LAWRENCE J. O'NEILL, District Judge.
Plaintiffs
Plaintiffs assert two causes of action against Defendants under 42 U.S.C. § 1983 ("§ 1983") in which they allege Defendants "recklessly caused Plaintiffs to contract Valley Fever" in violation of their Eighth Amendment rights. Compl. at ¶ 1. Specifically, Plaintiffs allege Defendants (1) recklessly exposed Plaintiffs to dangerous conditions in violation of the Eighth Amendment and (2) Defendants were deliberately indifferent to Plaintiffs' serious medical needs in violation of the Eighth Amendment. Compl. at 1. Plaintiffs assert a third cause of action against Defendants for negligence. Id.
Defendants moved to dismiss the complaint. Docs. 25, 27. On June 24, 2014, the Magistrate Judge issued Findings and Recommendations ("F & Rs") recommending that Defendants' motion to dismiss be granted in part and denied in part. Doc. 64 ("F & R") at 1.
On July 8, 2014, Plaintiffs timely filed twelve objections to the F & Rs ("Plaintiffs' objections"). Doc. 66 at 3. On July 22, 2014, Defendants Dr. Igbinosa and Dr. Winslow timely filed a reply to Plaintiffs' objections (Doc. 70), as did Defendants Beard, Brazelton, Brown, Cate, Hartley, Hubbard, Hysen, Meyer, Rothchild, Schwarzenegger, and Yates (Doc. 71). The Court has reviewed the F & Rs, as well as the parties' arguments for and against their adoption, and finds it appropriate to discuss the facts and the F & Rs only to the extent necessary to resolve Plaintiffs' objections.
For the following reasons, the Court ADOPTS IN PART the F & Rs. Accordingly, Defendants' motions to dismiss are GRANTED IN PART and DENIED IN PART.
Valley Fever is the colloquial name for Coccidiodomycosis, "`an infectious disease
Valley Fever "is not contagious between persons but to those who become infected it can be debilitating, disfiguring, and intensely painful." Compl. at ¶ 5. It is "a lifelong and crippling disease." Id. at ¶ 1. If it is "not treated quickly, accurately, and indefinitely, it can be fatal. Over (30) prisoners [at PVSP and ASP] have already died from the disease and many more live with serious medical complications from it." Id.
"[S]ome 60% of people who are exposed to the Coccidioides fungus do not show overt symptoms of illness." Id. at 43. Some individuals only develop "mild or moderate flu-like symptoms or no symptoms." Id. at ¶ 6. "[M]ost of the remaining 40% will show symptoms of a respiratory illness resembling the flu that may last weeks or months." Id. at ¶ 44. "But the disease can rapidly progress to a so-called disseminated form for some." Id.
"Valley Fever has the capacity to infect any person, regardless of race, health status or immunological strength. But it is currently undisputed and well-known that certain groups are much more likely than others to contract the potentially lethal disseminated form of Valley Fever." Id. at ¶ 84. The disseminated form is more likely to affect "certain ethnic and racial groups including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as for anyone who may be immune-compromised or immune-suppressed, such as those taking medication for chronic arthritis." Id. Filipinos and African-Americans, for instance, "have been shown to have up to a 200-fold increased risk of disseminated disease and an increased mortality rate." Id. at ¶ 86.
Plaintiffs allege that Defendants knowingly placed inmates in prisons "where Valley Fever was already occurring in epidemic rates" and "failed to implement even rudimentary measures recommended by the correctional authority's own medical experts to protect Plaintiffs from the disease." Id. at ¶ 9; see also id. at ¶ 57 ("[T]he soil surrounding and under PVSP is densely contaminated with the Coccidioides fungus. Yet, Defendants failed to take even the most basic precautions to guard against exposure.").
Plaintiffs allege that Defendants could have taken a number of preventative measures to lower Plaintiffs' risk of contracting Valley Fever. Id. at ¶ 10. Specifically, Plaintiffs allege that
Id. Plaintiffs claim, however, that "Defendants took none of these actions." Id.
Plaintiffs allege that Defendants knew as early as the fall of 2004 that "Central Valley prisons are located within areas which host the dangerous cocci fungus in
According to Plaintiffs, in 2005 PVSP "began to experience an epidemic of Valley Fever, including multiple deaths from the disease." Id. at ¶ 62. "Infection rates at PVSP ... were as much as 1,000 times the rate seen in the local population, yet state officials continued to transfer susceptible and non-susceptible inmates alike to th[e] prison." Id. at ¶ 63. By 2006, there were over 1,100 cases and eight inmate deaths. Id. at ¶ 64.
By August 2006, "Defendants knew they were housing inmates in hyper-endemic locations." Id. at ¶ 70. Plaintiffs allege that "[e]xperts, including [California Department of Corrections and Rehabilitation ("CDCR")] staff, attributed the rapid and continued increase in Valley Fever cases at PVSP in 2005/2006 to the new construction initiated next to the prison." Id. at ¶ 74. "Defendants ... multiplied the risk to inmates at PVSP when they decided to construct a new mental hospital facility ... less than 200 yards away" from PVSP. Id. at ¶ 75.
The construction "churned up an inordinate amount of the ... fungal spores into the ambient air in and around the prison." Id. at ¶ 77. Plaintiffs allege "Defendants recklessly exposed the inmate population and failed to take any adequate precautions to protect inmates from the spores that would inevitably migrate onto the PVSP grounds and facility as a direct result of the soil disruption caused by the construction." Id. at ¶ 78.
"In 2006 the California Department of Public Health, Center for Infectious Disease conducted an epidemiological study of Valley Fever in California prisons," which was published in January 2007. Id. at ¶ 108. The study found that the incidence rate at PVSP was "3 times that of the entire rest of Fresno County combined." The study recommended relocating the highest risk groups to non-hyper-endemic areas "and, at a minimum, to take steps at the prisons to minimize exposure, including ventilation, respiratory protection, and dust suppression and soil control." Id. at ¶ 110. Plaintiffs allege Defendants were aware of the study and its recommended "mitigation measures." Id. at ¶ 111.
In June 2007, the California Correctional Health Care Services issued recommendations that included, among other things, "proceeding with environmental mitigation in the prisons through landscaping with ground cover, [] placing concrete and other dust reducing materials on the grounds... [and] continu[ing] the diversion and relocation of inmates at high risk for [the Valley Fever]." Id. at ¶ 79.
Also in 2007, a Fresno County Grand Jury "undertook the task of evaluating inmate health status at PVSP and made a series of recommendations." Id. at ¶ 94. The Grand Jury found that "`[l]ocal prison officials are well aware of'" the incidence of Valley Fever at PVSP and "that inmates, and staff, continue to be at great
In 2007, CDCR officials "stated that they were preparing measures to reduce the risk to inmates of contracting Valley Fever at PVSP." Id. at ¶ 115. "The planned remedial actions included extensive measures to control inmates' exposure to contaminated soils outside buildings and greatly improved ventilation systems to limit the inmates' exposure inside the buildings." Id. at ¶ 116. Plaintiffs allege, however, that "[n]ot a single element of this remedial plan was ever implemented until six years later, and only after two contested court orders forced CDCR to act." Id. at ¶ 117 (emphasis in original).
"From 2007 through 2010, the rate inside PVSP was 6 times higher than the rate among residents of the state mental health facility right next door." Id. at ¶ 81. "Of 27 state inmates who died of Valley Fever between 2006 and 2010, at least 18 of them (or 68 percent) were African-Americans, according to the report. The rate of death due to Valley Fever among African-Americans was twice that among non-black inmates." Id. at ¶ 73.
A California Correctional Health Care Services report "found that CDCR had done nothing between 2006 and 2010 that had any effect on cocci incidence rates at PVSP and ASP." Id. at ¶ 124. The report noted: "Valley Fever incidence rates at the hyper-endemic prisons were drastically elevated and that African-Americans in particular were at increased risk of contracting Valley Fever and of suffering its legal form." Id. at ¶ 125. Further, the report found that "PVSP in particular had extensive areas of un-stabilized soil on its grounds, posing an extreme risk of spore release, transport, and infection and noted that simply `... planting lawns and paving roads reduced the rate of coccidiodal infection by one-half to two-thirds.'" Id. at ¶ 126.
The Court reviews the F & Rs de novo. Fed.R.Civ.P. 72(b)(3). A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the 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." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). 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 plaintiff 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility
"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 not do." Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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, 129 S.Ct. 1937. 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, 127 S.Ct. 1955. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted).
The Court will address Plaintiffs' objections in turn. Thus, the underlying facts and the relevant portions of the F & Rs will be discussed only to the extent necessary to resolve each objection.
The Magistrate Judge noted that "[s]ixty percent of individuals [who contract Valley Fever] experience no symptoms and most of the remaining forty percent only have mild flu-like symptoms." F & Rs at 23. The Magistrate Judge found that African-Americans, Filipinos and other Asians, Hispanics, American Indians, and immunocompromised individuals can state an Eighth Amendment claim
The Magistrate Judge found, however, that "Plaintiffs to this action must belong to one of these groups which place them at high risk of developing disseminated [Valley Fever] to state a claim." Id. Accordingly, the Magistrate Judge found that, as a matter of law, immunocompetent Caucasian Plaintiffs cannot, without more, state an Eighth Amendment claim because they do not belong to "a high risk category" for disseminated Valley Fever. Id. at 23-24. The Magistrate Judge noted that "no court has held that exposure to Valley Fever, in and of itself, presents a substantial risk to an inmate's health" and that "merely being exposed to an area, even a hyper-endemic area, by itself does not constitute an excessive risk of harm." F & Rs at 22 (citing Sullivan v. Kramer, No. 1:13-CV-00275-DLB-PC, 2014 WL 1664983, at
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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (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. of Los Angeles, 514 F.3d 946, 957 (9th Cir.2008) (emphasis added) (quoting Farmer, 511 U.S. at 841, 114 S.Ct. 1970). Thus, a prisoner may state "a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to [environmental conditions] that pose an unreasonable risk of serious damage to his future health." Helling, 509 U.S. at 35, 113 S.Ct. 2475.
The Court notes that judges in this District, including the undersigned, "have repeatedly found that confinement in a location where Valley Fever is prevalent, in and of itself, fails to satisfy the first element of an Eighth Amendment claim, i.e., that the condition poses an excessive risk of harm." Lua v. Smith, No. 1:14-CV-00019-LJO-MJS, 2014 WL 1308605, at *2 (E.D.Cal. Mar. 31, 2014)
The Ninth Circuit has only touched on the issue in undeveloped, unpublished decisions that do not establish what facts an inmate must allege to state a viable Eighth Amendment claim on the ground he/she was exposed to and/or contracted Valley Fever while incarcerated. See, e.g., Smith v. Schwarzenegger, 393 Fed.Appx. 518 (9th Cir.2010). In Smith, for instance, the plaintiff brought a claim under § 1983 on the ground that his exposure to Valley Fever while incarcerated violated his Eighth Amendment rights. Smith v. Schwarzenegger, No. 1:07-cv-01547-SRB, 2009 WL 900654, at *2 (E.D.Cal. Mar. 31, 2009). The plaintiff alleged that, as an African-American, he was more susceptible to contracting the disease. Id. Notably, however, the plaintiff did not allege that he did, in fact, contract Valley Fever. Id. The district court dismissed the plaintiff's complaint on the ground it failed to allege facts showing that the defendants "were aware of a particular threat to Plaintiff's health or that Plaintiff has been harmed as the result of Defendants' actions or failure to act." Id. Rather, the plaintiff alleged only that the defendants were aware of the presence of Valley Fever and that the plaintiff could contract it, which the district court found to be insufficient. Id.
The Ninth Circuit reversed, holding that the district court erred in dismissing the plaintiff's complaint with prejudice "because it is not beyond doubt that [the plaintiff] could prove no set of facts in support of his claims that would entitle him to relief." Smith, 393 Fed.Appx. at 518. Id. (citing and quoting Helling, 509 U.S. at 35, 113 S.Ct. 2475 (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 unreasonable risk of serious damage to his future health")).
Similarly, the Ninth Circuit reversed this Court's decision in Johnson v. Pleasant Valley State Prison, 505 Fed.Appx. 631 (9th Cir.2013). In Johnson, the plaintiff 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 Findings and Recommendations, id. at Doc. 13, to which the plaintiff filed objections. Id. at Doc. 14. Citing Farmer, 511 U.S. 825, 114 S.Ct. 1970 and Helling, 509 U.S. 25, 113 S.Ct. 2475, the plaintiff argued that the defendants exhibited deliberate indifference to the plaintiff by placing him an excessive risk of contracting Valley Fever during his term at PVSP. Id. at 2-3.
This Court adopted the Magistrate Judge's Findings and Recommendations in full. See No. 1:11-CV-191-LJO-BAM PC, Johnson v. Pleasant Valley State Prison, Doc. 15. This Court found, among other things, that "[e]ven 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." Johnson, 2012 WL 1297380, at *3. This Court further found that "[t]here is no support for such a sweeping proposition," and therefore this Court held that "Plaintiff's Eighth Amendment claim arising from the mere fact that he is being
The Ninth Circuit reversed, holding
Johnson, 505 Fed.Appx. at 632. The court, however, "express[ed] no opinion as to the sufficiency or merit of [the plaintiffs] allegations." Id.
On the one hand, the Court is aware of the substantial body of caselaw from this District holding that, as a matter of law, an inmate's exposure to and contraction of Valley Fever, in and of itself, is insufficient to state an Eighth Amendment claim. Judges of this District continue to so hold. See, e.g., Chaney v. Beard, No. 1:14-CV-369-MJS, 2014 WL 2957469, at *3 (E.D.Cal. June 30, 2014) ("One cannot state an Eighth Amendment claim based solely upon exposure to, or contraction of, Valley Fever.").
The Ninth Circuit's decisions in Johnson and Smith, although brief, call into question the continuing validity of such a holding. In fact, the Ninth Circuit's decision in Smith suggests otherwise. As the Ninth Circuit indicated in Smith, the plaintiff, who allegedly was exposed to Valley Fever, but did not contract the disease, may have had a viable Eighth Amendment claim. 393 Fed.Appx. at 519 ("the district court erred because it is not beyond doubt that Smith could prove no set of facts in support of his claims that would entitled him to relief").
The Ninth Circuit's decisions in Smith and Johnson relied, in part, on Helling and Farmer, respectively, which emphasize that an inmate's exposure to a health risk, in and of itself, may violate the Eighth Amendment. In Helling, the plaintiff-inmate alleged that the defendants violated his Eighth Amendment rights by assigning him to a cell with another inmate who smoked five packs of cigarettes a day. 509 U.S. at 28, 113 S.Ct. 2475. The plaintiff alleged that the defendants were deliberately indifferent to the health risks created by his cellmate's smoking, in violation of the Eighth Amendment. Id. The Supreme Court rejected the defendants' argument that the Eighth Amendment "does not protect against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat." Id. at 33, 113 S.Ct. 2475. The Court explained:
Id. at 33, 113 S.Ct. 2475. The Court therefore held that an inmate "states a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke ("ETS")] that pose an unreasonable risk of serious damage to his future health." Id. at 35, 113 S.Ct. 2475 (emphasis added).
The Court explained, however, that
Id. at 36, 113 S.Ct. 2475 (emphasis in original).
At least one visiting judge in a case from this District has relied on this holding from Helling to find that inmates have no Eighth Amendment claim for exposure to Valley Fever. See Moreno v. Yates, No. 1:07-CV-1404-DGC, 2010 WL 1223131, at *2 (E.D.Cal. Mar. 24, 2010). The court noted that, under Helling, the plaintiff "has the burden of showing that the `risk of which he complains is not one that today's society choose to tolerate.'" Id. (quoting Helling, 509 U.S. at 36, 113 S.Ct. 2475). The court found that the plaintiff failed to meet this burden because, "[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." Id. (quoting Helling, 509 U.S. at 36, 113 S.Ct. 2475).
In Farmer, the plaintiff-inmate argued that the defendants had violated his Eighth Amendment rights by failing to provide adequate protection against assaults within the prison. 511 U.S. at 825, 114 S.Ct. 1970. The plaintiff alleged that the defendants "had acted with `deliberate indifference' to [his] safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that [he] would be particularly vulnerable to sexual attack." Id. The Court held, among other things, that "a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to
The Ninth Circuit recently discussed Helling, Farmer, and other related cases applying their holdings in Parsons, 754 F.3d at 677. The court explained:
Id. at 677 (emphasis in original). Thus, under Helling, Farmer, and subsequent Ninth Circuit cases, the mere exposure to a health risk, in and of itself, may violate the Eighth Amendment. Id.
Thus, to the extent the F & Rs found that Plaintiffs cannot, as a matter of law, at this, the pleading stage, state a claim for exposure to and/or contraction of Valley Fever unless they belong to a group that has a higher risk of contracting the disease or belong to a group that is more susceptible to developing a more severe form of the disease, the Court disagrees. The case law from the Ninth Circuit and the Supreme Court support Plaintiffs' contention that an inmate's mere exposure to a dangerous condition may provide grounds for an Eighth Amendment claim.
Plaintiffs do not simply allege that their Eighth Amendment rights were violated due to contracting Valley Fever while incarcerated. Plaintiffs allege that the location of PVSP and ASP combined with Defendants' conduct placed them at an unnecessarily and avoidably high risk of contracting the disease. See Compl. at ¶¶ 9-10. Plaintiffs allege that PVSP and ASP are in hyper-endemic regions where the likelihood of contracting Valley Fever is dramatically higher than other parts of the state. See id. at ¶ 71 ("In comparison with the overall 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)."); see also id. at ¶ 109 (incidence rate of Valley Fever three times higher than the rest of Fresno County). Further, Plaintiffs allege that Defendants knew of numerous remedial and preventative measures that Defendants could have employed that, if implemented, could have lowered Plaintiffs' risk of contracting the disease. See, e.g., id. at ¶ 386 ("... remedial measures such as ground cover, ventilation management, protective devices, administrative procedures, and management of inmate exposure to the environmental risks — none of which Defendants ever seriously attempted").
Plaintiffs allege that anyone can contract Valley Fever with severe consequences. See Compl. at ¶¶ 47, 84, 96. That certain individuals may be more susceptible
The Court finds that Plaintiffs have alleged sufficient facts to state a claim under the Eighth Amendment against Defendants for exposing them to a dangerous condition with deliberate indifference. Helling, 509 U.S. at 35, 113 S.Ct. 2475. Plaintiffs 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. Whether some groups are more susceptible to the disease than others in some way is not dispositive at the pleading stage for Eighth Amendment purposes. Although one group may be at more risk than another, they both may be at a constitutionally unacceptable level of risk. Plaintiffs here are all at risk of contracting Valley Fever. The Court finds that Plaintiffs need not, as a matter of law, identify a factor responsible for either increasing the risk of contraction or the severity of infection to state an Eighth Amendment claim. This holding, however, should not be read to indicate that a Rule 56 motion will not decide this case.
The Magistrate Judge found that "[t]o the extent that Plaintiff Koklich contends that construction around PVSP placed him at a higher risk of contracting Valley Fever, the Court finds that this claim is improperly joined [under Fed.R.Civ.P. 20(a)] in this action." F & Rs at 24. The Magistrate Judge found that Plaintiff Koklich's claim "is not common to the allegations of the other plaintiffs in this action" because it "is not based upon the policy of housing high risk inmates in the hyper-endemic area." Id. The Magistrate Judge therefore concluded that Plaintiff Koklich's claim "does not arise out of the same transaction, occurrence or series of transactions" because it is "based upon discrete decisions by officials to build around PVSP and these facts do not rise in the claims brought by the other plaintiffs in this action." Id. The Magistrate Judge recommended that Plaintiff Koklich be dismissed without leave to amend.
Plaintiffs object to this finding. Doc. 66 at 13-14. In their objections to the F & Rs, Plaintiffs argue that Plaintiff Koklich's claim of increased risk due to construction at PVSP between 2005 and 2006 is "common to most of the Plaintiffs — in fact, eighteen of the twenty-two [P]laintiffs ... share this claim." Id. at 14. Plaintiffs also argue that the "effects of that construction on the risk of infection ... continue to the present day." Id. at 13.
As pled in their complaint, however, the extent to which Plaintiffs allege construction at PVSP injured them is unclear. Though Plaintiff Koklich mentions construction took place while he was incarcerated at PVSP, he does not allege it affected him in any way. See Compl. at ¶ 305 ("From September 2008 until May 2009
The earliest any Plaintiff was incarcerated at PVSP is 2007. See Compl. at ¶ 265 (Plaintiff Garza "was transferred to PVSP... in 2007"). It is unclear when some of the Plaintiffs were first incarcerated at PVSP. See, e.g., id. at ¶¶ 296-97 (Plaintiff Johnson "was transferred to PVSP to serve a brief sentence" and was diagnosed with Valley Fever in 2012); id. at ¶ 318 (Plaintiff Romero "was transferred from PVSP to North Kern State Prison ... on September 3, 2010"). Many of the Plaintiffs were not incarcerated in PVPS until 2011 or 2012. See, e.g., id. at ¶ 340 (Plaintiff Villanueva "was transferred ... to PVSP in January 2011"), ¶ 308 (Plaintiff Montgomery was transferred to PVSP on January 1, 2012). In their objections to the F & Rs, Plaintiffs assert that the complaint alleges that the effects of the construction "continue to the present day." Doc. 66 at 13 (citing Compl. at ¶¶ 73-77). The complaint, however, does not so allege; it only alleges that the construction attributed to an increase in the incidence of Valley Fever at PVSP through 2010. See Compl. at ¶¶ 71-77.
Due to the lack of clarity in the complaint, the Court cannot determine at this time whether joinder of Plaintiff Koklich's claim is proper to the extent that it is based on construction at PVSP. As discussed above, Plaintiffs, including Plaintiff Koklick, have stated an Eighth Amendment claim in spite of their unclear allegations concerning construction at PVSP. But because the Court is dismissing in part Plaintiffs' complaint with leave to amend on other grounds, see, e.g., infra at 1071-72, Plaintiffs may amend their complaint with respect to their construction-related allegations if they wish to do so. If they do not, the objection would carry over and would be overruled.
Plaintiffs object to the F & Rs "possibly by oversight, omit[ting] from its findings the fact that individuals over the age of 55 are also considered to face a higher risk of infection and complications." The F & Rs note that Plaintiffs allege that individuals over the age of 55 "are also at an increased risk of developing disseminated disease." F & Rs at 23, n. 3. Further, the F & Rs found that according to "staff experts ... inmates over 55 years of age had a 60% increased risk" of developing disseminated Valley Fever. Id. at 9. It is unclear whether the F & Rs did not, in fact, find that individuals over the age of 55 are not at increased risk from Valley Fever, but the complaint is clear that Plaintiffs allege individuals over the age of 55 are at increased risks from Valley Fever. See Compl. at ¶ 88. Because the Court finds that an inmate need not be in a higher risk group to state an Eighth Amendment claim, the Court need not find that individuals over the age of 55 are at an increased risk from Valley Fever at this time.
The F & Rs recommended dismissing Plaintiff Beagle for failure to state a claim on the ground that he is not in a higher risk category. F & R at 23. Plaintiffs object, arguing that Plaintiff Beagle's skin graft constitutes an organ transplant, which placed him at increased risk of Valley
Plaintiffs object to the Magistrate Judge's recommendation to dismiss Plaintiffs' second cause of action against Defendants for being deliberately indifferent to their serious medical needs in violation of the Eighth Amendment. Doc. 66 at 15; see also F & Rs at 29. The F & Rs found, among other things, that the fact Plaintiffs had no serious medical condition that required medical attention precluded their Eighth Amendment claim based on Defendant's alleged deliberate indifferent to their serious medical needs. Plaintiffs assert that "certain Defendants' actions, in placing and confining certain of the Plaintiffs with known medical conditions in areas where they were exposed to greatly increased risks of serious medical injury, were recklessly indifferent to those Plaintiffs' serious medical need." Doc. 66 at 15.
The test for establishing deliberate indifference to serious medical needs has two parts:
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). The second part of the test is satisfied by "showing (a) purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Id. "Indifference `may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care' .... Yet, an `inadvertent [or negligent] failure to provide adequate medical care' alone" is insufficient. Id. (citations omitted).
Plaintiffs allege that "Plaintiffs, including especially ones with pre-existing medical conditions ... faced an unacceptably high risk of serious medical consequences from their forced exposure to increased risk of Valley Fever at the hyper-endemic prisons." Compl. at ¶ 384. Plaintiffs further allege that each of the Defendants "was personally aware that inmates with identified medical conditions were particularly susceptible to Valley Fever in its most dangerous form, and each of them was in a position to establish or contribute to policies or to take other actions that would have addressed Plaintiffs' serious medical needs." Id. at ¶ 390. Plaintiffs do not allege any facts that Defendants denied, delayed, or intentionally interfered with Plaintiffs' medical treatment, and Plaintiffs do not allege that Defendants failed to treat any medical condition. Rather, Plaintiffs allege that Defendants exhibited deliberate indifference by exposing Plaintiffs to an unnecessarily high risk of Valley Fever. See id. at ¶ 385 ("Exposure to this infection and its medical consequences was without penological justification"); see also Doc. 66 at 16. The Court therefore agrees with the Magistrate Judge's finding that "[a]s alleged in the complaint, Plaintiffs' claim is deliberate indifference to conditions of confinement." F & Rs at 30. Accordingly, Plaintiffs'
The F & Rs recommended that Defendant Winslow be dismissed from this case. F & Rs at 28. The Magistrate Judge found that Plaintiffs' conclusory allegation that "Defendant Winslow personally participated in CDCR's adoption of policies that allowed high risk inmates to continue to be transferred to these prisons" was unsupported with sufficient facts. Id. The Magistrate Judge further found that Plaintiffs' allegation that "Defendant Winslow issued a memorandum making recommendations to reduce the infection rate inside the prison" contradicts Plaintiffs' assertion that Defendant Winslow acted with deliberate indifference. Id.
The Court agrees with both of these findings. Accordingly, the Court GRANTS WITH LEAVE TO AMEND Defendant Winslow's motion to dismiss.
The F & Rs recommended that Defendant Igbinosa be dismissed from this case. F & Rs at 29. The Magistrate judge found that
Id. at 28.
The Court agrees with this finding. Plaintiffs have failed to allege any facts demonstrating that Defendant Igbinosa had any involvement or influence over prison-wide policies at PVSP. Plaintiffs only allege in conclusory fashion that Defendant Igbinosa "failed to take any actions to address the epidemic or to reduce inmate exposure to the disease" and was therefore "implicated in PVSP's failure to establish a prison-level policy of screening inmates and potential inmates for risk factors for Valley Fever." Compl. at ¶ 32. Accordingly, the Court GRANTS WITH LEAVE TO AMEND Defendant Igbinosa's motion to dismiss.
The F & Rs recommended that Plaintiffs' state law claim for negligence be dismissed because Plaintiffs fail to allege compliance with the California Tort Claim Act. F & Rs at 35. Specifically, the Magistrate Judge found that Plaintiffs were required to timely present their claims to the Victims Compensation Board ("the VCB") before filing this case. Id. Plaintiffs argue the California Tort Claim Act does not apply here. See Doc. 66 at 19-20.
Plaintiffs are mistaken. "To state a tort claim against a [public entity or] public employee, a plaintiff must allege compliance with the [California] Tort Claims Act." Green v. Chakotos, No. 1:11-CV-1611-LJO-DLB PC, 2014 WL 3563314, at *4 (E.D.Cal. July 18, 2014) (citing State v. Superior Court (Bodde), 32 Cal.4th 1234, 1245, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004); Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir.1995); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988)). Because Plaintiffs have not alleged compliance with the California Tort
Plaintiffs object to the F & Rs finding that Plaintiff Boyd's state law negligence claim is barred. Doc. 66 at 21; F & Rs at 35. Plaintiff Boyd timely filed a claim to the VCB on January 24, 2014, which was rejected on March 20, 2014, approximately one month after Plaintiffs filed this case. F & Rs at 36. Plaintiff Boyd was barred from filing a state law negligence claim prior to the VCB acting on or rejecting his claim. Bodde, 32 Cal.4th at 1245, 13 Cal.Rptr.3d 534, 90 P.3d 116. Accordingly, the Court GRANTS WITH LEAVE TO AMEND Defendants' motion to dismiss Plaintiff Boyd's negligence claim.
The F & Rs acknowledged that Defendant Schwarzenegger "was or should have been aware of the threat to high risk inmates," but recommended that he be dismissed on the ground that he "is not liable for the policies of CDCR where he did not participate in or direct the violations, nor knew of the violations and failed to act to prevent them." F & Rs at 26. The F & Rs found that Plaintiffs "fail[ed] to show that [Defendant Schwarzenegger] had any personal involvement in the policies that allowed such high risk inmates to be housed at PVSP or ASP." Id. The F & Rs further found that "[t]o the extent that Plaintiffs attempt to state a claim based solely upon the decision to house inmates in the endemic area, the ... complaint fails to state a claim ... [because] building a prison in the hyper-endemic area does not create a substantial risk of harm." Id. The F & Rs also found that Plaintiffs failed to allege facts showing that "Defendant Schwarzenegger was aware of any substantial risk of harm to inmates due to the decision to build next to PVSP ... [and] such claims are not properly joined in this action." Id. at 27.
To the extent the F & Rs found that Plaintiffs' claims against Defendant Schwarzenegger for condoning and/or authorizing the construction at PVSP were misjoined, the extent to which Plaintiffs allege the construction at PVSP injured them is unclear, as mentioned above. Accordingly, to the extent Plaintiffs' allege that Defendant Schwarzenegger violated their Eighth Amendment rights due to his involvement with the construction at PVSP, Plaintiffs fail to state a claim.
Likewise, Plaintiffs' conclusory allegations that Defendant Schwarzenegger "had the authority to establish the state's executive-branch policies and practices including those at CDCR" but that he
For the foregoing reasons, the Court ORDERS that
This is the last time amendment will be allowed. The Court neither has the time nor the responsibility to author amended complaints. Legal direction has been supplied herein — once.
