ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS THE ACTION BE GRANTED

(Doc. Nos. 33, 40)

DALE A. DROZD, District Judge.

Plaintiff Morris Roberson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On July 17, 2019, the assigned magistrate judge issued findings and recommendations, (Doc. No. 40), recommending that defendant's motion to dismiss, (Doc. No. 33), be granted. The findings and recommendations were served on plaintiff and contained notice that objections were due within twenty-one (21) days. No objections have been filed and the time to do so has passed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of this case. Defendants argue that because it was not clearly established that prisoners had a right to be free from the risk of exposure to valley fever, defendant Pfeiffer is entitled to qualified immunity on plaintiff's Eighth Amendment claim. (Doc. 33-1 at 5.) Defendants point to the Ninth Circuit's decision in Hines v. Youseff, 914 F.3d 1218 (9th Cir. 2019), noting that the court found it was not "obviously unlawful" for prison officials to expose individuals to the risk of contracting valley fever. (Id.)

In Hines, a consolidated appeal, the plaintiffs challenged the constitutionality of housing inmates in a hyperendemic area for Valley Fever under the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's Equal Protection Clause. 914 F.3d at 1226-27. The Ninth Circuit defined the Eighth Amendment right at issue in the consolidated appeals before it as "the right to be free from heightened exposure to Valley Fever spores." Id. at 1228. The Ninth Circuit in Hines concluded that such a constitutional right was not clearly established at the time the defendant officials acted.1

The undersigned pauses to note that in Hines, the Ninth Circuit did not decide whether exposing inmates to a heightened risk of Valley Fever violates or could ever violate the Eighth Amendment. Id. at 1229 ("The courts below did not decide whether exposing inmates to a heightened risk of Valley Fever violates the Eighth Amendment. Neither do we.").2 Instead, the Ninth Circuit, like the courts below, proceeded "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" the officials in the cases before the court had acted. Id.;3 see also Saucier v. Katz, 533 U.S. 194, 201 (2001) (establishing the two-part inquiry for qualified immunity: (1) whether the alleged facts violate the Constitution, and (2) if so, whether the constitutional right at issue was clearly established at the time of the violation).

That said, plaintiff's allegations in this case provide no basis upon which to depart from the qualified immunity analysis set forth in Hines. Plaintiff's operative first amended complaint alleges the following facts relevant to resolution of the pending motion to dismiss. At all times relevant, plaintiff was a prisoner housed at Kern Valley State Prison ("KVSP"). (Doc. No. 14 at 1.) Plaintiff asserts that the soil surrounding KVSP is "densely contaminated with Valley Fever fungus," and that defendant Pfeiffer knew—as early as 2006—that KVSP is a "cocci hot spot." (Id. at 10-12.) Likewise, plaintiff claims that defendant Pfeiffer was aware that African-Americans and Asian-Americans are at greater risk of contracting the disseminated form of valley fever. (Id.) Nonetheless, plaintiff alleges, defendant Pfeiffer failed to implement any policy to lessen the effects of, and failed to take even the most basic precautions to protect him from exposure to, valley fever. (Id. at 10-12, 16-17.) Although he does not specifically allege that he contracted valley fever at KVSP, plaintiff does assert that he was injured as the result of defendant Pfeiffer's failure to protect him from exposure to valley fever. (Id.)

Because plaintiff's allegations provide no basis upon which to distinguish the Ninth Circuit's binding decision in Hines or the qualified immunity analysis set forth therein, the undersigned concludes that defendants' motion to dismiss must be granted.

Accordingly:

IT IS SO ORDERED.