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

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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

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