlike Plaintiffs here,
some plaintiffs in Valley Fever cases have simply
alleged their constitutional rights were violated because
they contracted Valley Fever while incarcerated. See,
e.g., King, 2009 WL 546212, at *4 (“[T]o the extent
that Plaintiff is attempting to pursue an Eighth
Amendment claim for the mere fact that he was
confined in a location where Valley Fever spores
existed which caused him to contract Valley Fever, he
is advised that no courts have held that exposure to
Valley Fever spores presents an excessive risk to
inmate health”). Other cases have involved inmates
who, unlike some of the Plaintiffs, had no increased
risk factors for contracting Valley Fever or disseminated
Valley Fever. See, e.g, Ayala, 2011 WL 4527464, at
*1; see also Gaona v. Yates, No. l:09-cv-999-SKO PC,
2010 WL 2843163, at *3 (E.D. Cal. July 19, 2010)
(finding plaintiff could not state Eighth Amendment
claim because he only exhibited “flu-like symptoms”
when he contracted Valley Fever while incarcerated
at PVSP). And in some cases, the plaintiff did not
allege the defendant’s (or defendants’) acts or omissions
caused the plaintiff to be exposed to a substantial risk
of Valley Fever. See, e.g., Tholmerv. Yates, No. l:06-cv1403-LJO-GSA, 2009 WL 174162, at *3 n.3 (E.D. Cal.
Jan. 26, 2009) (“Plaintiff does not allege that the acts
App.63a
or omissions of Defendants have caused an excessively
high risk of contracting valley fever at PVSP.”).
Some cases, however, involved allegations that
are materially identical to Plaintiffs’ allegations. In
Moreno, for instance, the plaintiff contracted Valley
Fever in 2006 while housed at PVSP in. 07-cv-1404DGC, Doc. 1 at 7. The plaintiff alleged the defendants
knew that (l) PVSP was in a “hyperendemic” location;
(2) “[p]eople with weakened immune systems and of
certain racial groups are susceptible [to] developing
. . . disseminated valley fever”; (3) “the infection rate
among prisoners is 38 times greater than for residents
of Coalinga and 600 times greater than for residents
of Fresno county”; (4) that there was “a high prob
ability” that plaintiff would be infected with Valley
Fever; and (5) the defendants had not “done anything
to protect [his] health and personal safety.” Id. at 718. The court granted the defendants’ motion for
summary judgment, reasoning that “[b]y placing a
prison and other extensive facilities in the PVSP
location, attended by prison employees, officials, and
support personnel, as well as inmates, society plainly
tolerates the health risks of that location.” Moreno,
2010 WL 1223131, at *2.
In Jones v. Igbinosa, the plaintiff, who contracted
Valley Fever while incarcerated at PVPS, alleged that
PVSP “is [in] an epidemic area and that Blacks AfroAmericans and Filipinos are at greater risk of complica
tions from [Valley Fever].” No. 08-cv-163-LJO-SKO
PC, 2010 WL 2838617, at *2 (E.D. Cal. July 19, 2010),
affd, 467 Fed. App’x 604 (9th Cir. 2012). The court
dismissed the complaint based on, among other things,
a finding that “the risk posed by valley fever was [not]
‘sufficiently serious’” because the plaintiff did not
App.64a
allege that “he suffered any serious life threatening
complications from the disease,” and alleged that “‘[i]n
most cases, the infection .. . is usually handled by the
body without permanent damages.” Id. at *3.
The plaintiffs allegations in Ayala were largely
the same as those in Jones. See 2011 WL 4527464, at
*1. Although Ayala did not allege that certain indiv
iduals are more susceptible to Valley Fever, he alleged
that PVSP, where he was housed, is “hyper-endemic
for Valley Fever infection and has dramatically higher
rates of infection than other penal institutions,” yet the
defendants “did not act to mitigate the risk.” Id. The
court dismissed the plaintiffs Eighth Amendment claim
without leave to amend on the ground that “Plaintiff s
claim that the Defendants are liable because they
were aware of the risk and did not act to mitigate the
likelihood of infection does not state an actionable
claim.” Id. at *3. The court further held that “[e]xposure
to the disease at PVSP is not in and of itself an
excessive risk to inmate health; Defendants had no
duty to take steps to reduce the risk.” Id. The court
therefore concluded that the plaintiff “cannot state a
cognizable claim based on the fact that he was exposed
to Valley Fever at PVSP” because “[cllaims based on
Valley Fever exposure and contraction fail to satisfy
the first prong of the Eighth Amendment analysis, i.e.,
that the deprivation is sufficiently serious.” Id.
In Smith v. Brown, the plaintiff, who contracted
Valley Fever in 2009 while incarcerated at PVSP,
alleged as follows:
Plaintiff contends that “black inmates in
general are highly susceptible to Valley
Fever.” He also claims that each of the
defendants was aware that Plaintiff was
App.65a
being sent to a “hyperendemic” area institu
tion, but refused to warn him of such a risk.
Plaintiff alleges that Defendants failed to
follow directions set forth in a November 20,
2007 Memorandum regarding “Exclusion of
Inmate—Patients Susceptible to Coccidioido
mycosis from Highest Risk Area Institutions”
that would have prevent him from acquiring
Valley Fever. Plaintiff claims Defendants’
actions and failures to act violated the
Eighth Amendment.
2012 WL 1574651, at *3. Observing that “[c]ourts have
found that claims like Plaintiff s which allege Eighth
Amendment violations for contracting Valley Fever
are insufficient to establish an Eighth Amendment
violation,” the court held “Defendants cannot, therefore,
be held liable for housing Plaintiff in an area where
there is a potential to be exposed to Valley Fever
spores.” Id. at *4.
In Cooper v. Igbinosa, the plaintiff, a diabetic
incarcerated at PVSP, failed to state an Eighth Amend
ment claim. 2012 WL 5186660, at *2 (E.D. Cal. Oct. 17,
2012). The plaintiff alleged:
From 2001 through 2005, soil at PVSP was
disturbed greatly for the construction of a
mental health hospital and a segregation
unit. Defendant Yates worked at PVSP
beginning in October 2003. He was aware of
the presence of valley fever in the area.
Defendants Yates and Igbinosa are respon
sible for all inmates’ health and safety.
During the construction, Defendants had
notice of an increase in valley fever cases
amongst the inmates at PVSP, from 80 in
App.66a
2003, 66 in 2004, 187 in 2005, and 1145 in
2006. Valley fever is a disease arising from
spores found near the surface of soil, or in the
air when the soil is disturbed. Defendants
did not take any corrective measures or give
fair notice regarding the outbreak of valley
fever from 2003 through 2006, such as
preventing or erecting barriers for blowing
dirt, educating inmates and staff, increasing
ground cover, advising inmates to stay
indoors, wet the ground, or give out masks.
Plaintiff is diabetic. In June or July of 2006,
Plaintiff became sick and went to the medical
on B-yard at PVSP..., Plaintiff was hospital
ized for weeks because of valley fever,
suffering chronic breathing problems, acute
coughing, severe weight loss, and chest and
heart problems. Plaintiff remained under
doctor care for valley fever through 2010.
The court dismissed the plaintiffs claim, finding
that the plaintiff had “not sufficiently alleged facts
which indicate that the harm Plaintiff risked was an
excessive risk of serious harm.” Id. at *2. Although the
plaintiff had “alleged facts which indicate that the
chance of contracting valley fever increased during the
construction period,” he had “not alleged facts which
indicate that this increase in risk was excessive.” Id.
at *2; see also Barnhardt v. Cate, No. l:10-cv-1351LJO-GBC (PC), 2011 WL 2446372, at *5 (E.D. Cal.
June 15, 2011) (allegation that diabetes made the plain
tiff more susceptible to contracting Valley Fever did
not support Eighth Amendment claim).
For similar reasons, the court dismissed without
leave to amend the plaintiffs Eighth Amendment claim
App.67a
in Harvey v. Gonzalez, No. CV 10-4803-VAP (SP), 2011
WL 4625710 (C.D. Cal. July 27, 2011), adopted in full,
2011 WL 4625700 (C.D. Cal. Oct. 5, 2011). The plaintiff
alleged his exposure to Valley Fever while incarcerated
at PVSP violated his Eighth Amendment rights. Id. at
*2. The plaintiff alleged that African-Americans are at
a “far greater risk of coming down with [Valley Fever]
based on their immune systems.” Id. at *1. The court
held that “[m]ere exposure to [cocci] is insufficient to
constitute an excessive risk of harm to [the plaintiffs]
health.” Id. at *3. Although the plaintiffs ethnicity
was unknown, the court held that, even if plaintiff
were able to allege that he was an African-American
and that the defendants knew African-Americans
were at higher risk of contracting Valley Fever, “that
still would be insufficient to state a claim that
defendants deliberately exposed [him] to an excessive
risk of harm by housing him at PVSP.” Id.
In Gilbert, the plaintiff, an inmate at PVSP who
alleged his asthma, pulmonary conditions, and hepatitis
C rendered him more vulnerable to Valley Fever, failed
to state a claim based on his exposure to and contraction
of Valley Fever while incarcerated at PVSP. 2010 WL
5113116, at *1, 3. The court reasoned that even
“[a]ssuming that the risk of contracting Valley Fever
is higher at PVSP than in other areas of the state and
that the disease is fatal in some cases, the Court
declines to find that the prison itself, due to its
location, constitutes a substantial risk of harm to
inmates.”16 Id. at *3.
16 The Court notes that the Ninth Circuit apparently rejected
this logic in Johnson, 505 Fed. App’x 631.
App.68a
Other judges, however, have found that “the first
prong of an Eighth Amendment claim is satisfied where
the plaintiff has identified a factor responsible for
either increasing the risk of contraction [of Valley
Fever] or the severity of infection.” Chaney v. Beard,
No. l:14-cv-369-MJS, 2014 WL 2957469, at *3 (E.D.
Cal. June 30, 2014). African-American ethnicity has
been accepted as an increased risk factor, as have
various medical conditions, particularly those that
affect an individual’s immune system. See id. (collecting
cases); see also Hunter v. Yates, No. l:07-cv-151-AWISMS-PC, 2009 WL 233791, at *3 (E.D. Cal. Jan. 30,
2009) (plaintiff alleging he “was exposed to a high risk
of contracting valley fever” stated claim “[u]nder
minimal federal notice pleading standards”); Thurston
v. Schwarzenegger, No. l:08-cv-342-AWI-SMS PC, 2008
WL 2020393, at *1 (E.D. Cal. May 9, 2008) (plaintiff
stated claim based on allegations that “his medical
condition puts him at risk for contracting Valley
Fever”). Some judges have found that a plaintiff need
not be at a heightened risk for contracting Valley
Fever or developing disseminated Valley Fever to
state an Eighth Amendment claim. See, e.g., Beagle,
2014 WL 9866913, at *10; Jackson v. Davey, No. 1:14cv-1311-LJO-MJS (PC), 2015 WL 3402992, at *5 (E.D.
Cal. May 27, 2015).
Given this obvious, legitimate, and reasonable
disagreement among judges, the Court finds that
Defendants are entitled to qualified immunity from
Plaintiffs’ Eighth Amendment claim,' regardless of
how its underlying constitutional right is defined.
Even assuming Defendants’ conduct was unlawful in
this case—an issue which the Court need not and does
, not decide—the disagreement among judges with regard
App.69a
to analogous Valley Fever cases brought by inmates in
San Joaquin Valley prisons establishes that the right
at issue here was not sufficiently clear such that
Defendants had “‘fair warning’ that their conduct was
unlawful.” Flores, 324 F.3d at 1137.17 “If judges thus
disagree on a constitutional question, it is unfair to
subject [public officials] to money damages for picking
the losing side of the controversy.” Wilson, 526 U,S. at
618; see also Bahrampour v. Lampert, 356 F.3d 969,
977 (9th Cir. 2004) (“The fact that there was a conflict
in the views of district court judges on the issue
demonstrates that the constitutionality of the regula
tions was not clearly established.”).
17 The Court recognizes that all of the cases discussed above
concerning the district courts’ disagreement on Valley Fever
issues postdate some of the Plaintiffs’ injuries, and a number of
those cases postdate the injuries of many Plaintiffs. But, in the
Court’s view, the fact that the law remains unclear today means
that it has never been clearly established. See Rish v. Johnson,
131 F.3d 1092, 1096 n.5 (4th Cir. 1997) (“The events underlying
the inmates’ claim occurred over the period of 1988 to 1992.
During this period, Eighth Amendment jurisprudence was
evolving. However, for ease of discussion, we consider the state
of law at the end of the period at issue, reasoning that if the law
was not so clearly established in 1992 that the prison officials
were not entitled to qualified immunity, it could not have been so
earlier.”). Although “the fact that a single judge, or even a group
of judges, disagrees about the contours of a right does not
automatically render the law unclear,” Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 378 (2009), given the extensive
and substantial litigation concerning Valley Fever that has
occurred at the district court level, to find that Defendants are
not entitled to qualified immunity would require the Court to
conclude that a number of judges were unaware of or repeatedly
disregarded clearly established law for years. The Court declines
to entertain that conclusion.
App.70a
Further, because of this disagreement, the Court
cannot find that Defendants’ conduct was obviously
illegal (much less overwhelmingly so) because “[t]he
state of the law was at best undeveloped.” Wilson, 526
U.S. at 617.18 This is particularly true given that the
issue of Valley Fever at San Joaquin Valley prisons has
been the subject of substantial litigation within this
District, 19 yet no “consensus of cases” has emerged
“such that a reasonable [prison official] could not have
believed that his actions were lawful.” Id. Although
that litigation has shed some light on the issue, no
authority has “fleshed out ‘at what point the risk of
18 The Court notes that visiting District Judge Bolton, relying on
this Court’s prior order in Jackson v. California, No. l:13-cv1055-LJO-SAB, 2014 WL 670104 (E.D. Cal. Feb. 20, 2014),
recently found that former Governor Schwarzenegger and
various PVSP and ASP officials were not entitled to qualified
immunity from an African-American plaintiffs claim that his
contracting Valley Fever while housed at PVSP violated his
Eighth Amendment rights. See Smith v. Schwarzenegger, No.
07-cv-1547 SRB (PC), 2015 WL 106337, at *2 (E.D. Cal. Jan. 7,
2015). This further reinforces the Court’s conclusion that the
unsettled state of the law pertaining to Valley Fever cases within
this district entitles Defendants to qualified immunity from
Plaintiffs’ Eighth Amendment claim.
19 See Hines, 2015 WL 2385095, at *4 (“A Westlaw search of all
federal decisions in the Ninth Circuit using the word string
Valley Fever” returns about 420 responses with case filings
beginning around 1976. . .. Beginning in 2005, the frequency of
case filings increases dramatically and the typical type of case
changes dramatically. Even a casual inspection of the listings
from cases commenced in the last ten years shows that the
overwhelming majority involve claims against state or federal
correctional institutions in what has been termed the hyper
endemic cocci zone of the southern San Joaquin Valley”); Smith,
2015 WL 3953367, at *3 (recognizing disagreement between judges
of this Court concerning Valley Fever cases as of June 29, 2015).
App.71a
harm from [Valley Fever] becomes sufficiently substan
tial for Eighth Amendment purposes.’” Estate ofFord,
301 F.3d at 1051 (quoting Farmer, 511 U.S. at 834
n.3)). The Court therefore GRANTS WITHOUT LEAVE
TO AMEND Defendants’ motion to dismiss Plaintiffs’
Eighth Amendment claim because Defendants have
established that they are entitled to qualified immunity
from the claim.
Accordingly, the Court:
1.
DISMISSES WITHOUT LEAVE TO AMEND
Plaintiffs’ Eighth Amendment claim on the
ground Defendants are entitled to qualified
immunity from the claim; and
2.
ADOPTS IN FULL the Magistrate Judge’s
recommendation to decline supplemental
jurisdiction over Plaintiffs’ California state
law negligence claim and DISMISSES the
claim WITHOUT LEAVE TO AMEND.
The Court will not order the Clerk of Court to
close this case at this time so that the Magistrate
Judge can rule on Plaintiffs’ pending motion to amend
the CAC (Doc. 182).
IT IS SO ORDERED.
/si Lawrence J. O’Neill
United States District Judge
Dated: October 7, 2015
App.72a
FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING DEFENDANTS’
MOTIONS TO DISMISS ON THE GROUNDS OF
QUALIFIED IMMUNITY (ECF NOS. 138-139, 140141, 142, 154, 156, 158, 160, 161) OBJECTIONS
DUE WITHIN FOURTEEN DAYS
(MAY 19, 2015)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
COREY LAMAR SMITH, ET AL.,
Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
Defendants.
Case No.: l:14-cv-00060-LJO-SAB
Before: Stanley A. BOONE, United States District
Judge.
Currently before the Court are two motions to dis
miss filed by Defendants in this action. The Court
heard oral arguments on April 29, 2015. (ECF No. 162.)
Counsel Benjamin Pavone, David Elliott, and Gregg
David Zucker appeared for Plaintiffs, and counsel Jon
S. Allin and Michelle L. Angus appeared for Defen
dants Jeffrey Beard, Paul Brazelton, Matthew Cate,
James Hartley, Susan Hubbard, Deborah Hysen,
App.73a
Scott Kernan, Chris Meyer, Tanya Rothchild, Teresa
Schwartz, Arnold Schwarzenegger, and James Yates;
counsel Kristina Doan Gruenberg appeared for Defen
dants Felix Igbinosa and Dwight Winslow. Id. Having
considered the moving, opposition and reply papers,
the declarations and exhibits attached thereto, argu
ments presented at the April 29, 2015 hearing, as well
as the Court’s file, the Court issues the following
findings and recommendations.
\-
I.
Procedural History
Plaintiffs Corey Lamar Smith, Dion Barnett,
Christopher Garner, Rodney Ray Roberts, Jeremy
Romo, and Danny Dallas (“Plaintiffs”) filed a complaint
in this action against Defendants Arnold Schwarz
enegger, Jeffrey A. Beard, Paul D. Brazelton, Matthew
Cate, J. Clark Kelso, James D. Hartley, Susan L.
Hubbard, Deborah Hysen, Dr. Felix Igbinosa, Tanya
Rothchild, State of California, Dr. Dwight Winslow,
James A. Yates, and Edmund G. Brown in the Sacra
mento Division of the Eastern District of California on
October 28, 2013. (ECF No. 1.) On January 16, 2014,
this action was transferred to the Fresno Division of
the Eastern District of California. (ECF No. 7.) On
January 28, 2014 an order issued relating this action
to Jackson et al. v. State of California, et al., l:13-cv01055-LJO-SAB, a class action raising similar claims.
(ECF No. 15.) On this same date, Plaintiffs filed a first
amended complaint alleging reckless exposure to
dangerous conditions and deliberate indifference to
serious medical needs in violation of the Eighth
Amendment and negligence under California law. (ECF
No. 14.)
App.74a
On March 27, 2014, this action was related to
Beagle et al. v. Schwarzenegger, et al., l:14-cv-00430LJO-SAB, a similar multi-Plaintiff action. Beagle et
al. v. Schwarzenegger, et al., l:14-cv-00430-LJO-SAB
at ECF No. 14. Defendants filed a motion to dismiss
on May 5, 2014. (ECF Nos. 37-40.) The Court issued
an order to show cause why the related actions should
not be consolidated. (ECF No. 42.) Defendant Clark
Kelso was dismissed from the action due to Plaintiffs’
notice of voluntary dismissal on May 22, 2014. (ECF
No. 49.)
On May 29, 2014, Plaintiffs filed a notice that
Abukar v. Schwarzenegger, 2:14-cv-01137-TLN-KJN
was a related case (subsequently transferred to this
district and assigned case no. l:14-cv-00816-LJO-SAB).
(ECF No. 54.) On June 24, 2014, this Court issued
findings and recommendations that were adopted in
part on July 30, 2014; and Plaintiffs were ordered to
file an amended complaint. (ECF Nos. 70, 80.) On
August 17, 2014, Plaintiffs filed a notice that Adams
v. Schwarzenegger, l:14-cv01226-LJO-SAB was a
related case. (ECF No. 81.) On August 18, 2014, an
order issued consolidating Smith, Beagle, Abukar, and
Adams and ordering Plaintiffs to file a consolidated
complaint. (ECF No. 82.)
On November 14, 2014, Plaintiffs filed a consol
idated complaint. (ECF No. 113.) On February 6, 2015,
Defendants Beard, Brazelton, Cate, Hartley, Hubbard,
Hysen, Kernan, Meyer, Rothchild, Schwartz, Schwarz
enegger, and Yates filed a motion for summary judgment
and request for judicial notice. (ECF Nos. 138-139.)
On this same date, Defendants Igbinosa and Winslow
filed a motion to dismiss, request for judicial notice,
and joinder in the motion to dismiss. (ECF Nos. 140-
App.75a
142.) On April 15, 2015, Plaintiffs filed two oppositions
to the motion to dismiss and objections to Defendants’
request for judicial notice. (ECF Nos. 154-156.) On
April 21, 2015, Defendants Igbinosa and Winslow filed
a reply to Plaintiffs opposition. (ECF No. 158) On
April 22, 2015, Defendants Beard, Brazelton, Cate,
Hartley, Hubbard, Hysen, Kernan, Meyer, Rothchild,
Schwartz, Schwarzenegger and Yates filed a reply to
Plaintiffs’ opposition and a response to Plaintiffs’
objections. (ECF No. 160, 161.)
There have been notices of related cases filed for
Morrow v. Schwarznegger, l:14-cv-01395; Hill v. Yates,
l:13-cv-01618; Wright v. Yates, l:13-cv-01822; Chaney
v. Beard, l:14-cv-00369; Campbell v. Schwarzenegger,
l:14-cv-1559; Lewis v. Schwarzenegger, l:14-cv-0697;
Blue v. Schwarzenegger, l:14-cv-01074; Gregg v. Cali
fornia Dep’t of Corrections, 2:09-cv-02561; Bates v.
Schwarzenegger, l:14-cv-02085; Robertson v. Stainer,
l:14-cv-00364; Morales v. Brown, l:14-cv-01717; Chav
arria v. Brown, l:15-cv-00223.; and Altamirano v.
Schwarzenegger, l:15-cv-00607. Some of these actions
have been consolidated into this action, some have been
merely related, some are stayed pending decision on
Defendants’ motions to dismiss, and some have yet to
be addressed, l
1 On May 1,2015, Plaintiff Josh Thomas filed a motion to represent
himself in this action due to counsel informing him that he had
to find a new attorney due to where he was housed when he
contracted Valley Fever. The Court will address this motion and
any other similar motions filed in this action after Judge O’Neill
issues his order on this motion.
App.76a
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a
party may file a motion to dismiss on the grounds that
a complaint “fail[s] to state a claim upon which relief
can be granted.” A complaint must contain “a short
and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully
harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting BellAtlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). In assessing the sufficiency
of a complaint, all well-pleaded factual allegations
must be accepted as true. Iqbal, 556 U.S. at 678-79.
However, “[tlhreadbare recitals of the elements of a
cause of action, supported by mere conclusory state
ments, do not suffice.” Id. at 678.
In deciding whether a complaint states a claim, the
Ninth Circuit has found that two principles apply.
First, to be entitled to the presumption of truth the
allegations in the complaint “may not simply recite
the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). Second, so that it is not unfair to require
the defendant to be subjected to the expenses asso
ciated with discovery and continued litigation, the
factual allegations of the complaint, which are taken
as true, must plausibly suggest an entitlement to
relief. Starr, 652 F.3d at 1216.
App.77a
III. Allegations in Consolidated Complaint
Plaintiffs in this action are 159 current and
former inmates of the California Department of
Corrections and Rehabilitation (“CDCR”) who have
contracted Valley Fever. (Consolidated Compl. at
9,
184-2081, ECF No. 113.) Plaintiffs allege that the
named defendants in this action knew that placing
inmates in prisons where Valley Fever spores were
prevalent posed an unacceptable risk of harm yet they
continued to place inmates in these prisons and did
not take measures to protect Plaintiffs from Valley
Fever. (Id. at Tf 10.) Plaintiffs bring this action against
Pleasant Valley State Prison (“PVSP”) Warden Paul
Brazelton; the current Secretary of the CDCR Jeffrey
Beard; former Secretary of the CDCR Matthew Cate;
former Warden of Avenal State Prison (“ASP”) James
D. Hartley; former Director of the Division of Adult
Operations Susan L. Hubbard; Director of CDCR’s
Office of Facility Planning, Construction and Manage
ment Deborah Hysen; Medical Director of Pleasant
Valley State Prison Felix Igbinosa; Receiver of the
California Correctional Health Care Services Agency
J. Clark Kelso; former head of the Department of Adult
Institutions Scott Kernan; Senior Chief of Facility
Planning, Construction and Management Chris Meyer;
former Chief of CDCR’s Classification Services Unit;
former Deputy Director of Adult Institutions; former
California Governor Arnold Schwarzenegger; former
Statewide Medical Director Dwight Winslow; and
former Warden of PVSP James A. Yates alleging
App.78a
deliberate indifference in violation of the Eighth Amend
ment and negligence under state law.2
Coccidioidomycosis (hereafter “Valley Fever”) is a
parasitic disease carried by a fungus-like organism
that lives in the soil in certain limited geographic
areas, including California. (Id. HU 5, 37.) The organism
produces spores that when inhaled can lodge in the
respiratory system and infect humans. (Id. at HH 5,
38.) Once in the body, the spores grow on host body
tissue and the infection can become debilitating,
disfiguring, intensely painful and can lead to death.
(Id. at HU 5, 39.) Over thirty inmates have died of the
disease and many more have serious medical complic
ations from contracting Valley Fever. (Id. at HU 5, 48.)
In some individuals the disease rapidly spreads
to the lungs and other parts of the body. (Id. at H 6.)
This is known as disseminated infection. (Id.) Dis
seminated infection attacks multiple organ systems,
including the skin, lungs, eyes, bones, joints, nervous
system, and the brain. (Id. at H 7.) Depending on the
site of the disseminated infection, it may lead to dis
figuring skin lesions, destruction of soft tissue, erosion
of bones, joints, and eyes, ulcers penetrating to the
pleura in the lungs, and the colonization of other
organs including the brain. (Id. at H 39.) Where Valley
Fever progresses to disseminated infection, the indiv
idual needs lifelong treatment and can lose limbs,
bones or organs, may suffer disfiguring skin lesions,
and if the infection attacks the brain, may suffer
2 On January 23, 2015, District Judge Lawrence J. O’Neill issued
an order granting Plaintiffs notice of voluntary dismissal of
Defendant Kelso. (ECF No. 135.)
App.79a
permanent brain damage or die from coccidioidal
meningitis. (Id. at Iff 7, 43, 44.)
Coccidioides replicate so quickly that it is consid
ered the most virulent fungal parasite known to man
and was once listed as a potential agent of biological
warfare and bioterrorism. (Id. at Tf 40.) The Centers for
Disease Control (“CDC”) requires scientists handling
Coccidioides spores to use protective protocols just one
level below that required for handling the Ebola virus.
(Id.)
In the general population, 40 percent of individuals
who contract Valley Fever will show symptoms of a
respiratory illness that resembles the flu that may last
for weeks or months. (Id. at ^ 41.) In some segment of
that 40 percent, the infections cause severe lifethreatening pneumonia or disseminated infection to
other parts of the body. (Id.) This percentage can
vary depending on the ethnicity or medical status
of the individual because certain ethnic and racial
groups, including African-Americans, Filipinos and
other Asians, Hispanics, and American Indians, as
well as individuals who are immune compromised or
immune-suppressed, are more susceptible for develop
ing disseminated infection. (Id. at IHf 8, 42.)
There is no cure for Valley Fever in its dis
seminated form. (Id. at If 45.) The disease is treated
with antifungal drugs that can have, severe side effects
and must be taken for a lifetime. (Id.) The drugs do
not eliminate, but reduce the population of infectious
spores. (Id.) This does not eliminate the disease but
keeps the disease partially and temporarily at bay and
debilitating relapses can be expected. (Id.) Treatment
is expensive, and the cost of medication can be in the
range of $5,000 to $20,000 per year. (Id. at Tf 48.)
App.80a
Seventy-five percent of individuals who stop taking
the drugs can be expected to relapse into life-threat
ening disease within a year. {Id. at 45.)
Plaintiffs contend that California health officials
have known about the prevalence of Valley Fever in
the location of the prisons and the acute risks to
inmates for over fifty years. {Id. at If 49.) By the late
1960s, employers were warned that bringing susceptible
workers into the endemic areas carries with it the
responsibility to reduce the rate and severity of
infection and providing a vigorous program of medical
surveillance. {Id. at If 50.) Despite this, between 1987
and 1997, the CDCR built eight prisons in the “hyper
endemic” regions of the San Joaquin Valley: ASP,
California Correctional Institution, California State
Prison-Corcoran, Wasco State Prison, North Kern State
Prison, PVSP, California State Correctional FacilityCorcoran, California Substance Abuse and Treatment
Facility-Corcoran, and Kern Valley State Prison. {Id.
at 11 51.) Two of these prisons, ASP and PVSP, have
increased risks of contracting Valley Fever and PVSP
was known by 2006 to be extraordinarily dangerous.
{Id. at 1f 53.)
PVSP, located in Coalinga, California, provides
long-term housing and services for minimum, medium,
and maximum custody inmates, with approximately
730 staff and 5,188 inmate beds. {Id. at 1J 54.) The area
in which PVSP is located is known to be contaminated
with Valley Fever spores. {Id. at f 55.)
In November 2004, Defendant Kanan, wrote a
memorandum (“Kanan Memo”) to all health care
managers, staff members, and other officials within
CDCR regarding Valley Fever and its origin in soil
fungus. {Id. at If 56.) This memorandum included a
App.81a
three page overview of Valley Fever, its cause, diag
nosis, symptoms, and treatment. {Id. at 57.) This memo
randum acknowledged that prisons in the Central Valley
are located in areas that host spores in the soil; Valley
Fever is potentially lethal to individuals exposed to the
fungus; winds and construction in the area can cause
the organism to be blown into the air where it can be
inhaled and pneumonia may occur; a percentage of
exposed individuals will get pneumonia or dissem
inated disease; the risk and incidence of disseminated
disease is greatest in American Indians, Asians, AfricanAmericans, and immuno-compromised individuals;
dissemination usually occurs to the skin, bones and
meninges although any body part can be involved;
bone lesions, back pain and paraplegia can result; skin
lesions often herald widespread dissemination; menin
geal involvement eventually leads to a severe unremit
ting headache; and treatment must be continued for
life to control symptoms and there is no cure at this
time. {Id. at Tf 57.) This memo was and continues to be
widely available to state officials, including Defendants.
{Id. at Tf 58.)
In late summer to early fall of 2005 construction
began on a new state facility immediately adjacent to
PVSP. {Id. at K1I 68, 69.) The construction churned up
and broadcast the spores into the air and onto bare
soil and surfaces throughout the prison. {Id. at t 68.)
In 2005, PVSP began to experience an epidemic
of Valley Fever, including multiple deaths from the
disease. {Id. at If 59.) Infection rates at PVSP were as
high as 1,000 times the rate seen in the general
population. {Id. at If 60.) An internal CDCR memoran
dum dated October 27, 2006 to all administrative
personnel showed an increase in the number of inmates
App.82a
testing positive for Valley Fever in 2006 with 5 deaths
in 2005 and 8 deaths in 2006. {Id. at Tf 61.) This memo
showed the incidence of Valley Fever increased at
PVSP by more than 445 percent between 2001 and
2005 with an increase of over 2,500 percent in 2006.
{Id. at If 62.) An August 3, 2006 internal memorandum
confirmed that CDCR officials knew that they were
exposing inmates to elevated risks of Valley Fever. {Id.
at 1f 63.)
In 2006, the California prison system accounted
for 30 percent of all Valley Fever cases reported to the
State Department of Health Services. {Id. at 1f 62.)
From 2006 to 2010, rates of Valley Fever in the “hyper
endemic” area prisons worsened. {Id. at Tf 64.) Infection
rates at PVSP, ASP, Wasco, and North Kern were
significantly higher than the rates of the counties in
which they were located. {Id) PVSP’s infection rate
was 1,100 times higher than the rate in California,
ASP was 189 times higher, and Wasco was 114 times
higher. {Id)
A letter dated March 16, 2006 written by a doctor
from the California Department of Health Services
referenced the exceptionally high risk groups in a
letter to an inmate at PVSP and cited a contempo
raneous medical journal article. {Id. at If 83.)
In 2006, the California Department of Public Heath
(“CDPH”), Center for Infectious Disease conducted an
epidemiological study of Valley Fever in California
prisons. {Id. at 107.) The study, published in January
2007, found that the number of cases of Valley Fever
at PVSP in 2005 was three times that of the combined
total of Fresno County combined. {Id. at ^ 107, 108.)
The CDPH made recommendations regarding Valley
Fever on January 11, 2007, and noted that studies
/
App.83a
suggested that the risk for complications is increased
for persons of African or Filipino descent and the risk
is even higher for immunosuppressed individuals. {Id.
at t 87.) The study recommended that CDCR evaluate
relocating the highest risk groups to areas that are not
hyperendemic, and to take steps at the prison to
minimize exposure, including ventilation, respiratory
protection and dust suppression and soil control. {Id.
at f 109.)
At some point the California Corrections Health
Care Services (“CCHCS”) requested assistance from
the CDPH in assessing the magnitude of the problem.
{Id. at 1} 70.) CDPH reported that the rate of Valley
Fever cases at PVSP was 38 times that of the residents
of Coalinga and 600 times the rate in Fresno County.
{Id. at Tf 71.) The CDPH reported the risk of the disease
was associated with increased outdoor time, pre-existing
health conditions, and African-American race. {Id. at
If 71.) The CDPH report included recommendations for
reducing incidents of Valley Fever at the hyper-endemic
prisons. {Id. at % 72.)
Based on CDPH’s report, the CCHCS issued
recommendations in June 2007 that included; using
environmental mitigation in the prisons by landscaping
with ground cover and placing other dust reducing
material on the grounds; continuing to divert and
relocate inmates at high risk of Valley Fever; rein
stating the public health system in prisons; notifying
the local health departments of new cases; expanding
epidemiologic research around cocci; supporting vaccine
research; and not expanding prison beds in the hyper
endemic area, including at PVSP. {Id. at 1f 73.)
In September 2007, Defendant Schwarzenegger
proposed that the state construct new dormitories at
App.84a
PVSP to expand by 600 the number of beds available
to house prisoners. {Id. at f 100.) During a press
conference to announce the expansion plans, Defendant
Schwarzenegger responded to questions about the
expansion inevitably exposing more inmates to Valley
Fever by indicting they would go ahead and build. {Id.
at f 101.)
In November 2007, Defendants Hubbard and
Winslow amended the 2006 exclusion policy to protect
persons with certain identified medical conditions. {Id.
at T[ 74.) The policy did not exclude those high risk
racial and ethnic groups. {Id.)
In 2007, the CDCR Facilities Department Senior
Management officials stated they were preparing to
implement measures to reduce the risk of inmates
contracting Valley Fever at PVSP, including extensive
measures to control inmate exposure to contaminated
soil and improved ventilation systems. {Id. at Tflf 113,
114.) This plan was not implemented until six years
later. {Id. at If 115.) Additionally in 2007, the New
York Times published an article about the Valley Fever
epidemic at PVSP which quoted Defendant Yates
surmising that the inmates contracted Valley Fever
by breathing the spores as they walked around out
there. {Id. at f 117.)
In 2009, the CDCR requested and then terminated
a project by federal health agencies to assist California
with the Valley Fever epidemic. {Id. at Tf 77.) In
December 2009, the federal agencies wrote a letter to
the CDCR indicating that work on the project ceased
due to CDCR’s lack of support in assisting with the
federal agencies investigation, and reminded the CDCR
that African-Americans, and individuals of Asian or
Filipino descent and immuneocompromised individuals
App.85a
were at greater risk of developing disseminated
infection. {Id. at If 78.)
In April 2012, the California Correctional Health
Care Services (“CCHCS”) released a report that
received general circulation among CDCR staff which
found that nothing done between 2006 and 2010 had
any effect on the Valley Fever rates at PVSP and ASP.
{Id. at HI 112, 113.)
From 2006 through 2012, approximately 1,800
inmates became infected at PVSP. {Id. at 1f 65.)
Infection rates were also higher than the rate of
infection in Kern County. {Id. at 1f 66.) An April 2012
study found that the infection rate at PVSP was seven
out of every one hundred inmates. {Id) From 2007
through 2010, the rate of infection at PVSP was six
times higher than the infection rate at the adjacent
mental health facility. {Id. at If 76.) Of the twenty
seven inmates that died of Valley Fever between 2006
and 2010, the rate of deaths for African-Americans (68
percent) was twice that of non-African-American
inmates. {Id. at If 67.) A report by Dr. Pappagianis
attributed the increase in Valley Fever incidents to
the new construction that occurred in 2005-2006. {Id.
at 1f 69.)
A 2012 study in the journal Emerging Infectious
Disease found the rate of hospitalization from dissem
inated infection was 8.8 times higher among AfricanAmericans than whites. {Id) In 2013, Dr. Galgiani
analyzed reports from the Receiver’s Office and noted
that African-American inmates in the Central Valley
died from Valley Fever at higher rates than the
general inmate population and comprised 71 percent of
the inmate deaths from Valley Fever between 2006 and
2011. {Id. at If 88.)
App.86a
The Receiver’s Office took steps to force CDCR to
relocate the high risk inmates. {Id. at f 90.) A spokes
person for the Receiver’s office stated that the State of
California has known since 2006 that segments of the
inmate population were at a greater risk of contracting
Valley Fever and mitigation efforts have proven
ineffective. {Id. at Tf 90.)
Plaintiffs contend that Defendants were aware
that housing inmates at prisons in the hyperendmic
region posed an elevated risk of inmates contracting
Valley Fever by the 2004 Kanan Memo which was
intended to be circulated to all health care professionals
in the CDCR system. {Id. at f1f 91-92.)
In 2005 a prisoner’s rights group sent an infor
mational packet to Defendant Schwarzenegger describ
ing the threat posed by Valley Fever and the threat to
African-Americans, Filipinos, elderly inmates and the
immune compromised. {Id. at 93.)
In 2006-2007, a Fresno Grand Jury undertook the
task of evaluating inmate issues at PVSP and made
recommendations. {Id. at 94.) Beginning in 2007, the
Grand Jury issued periodic public reports stating that
inmates and staff continue to be at risk from Valley
Fever. {Id. at ^ 95.) The Grand Jury issued these
reports starting in 2007 and continuing each year
after to Defendants Brazelton, Yates, and Cates, as
well as to other CDCR officials. {Id. at H 96.) The
Grand Jury required Defendants Yates, Cates, and
Brazelton to respond directly regarding the findings
in the reports. {Id. at If 97.) The Grand Jury found that
the disease rates for all groups at the prison had
increased dramatically since 2004 and that AfricanAmericans, Hispanics, Filipinos and other Asians were
at a far greater risk than other ethnicities. {Id. at
App.87a
If 98.) These reports informed Defendants Yates, Cates,
and Brazelton that inmates were at an increased risk
from Valley Fever if they were housed or remained at
PVSP. {Id. at f 99.)
CDCR publishes and distributes an orientation
manual for all medical personnel that discusses Valley
Fever in detail, {id. at f 103.) The orientation manual
notes that African-Americans, Filipinos, and those
with compromised immune systems or chronic diseases
are at a greatly increased risk of developing dissem
inated infection. {Id.) This orientation manual is
authorized and promulgated by Defendant Winslow. {Id.
at Tf 104.) All medical personnel and facility management
were aware of the information in the orientation
manual. {Id. at Tf 105.)
Plaintiffs allege that the defendants had the
ability to divert inmates away from the hyperendmic
prisons and failed to implement remedial measures
that were recommended by their own experts. Further,
Plaintiffs contend that Defendants had the power to
prevent the plaintiffs from being assigned to hyper
endemic prisons, could have used a routine review
process to transfer Plaintiffs to safer facilities, and
failed to implement remedial measures to reduce the
risk of infection.
IV. Analysis
Defendants Beard, Brazelton, Cate, Hartley,
Hubbard, Hysen, Kernan, Meyer, Rothchild, SchwartzReagle, Schwarzenneger, and Yates move to dismiss
this action pursuant to Rule 12(b) on the grounds that
l) the consolidated complaint does not allege that any
Defendant personally caused the alleged constitu
tional deprivations; 2) Defendants are entitled to
App.88a
qualified immunity; 3) Plaintiffs Corley and Spences
claims are barred by the statute of limitations; 4)
Plaintiffs’ negligence cause of action should be dismissed
as almost no Plaintiff has complied with California’s
Government Claims Act; and 5) those Plaintiffs only
alleging a claim for negligence under state law should
be dismissed. Defendants Igbinosa and Winslow join
in the motion to dismiss and additionally, move to
dismiss on the same grounds.3
Defendants contend that they are entitled to
qualified immunity for the decision to house inmates
in areas in which Valley Fever spores naturally occur
and for any failure to provide environmental safe
guards. Plaintiff argues that it was clearly established
that housing inmates in endemic areas and failing to
implement environmental safeguards would violate
the inmates’ Constitutional rights. Plaintiff further
counters that the allegations in the complaint are
sufficient to state a claim against the individual
defendants and the right at issue was established
more than twenty years ago.
While Defendants move to dismiss this action for
failure to state a claim, the Court finds that addressing
the issue of qualified immunity in the first instance is
appropriate here.
3 Defendants Igbinosa and Winslow bring a motion to dismiss any
claims against them based upon deliberate indifference to medical
needs due to policies or procedures implemented at the prison. At
the April 29, 2015 hearing, Plaintiffs conceded that they are not
bringing any claims based upon medical care or medical policies.
Plaintiffs stated the claims raised in this action are for housing
inmates in areas which caused exposure to Valley Fever.
App.89a
A. Qualified Immunity
1. Qualified Immunity Legal Standard
The doctrine of qualified immunity protects
government officials from civil liability where “their
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). To determine if an official is entitled
to qualified immunity the court uses a two part inquiry.
Saucier v. Katz, 533 U.S. 194, 200 (2001). The court
determines if the facts as alleged state a violation of a
constitutional right and if the right is clearly estab
lished so that a reasonable official would have known
that his conduct was unlawful. Saucier, 533 U.S. at
200.
The district court is “permitted to exercise [its]
sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular
case at hand.” Pearson, 555 U.S. at 236. The inquiry
as to whether the right was clearly established is
“solely a question of law for the judge.” Dunn v.
Castro, 621 F.3d 1196, 1199 (9th Cir. 20lO) (quoting
Tortu v. Las Vegas Metro. Police Dep’t. 556 F.3d 1075,
1085 (9th Cir. 2009)). In deciding whether officials are
entitled to qualified immunity, the court is to view the
evidence in the light most favorable to the plaintiff
and resolve all material disputes in the favor of the
plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184
(9th Cir. 2003).
App.90a
2. The Question at Issue Is 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
Initially, Plaintiffs rely on this Court’s finding in
Jackson that Defendants were not entitled to qualified
immunity on similar claims. In the initial finding and
recommendation addressing qualified immunity in
Jackson, l:13-cv-01055-LJO-SAB (E.D. Cal. February
20, 2014), this Court framed the issue as whether
failing to protect high risk inmates from the risk of
developing disseminated disease would violate the
Eighth Amendment. Id. at 16:21-18:23. However, upon
consideration of the issue in the current motion, the
Court finds this is not the correct question. Therefore,
the Court finds that it is appropriate to address the
substance of the qualified immunity claim in this
motion to dismiss. Further to the extent that this
Court previously cited Helling v. McKinney, 509 U.S.
25 (1993), for the proposition that Defendants are not
entitled to qualified immunity; it now finds that this
action is distinguishable.
Defendants contend that they are entitled to
qualified immunity because there is no clearly estab
lished right not to be housed in the Central Valley or
otherwise be subjected to the environmental risk of
Valley Fever. Plaintiffs contend that Defendants are
defining the right too narrowly. Plaintiffs argue that
the right to be addressed here is the significant
increased risk of infection from Valley Fever.
It is the plaintiff that bears the burden of
demonstrating that the right w;as clearly established
App.91a
at the time that the defendants acted. May v. Baldwin,
109 F.3d 557, 561 (9th Cir. 1997). Defendants cannot
be held liable for a violation of a right that is not
clearly established at the time the violation occurred.
Brown v. Oregon Dep’t of Corrections, 751 F.3d 983,
990 (9th Cir. 2014). A constitutional right is clearly
established when its contours are “sufficiently clear
[so] that a reasonable official would understand that
what he is doing violates that right.” Hope v. Pelzer,
536 U.S. 730, 739 (2002). In light of the preexisting
law the lawfulness of the officials act must be apparent.
Id. at 739. The court is to look to the state of the law
at the time the defendants acted to see if it gave fair
warning that the alleged conduct was unconstitutional.
Id. at 741.
Further, the Supreme Court has emphasized that
it is often difficult for an official to determine how
relevant legal doctrine will apply to the specific
situation that is faced and that is why qualified
immunity protects “all but the plainly incompetent or
those who knowingly violate the law[.]” Estate ofFord
v. Ramirez-Palmer, 301 F.3d 1043,1049 (9th Cir. 2002).
It is not sufficient for Plaintiffs to merely argue the
general rule that prison officials cannot deliberately
disregard an excessive risk of harm. Estate of Ford,
301 F.3d at 1051.
When we are considering whether the official had
notice that his conduct was unlawful, we look not to
the harm that results, but what condition the inmate
was exposed to that could cause the harm. In Helling,
the question was not how serious the harm to the
inmate could be from second hand smoke, but whether
exposing the inmate “to levels of ETS that pose an
unreasonable risk of serious damage to his future
App.92a
health” would violate the Eighth Amendment. 509 U.S.
at 35. The condition the inmate was exposed to was
ETS due to being housed with a cellmate who smoked
five packages of cigarettes per day.
While Plaintiffs argue that in determining qualified
immunity we consider the risk of disseminated disease,
Plaintiffs were not exposed to disseminated disease.
Plaintiffs allege that they were housed in the Central
Valley in an area where spores that cause Valley Fever
are endemic. The majority of Plaintiffs allege that
they have some factor which causes them to be at an
increased risk of developing disseminated infection
from Valley Fever. If Plaintiffs are correct that we look
only to the harm that could result, the right to be free
from any act that caused significant harm would be
clearly established and Defendants could never be
granted qualified immunity. That is clearly not the
intent of the law.
During the April 29, 2015 hearing, Plaintiffs
argued that qualified immunity cannot mean that the
first time a right is violated the defendants are not
liable. But where a right is not clearly established a
defendant is entitled to qualified immunity from
damages. “[Glovernment officials performing discretion
ary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). That
is not to say that the plaintiff is without remedy for
his injury as he could seek tort damages for violations
of state law. But the question We address here is
whether it is clearly established that the conduct at
issue would violate the inmates’ federal rights.
App.93a
When confronted with a claim for qualified
immunity we are to ask “[t]aken in the light most
favorable to the party asserting the injury, do the facts
alleged show that the officer’s conduct violated a
constitutional right.” Brosseau v. Haugen, 543 U.S.
194, 197 (2004). This inquiry is to be taken in light of
the specific context of the case and not as a broad
general proposition. Brosseau, 543 U.S. at 198. “The
relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 199
(quoting Saucier, 533 U.S. at 202). Prison officials are
entitled to qualified immunity where it is not clearly
established that the conduct complained of would
violate the Eighth Amendment. Pearson, 555 U.S. at
243.
The Supreme Court has told us that we are not
to define clearly established law at a high level of
generality. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084
(2011). While Plaintiffs rely on the risk of harm and
argue the general rule, “the right allegedly violated
must be defined at the appropriate level of specificity
before a court can determine if it was clearly estab
lished.” Wilson v. Layne, 526 U.S. 603, 615 (1999). The
Ninth Circuit recently addressed a deliberate indif
ference claim in which an arrestee was placed in the
drunk tank and was attacked by another detainee.
Castro v. Cnty. ofLos Angeles,
F.3d.__ , 2015 WL
1948146, at *1-2 (9th Cir. May 1, 2015). The right at
issue was not merely the right to be free from a risk of
violence, but was found to be “the right to be free from
violence at the hands of other inmates.” Id.
App.94a
Here, Plaintiffs allege that they were exposed to
Coccidioides fungal spores that exist in the soil and
when inhaled can cause Valley Fever. The Court finds
that the question to be addressed here is whether it
was clearly established that 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.4
3. It Is Not Clearly Established That
Environmental Exposure of Inmates to
Valley Fever Would Violate the Eighth
Amendment
Plaintiffs argue that Defendants “gloss over the
first inquiry “whether a constitutional right was
violated.” (ECF No. 154 at 21.) However, as here,
where Defendants are arguing that it is unclear
whether the right at issue exists, the Court can consider
4 In determining how to frame the right at issue, the Court
considers Helling. In Helling, the inmate was alleging that he
was exposed to a condition created by other prisoners smoking
cigarettes with exposed him to environmental tobacco smoke
(“ETS”). The Helling court did not frame the right as a manmade
condition that could cause a serious risk of harm. In Helling, the
Supreme Court considered whether exposing the inmate “to
levels of ETS that pose an unreasonable risk of serious damage
to his future health” would violate the Eighth Amendment. 509
U.S. at 35. The court considered the specific substance to which
the inmate alleged he was exposed that would cause him harm.
Similarly in this instance, the Court considers that Plaintiffs are
alleging they were exposed to spores which can cause Valley
Fever. However, as discussed below, the Court is not requiring a
case to be directly on point, but is analyzing whether prior case
law would place Defendants on notice that the exposure of
inmates to Valley Fever would violate their rights under the
Eighth Amendment.
App.95a
the second prong of the inquiry first. Pearson, 555 U.S.
at 236.
Qualified immunity shields an official from per
sonal liability where he reasonably believes that his
conduct complies with the law. Pearson, 555 U.S. at
244. ‘“Qualified immunity gives government officials
breathing room to make reasonable but mistaken
judgments,’ and ‘protects all but the plainly incompetent
or those who knowingly violate the law.’” Stanton v.
Sims, 134 S.Ct. 3, 5 (2013) (citations omitted). In deter
mining whether the defendant is entitled to qualified
immunity, the court is to determine if “a reasonable
officer would have had fair notice that [the action] was
unlawful, and that any mistake to the contrary would
have been unreasonable.” Chappell v. Mandeville, 706
F.3d 1052,1056-57 (9th Cir. 2013) (quoting Drummond
exrel. Drummond v. City ofAnaheim, 343 F.3d 1052,
1060-61 (9th Cir. 2003)).
Prison officials are entitled to qualified immunity
where it is not clearly established that the conduct
complained of would violate the Eighth Amendment.
Pearson, 555 U.S. at 243. Under the Eighth'Amend
ment, prison officials cannot be deliberately indifferent
to conditions of confinement that create a substantial
risk of significant harm. Farmer v. Brennan, 511 U.S.
825, 847 (1994). To prove a violation of the Eighth
Amendment a plaintiff must “objectively show that he
was deprived of something ‘sufficiently serious,’ and
make a subjective showing that the deprivation
occurred with deliberate indifference to the inmate’s
health or safety.” Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010) (citations omitted). “A deprivation
is sufficiently serious when the prison official’s act or
omission results in the denial of the minimal civilized
App.96a
measure of life’s necessities.” Foster v. Runnels, 554
F.3d 807, 812 (9th Cir. 2009) (internal punctuation
and citations omitted). A plaintiff satisfies the objective
component of whether he has been exposed to a
sufficiently serious deprivation by showing that he is
incarcerated under conditions that pose a substantial
risk of serious harm. Lemire v. California Dep’t of
Corrections and Rehabilitation, 726 F.3d 1062, 1075
(9th Cir. 2013). Therefore, the Court shall examine the
state of the law to determine if it is clearly established
that housing inmates in prisons in areas endemic for
Valley Fever would violate the Eighth Amendment.
a. There Does Not Have to be Case
Directly on Point, But Prison Officials
Must Have Had Fair Notice That the
Conduct Violates the Eighth Amendment
It is not required that there be a case directly on
point before concluding that the law is clearly estab
lished, “but existing precedent must have placed the
statutory or constitutional question beyond debate.”
Stanton, 134 S.Ct. at 5 (quoting al-Kidd, 131 S.Ct. at
2085). It was in Hope that the Supreme Court estab
lished that a case need not be fundamentally similar
for prison officials to have notice that their conduct
would violate the Eighth Amendment.
In Hope, an inmate appealed the finding that
prison officials were entitled to qualified immunity for
handcuffing him to a hitching post for hours as a form
of punishment. Hope, 536 U.S. at 735. The district court
found that although the actions violated the Eighth
Amendment, the officials were entitled to qualified
immunity. Id. The Eleventh Circuit affirmed, stating
that, while there were two analogous cases, there were
App.97a
no cases with materially similar facts to place defen
dants on notice. Id. The Supreme Court reversed
holding that precedent does not require a factual
situation to be fundamentally similar, but the prior
decision must give reasonable warning that the conduct
at issue would violate a constitutional right. Id. at 740.
At the time the defendants acted there were two
cases, Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)
and Ort v. White, 813 F.2d 318 (llth Cir. 1987), which
held that corporal punishment which runs afoul of the
Eighth Amendment, such as handcuffing inmates to a
crate or cell for long periods of time and denial of
drinking water after the prisoner terminates his
resistance, are not permitted. Hope, 536 U.S. at 74143. The Court concluded that “Hope was treated in a
way antithetical to human dignity—he was hitched to
a post for an extended period of time in a position that
was painful, and under circumstances that were both
degrading and dangeroust,]” not out of necessity, but as
a punishment for prior conduct. Id. at 745. Gates and
Ort provided sufficient notice that this conduct would
be unconstitutional. Id. In applying the holding in
Hope, this Court is to determine if there is case law
that would have provided Defendants with sufficient
notice that environmental exposure of inmates to
Valley Fever would violate their Eighth Amendment
rights.
Significantly, the Eighth Amendment prohibits
punishments that are incompatible with “the evolving
standard
This text is long and has been trimmed here. Open the source document for the complete record.
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.