LAWRENCE J. O'NEILL, District Judge

Benjamin Laurence Pavone, Pavone & Fonner, David Elliot, Law Offices of David Elliot, San Diego, CA, Edward Burns, Burns & Schaldenbrand, Oceanside, CA, Gregg David Zucker, Victoria Elizabeth Niewrzol, Affeld Grivakes Zucker LLP, Los Angeles, CA, Matthew B. Pavone, Law Offices of Matthew B. Pavone, Novato, CA, for Plaintiffs.

David Eugene Brice, Maureen C. Onyeagbako, Department of Justice, Office of the Attorney General, Jon S. Allin, California Department of Justice, Michelle L. Angus, Attorney General's Office of the State of California, Sacramento, CA, Susan Eileen Coleman, Kristina Doan Gruenberg, Burke, Williams & Sorensen LLP, Los Angeles, CA, Benjamin Louis Stock, J. Leah Castella, Burke, Williams & Sorensen, LLP, Oakland, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE FINDINGS AND RECOMMENDATIONS (Doc. 164) RE DEFENDANTS' MOTIONS TO DISMISS (Docs. 138, 140)

LAWRENCE J. O'NEILL, District Judge

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. 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 developing 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 (1) violation of the Eighth Amendment and (2) negligence. See Doc. 113, Consolidated Amended Complaint (“CAC”), at 2. Plaintiffs' claims are premised on their assertion that Defendants' intentional actions and inaction unconstitutionally and negligently exposed them to an unreasonable risk of contracting Valley 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 Recommendations (“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 immunity 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 extend supplemental jurisdiction over Plaintiffs' negligence 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 Magistrate Judge's recommendations to dismiss without leave to amend Plaintiffs' Eighth Amendment claim and to decline supplemental jurisdiction over their negligence 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 Defendants 1–50. CAC at 6–7. Plaintiffs bring claims against Defendants for (1) violation of their Eighth Amendment rights and (2) negligence under California state law. 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 ¶¶ 1, 9. Specifically, Plaintiffs allege Defendants knew that housing inmates, like Plaintiffs, in prisons where Valley Fever was known to be hyper-endemic while failing to implement remedial and preventative measures to reduce inmate exposure to cocci “posed an unacceptable risk of irreparable harm.” Id. at ¶¶ 10, 12, 52. In addition, Defendants allowed “major construction” at the prisons, which churned the soil and released cocci into the air. Id. at ¶ 15. Plaintiffs' allegations are informed by, among other things:

a) review and analysis of public documents published by the State of California, Department 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 medical conditions and treatment described [in the CAC], and the individual defendants.

Id. at ¶ 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 ¶ 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 ¶ 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 ¶ 69. Further, the rate at PVSP was 6 times higher than the rate at the adjacent mental health facility. Id. at ¶ 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 ¶¶ 71, 81, 84, 86, 2633. African–Americans accounted for approximately 68% of those infected and died at approximately twice the rate of non-black inmates. Id. at ¶ 67. “In fact, African–American prisoners comprised 71% of the 34 Valley Fever deaths in CDCR prisons between 2006 and 2011.” Id. at ¶ 88. In 2013, medical experts found that 70% of the 36 inmate deaths caused by Valley Fever were African–Americans and 76% had an immune-compromised condition, such as HIV or diabetes. Id. at ¶ 2635.

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 court-appointed Receiver managing the California State prison system's health care program issued “Recommendations for Immediate Response to Coccidioidomycosis 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 ¶¶ 91, 128–29. Defendants failed to prevent Plaintiffs and other high-risk inmates from being housed at hyper-endemic prisons, although they had the means and ability to do so. Id. at ¶¶ 143, 145. Similarly, Defendants failed to implement remedial and preventative measures to reduce the risk of infection at the prisons, although they had the ability and means to do so. Id. at ¶¶ 179–80.

The thrust of Plaintiffs' Eighth Amendment claim is that Defendants knew of the “serious, epidemic level of risk of harm,” id. at ¶ 2598, posed by cocci at San Joaquin Valley prisons, yet consciously decided not to do anything to mitigate those risks or to protect Plaintiffs from them. Id. at 258; id. at ¶ 2648–49. “In fact, Defendants not only failed to implement remedial measures 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 ¶¶ 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 procedural and substantive reasons.

IV. STANDARD OF DECISION

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.” Balist r eri 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, 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 and plausibility for entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's 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, 167 L.Ed.2d 929 (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 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).

III. 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, 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 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, 114 S.Ct. 1970). “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’ justification for the deprivation, in spite of that risk.” Id. (citing Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (“[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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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 irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. (citation and quotation marks omitted). Accordingly, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al–Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (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, 100 S.Ct. 1920, 64 L.Ed.2d 572 (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.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir.2014). First, a court must determine whether the official violated the plaintiff's 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (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 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, 121 S.Ct. 2151. “[W]here there is no case directly on point, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” C.B. v. City of Sonora, 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. Pe a rce, 798 F.3d 881, 890 (9th Cir.2015) (citation omitted).

The Court recently found that some, but not all of the same Defendants were entitled to qualified immunity from materially identical claims brought against them. See Jackson v. Brown, No. 13–cv–1055, 2015 WL 5522088 (E.D.Cal. Sept. 17, 2015), amended by 134 F.Supp.3d 1237, 2015 WL 5732826 (E.D.Cal. Sept. 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 Amendment claim because the applicable law remains unsettled 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, 114 S.Ct. 1970, 128 L.Ed.2d 811, 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 14–15; 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, what the constitutional right at issue is in these cases, or whether Plaintiffs have pled a violation of their Eighth Amendment rights sufficiently. 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, 129 S.Ct. 808. Accordingly, the Court skips the first step of the Saucier qualified immunity analysis.

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, 121 S.Ct. 2151).

Plaintiffs' alleged injuries—exposure to and contraction of Valley Fever—occurred at different times. See, e.g., CAC at ¶¶ 233–38 (Plaintiff Aubrey alleging he was transferred to PVSP in January 2009, but does not allege when he contracted Valley Fever); id. at ¶¶ 254, 258 (Plaintiff Baker alleging he was transferred to ASP in July 2011 and contracted Valley Fever in “late 2011”); id. at ¶¶ 779–80 (Plaintiff Franklin alleging he was transferred to PVSP in January 2009 and diagnosed with Valley Fever in August 2010); id. at ¶ 1079 (Plaintiff Lavea alleging he was transferred to PVSP in 2008); id. at ¶ 1807 (Plaintiff Torres–Enos alleging he was transferred to PVSP in 2006); id. at ¶ 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 point in 2006. See, e.g., id. at ¶¶ 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. 1:13–cv–1590–AWI–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 v. California , 2015 WL 3953367, at *3 (E.D.Cal. June 6, 2015) (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, 798 F.3d at 890 (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.Appx. 518 (9th Cir.2010), the plaintiff brought, among other claims, an 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, 2009 WL 900654, 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 African–Americans, 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:

Plaintiff has failed to show that any of the named Defendants were deliberately indifferent to a serious risk of harm to Plaintiff's health. Plaintiff does not allege that 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. Plaintiff alleges only that Defendants are aware of the general presence 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.Appx. 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 [sic ] him to relief.” Id. (citing Helling, 509 U.S. at 25, 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”)). The Ninth Circuit therefore vacated and remanded the case “with instructions to allow [the plaintiff] the 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.” Id.

Similarly, the Ninth Circuit reversed this Court with a one-page decision in Johnson v. Pleasant Valley State Prison, 505 Fed.Appx. 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 v. Pleasant Valley State Prison, No. 1:11–CV–00191–LJO, 2012 WL 1297380, at *1 (E.D.Cal. April 16, 2012). 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 memorandums 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 violation of the Eighth Amendment's prohibition 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 constituted a danger to Plaintiff's 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 Plaintiff's 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, 114 S.Ct. 1970, 128 L.Ed.2d 811, and Helling, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22, the plaintiff argued that the defendants exhibited deliberate indifference to him by placing him at an excessive risk of contracting Valley Fever while incarcerated at PVSP. Id. at 2–3. This Court adopted the Magistrate Judge's F & Rs in full and dismissed the plaintiff's sole Eighth Amendment claim. See No. 1:11–CV–191–LJO–BAM PC, 2012 WL 1297380, Johnson v. Pleasant Valley State Prison, Doc. 15.

The Ninth Circuit reversed, holding that

dismissal of [the plaintiff's] 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (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.Appx. at 632.

In Johnson, the Ninth Circuit “express[ed] no opinion as to the sufficiency or merit of [the plaintiff's] 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 Amendment.” Doc. 164 at 36 n.5; Smith, 393 Fed.Appx. 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, particularly 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 unpublished decisions only.” Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir.2002). In short, the Ninth Circuit's 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 overwhelmingly 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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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. Judges also have disagreed as to 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. Notably, Plaintiffs acknowledge both of these instances of disagreement. See Doc. 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 plaintiff's heightened susceptibility to Valley Fever satisfies Farmer 's 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. 1:09–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., Tholmer v. Yates, No. 1:06–cv–1403–LJO–GSA, 2009 WL 174162, at *3 n.3 (E.D.Cal. Jan. 26, 2009) (“Plaintiff does not allege that the acts 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–1404–DGC, Doc. 1 at 7. The plaintiff alleged the defendants knew that (1) 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 probability” 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 7–18. 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 Afro–Americans and Filipinos are at greater risk of complications from [Valley Fever].” No. 08–cv–163–LJO–SKO PC, 2010 WL 2838617, at *2 (E.D.Cal. July 19, 2010), aff'd, 467 Fed.Appx. 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 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 plaintiff's allegations in Ayala were largely the same as those in Jones. See 2011 WL 4527464, at *1. Although Ayala did not allege that certain individuals 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 plaintiff's 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 “[c]laims 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 being sent to a “hyperendemic” area institution, 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 Coccidioidomycosis 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 Amendment 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 responsible 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 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 hospitalized 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 plaintiff's 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. 1:10–cv–1351–LJO–GBC (PC), 2011 WL 2446372, at *5 (E.D.Cal. June 15, 2011) (allegation that diabetes made the plaintiff more susceptible to contracting Valley Fever did not support Eighth Amendment claim).

For similar reasons, the court dismissed without leave to amend the plaintiff's Eighth Amendment claim 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 plaintiff's] health.” Id. at *3. Although the plaintiff's 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.” Id. at *3.

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. 1:14–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. 1:07–cv–151–AWI–SMS–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. 1:08–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. 1:14–cv–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 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. “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, 119 S.Ct. 1692; 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 regulations was not clearly established.”).

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, 119 S.Ct. 1692. 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, 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 harm from [Valley Fever] becomes sufficiently substantial for Eighth Amendment purposes.’ ” Estate of Ford, 301 F.3d at 1051 (quoting Farmer, 511 U.S. at 834 n. 3, 114 S.Ct. 1970)). 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.