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finding plaintiff stated Eighth Amendment claims based on his transfer to a prison in the Valley Fever zone
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CASE No. 1:15-cv-01609-DAD-MJS (PC)
08-16-2016
DAVID ALLEN, Plaintiff, v. NORM KRAMER, et al., Defendants.
ORDER
(1) GRANTING MOTION FOR RECONSIDERATION, (2) VACATING MARCH 28, 2016, SCREENING ORDER; AND
(3) DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED ON THE COMPLAINT AS SCREENED IN THIS ORDER
(ECF NO. 9)
THIRTY-DAY DEADLINE
I. Introduction
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On March 28, 2016, the undersigned screened Plaintiff's complaint and dismissed it with leave to amend for failure to state a claim. Plaintiff has now filed a document titled "Plaintiff's Opposition Motion to the Amendment of the Complaint," which the Court construes as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60 and Eastern District of California Local Rule 230(j). (ECF No. 9.)
II. Plaintiff's Allegations
Plaintiff is an African-American male housed at Coalinga State Hospital ("CSH") in Coalinga, California pursuant to the Sexually Violent Predator Act. He brings a number of federal and state law claims against Norm Kramer, ex-Director of CSH; Pam Ahlin, Executive Director of California Department of State Hospitals ("CDSH"); Cliff Allenby, ex-Executive Director of CDSH; Stephen Mayberg, ex-Executive Director of CDSH; Jerry Brown, Governor of California; and Fresno County Board of Supervisors. He names the Defendants in their personal and official capacities.
The gravamen of Plaintiff's claims is that Defendants built and housed inmates like him in a facility located in an area known to be hyper-endemic for contraction of Valley Fever, an infection caused by exposure to coccidioides (also called coccidioidomycosis) fungus, and failed to take reasonable steps to protect him from the disease.
Plaintiff's specific allegations may be summarized as follows:
CSH is located in Pleasant Valley in Central California. Defendants have been aware of the prevalence and danger of Valley Fever in Pleasant Valley since as early as 1991 following reports and litigation related to the presence of the disease-causing fungus in the dust at and near Pleasant Valley State Prison ("PVSP"), which is located next to CSH. Despite this knowledge, they approved the construction of CSH in 2002 and/or Plaintiff's transfer to CSH in 2004. They have also failed and are continuing to fail to take adequate measures to limit the exposure of individuals like Plaintiff who have a heightened susceptibility to the disease based on ethnicity.
It is not entirely clear when Plaintiff was transferred to CSH. The complaint includes a year which can be read as either "2004" or "2007." See Compl. ¶ 29.
It does not appear that Plaintiff has contracted Valley Fever. Instead, he seeks to impose liability based on the increased potential for future harm following his transfer to CSH. He states that Defendants "subjected him to an endemic form of Valley Fever, Arthoeonidia, which takes root within the lungs if breathed." Compl. ¶ 3. He also states that "all Defendants are rightfully liable for every present and future injury suffered by Plaintiff in the dangerous environment which is a serious health risk to his life and mental state. Id. ¶ 22. Later, he contends that he "is held in an environment that could potentially cause him to experience a permanent crippling physical injury if infected." Id. ¶ 30.
As to specific Defendants' participation in the violation of Plaintiff's rights, Plaintiff alleges as follows:
Defendant Mayberg approved the construction of CSH in an area known to be hyper-endemic for Valley Fever despite knowledge of its life-threatening danger. Compl. ¶ 9.
Defendant Fresno Board of Supervisors approved the construction of CSH in Pleasant Valley despite knowledge of the dangers of Valley Fever in the region. Compl. ¶ 12.
Defendant Jerry Brown, as the Governor of California, had the final authorization on land development. Compl. ¶ 13. He knew based on scientific knowledge then in existence of the dangers of building an institution in Pleasant Valley but approved the construction nonetheless. "[I]f Defendant was not aware of the danger than [sic] he would have known after he took office as California's Governor." Id.
Defendants Kramer and Ahlin were "in the seat of authority" when Plaintiff was transported to CSH. Compl. ¶¶ 7-8.
Defendant Allenby, who exercised authority over California's mental health institutions, including CSH, "took no precaution to protect patients or employees at the institution from the formidable dangers the location presented." Compl. ¶ 10.
Defendant King was "in the seat of the authority" at CSH when Plaintiff discovered the dangers of Valley Fever. Comp. ¶ 11. Despite knowledge of the dangers of the disease, she did not disclose them to the patients at the hospital. Id.
Plaintiff seeks damages, injunctive relief, and a declaratory judgment.
III. Motion for Reconsideration
A. Relevant Background
Plaintiff initiated this action on October 22, 2015. On March 28, 2016, the Court screened the complaint and dismissed it, with leave to amend, for failure to state a claim. The undersigned determined that Defendants were entitled to qualified immunity to the claims as pled; it found they could not then be held liable for a violation of a right that was not clearly established at the time the violation occurred. The undersigned found not clearly established law that gave inmates the constitutional right not to be housed in facilities located in areas hyper-endemic for contraction of Valley Fever. See Jackson v. Brown ("Jackson I"), No. 1:13-cv-01055-LJO-SAB, 2015 WL 5522088 (E.D. Cal. Sept. 17, 2015), modified by Jackson v. Brown ("Jackson II"), 134 F. Supp. 3d 1237 (E.D. Cal. Sept. 28, 2015); see also Smith v. State of California, Case No. 1:13-cv-0869-AWI-SKO, 2016 WL 398766 (E.D. Cal. Feb. 2, 2016).
Plaintiff was granted leave to amend. He was advised that any amendment should allege facts (not mere assumption or speculation) reflecting that one or more Defendants was aware that Plaintiff, because of his age, race or other personal characteristic, was at high risk of contracting Valley Fever; that CHS was constructed, situated and managed so as to expose its inmates to excessively high or dangerous levels of Valley Fever spores, and Defendant(s) ignored that risk and failed to take available steps to protect Plaintiff from it; and that the result was that Plaintiff did in fact contract Valley Fever or suffer some other cognizable harm.
On April 25, 2016, Plaintiff filed the instant motion arguing that dismissal of his complaint was improper in light of two recent unpublished Ninth Circuit decisions holding that claims similar to Plaintiff's are sufficient to proceed to service. He also argues that his Equal Protection claim is viable and must be allowed to proceed.
B. Legal Standards
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances ..." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control .... " Id. (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(j) requires Plaintiff to show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."
"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and "[a] party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation ..." of that which was already considered by the Court in rendering its decision," U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).
C. Discussion
1. Plaintiff's Motion
In his motion for reconsideration, Plaintiff argues that the allegations in the complaint are sufficient to proceed to service under the doctrine of stare decisis in light of two unpublished Ninth Circuit decisions, Samuels v. Ahlin, 584 Fed. Appx. 636 (9th Cir. Aug. 21, 2014), and Sullivan v. Kramer, 609 Fed. Appx. 435 (9th Cir. June 22, 2015). In Samuels, the appellate court reversed the dismissal of plaintiff's unsafe conditions claim as premature. There, the civil detainee plaintiff who contracted Valley Fever "alleged that defendants knew of the life-threatening risk of building Coalinga State Hospital in a highly endemic area for valley fever, but nonetheless approved or failed to stop the facility's construction." 584 Fed. Appx. at 637. The court held that these allegations were "'sufficient to warrant ordering 'defendants' to file an answer."" Id. (citing Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012)). Similarly, in Sullivan, a civil detainee who was merely at a higher risk for contracting Valley Fever but who had not contracted it alleged an unsafe conditions claim premised on defendant Allenby's knowledge "of the life-threatening dangers of valley fever at the state hospital but failed to take any preventative measures to protect Sullivan, and that the risk prevention techniques substantially departed from generally accepted standards." 609 Fed. Appx. at 435. The court found these allegations were also sufficient to warrant service. See id. Plaintiff asserts that the allegations in his complaint mirror those asserted in Sullivan and Samuels and thus should be deemed sufficient to proceed to service.
Samuels and Sullivan are unpublished decisions and not, as Plaintiff argues, binding on this Court. Pursuant to Ninth Circuit Rule 36-3, "Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion."
Indeed, judges in this District, including the undersigned in deference to the holdings of District Judges to which cases were assigned, have declined to follow Samuels and Sullivan. Specifically, the Honorable Anthony W. Ishii and the Honorable Lawrence J. O'Neill have both concluded that allegations such as Plaintiff's, and such as those presented in Samuels and Sullivan, generally fail on qualified immunity grounds. See Jackson II, 134 F. Supp. 3d 1237; Smith, 2016 WL 398766. Following their reasoning, the undersigned dismissed Plaintiff's complaint on this ground, albeit with leave to amend.
2. Reconsideration Appropriate
Since Plaintiff does not address the substantive qualified immunity issues in his motion, the Court is not required to reconsider that portion of its decision. Nonetheless, a court has discretion to depart from the law of the case doctrine if: (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. See United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (citation omitted), 147 F.3d at 1114 (citation omitted); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) ("A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was "clearly erroneous and would work a manifest injustice.") (Internal citation omitted). In this case, the Court concludes that reconsideration is necessary to prevent manifest injustice.
Under the law of the case doctrine, "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (citation omitted).
3. Qualified Immunity Generally
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). It determines if the facts as alleged state a violation of a constitutional right and if the right is clearly established 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. 2010) (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).
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). It is the Plaintiff who bears the burden of demonstrating that the right was clearly established at the time that the defendants acted. May v. Baldwin, 109 F.3d 557, 561 (9th Cir. 1997). 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). 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. Hope, 536 U.S. at 741. The unlawfulness of the official's act must be apparent in light of the preexisting law. Id, at 739. 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 of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002).
Qualified immunity shields an official from personal 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 determining 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 ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1060-61 (9th Cir. 2003)).
In determining if the law is clearly established, the Court first looks to binding precedent. Chappell, 706 F.3d at 1056. If there is none on point, the Court will then look to other decisional law, including the law of other circuits and district courts. Id. at 1056; Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996).
4. The Protected Right
The starting point in any qualified immunity analysis is defining the particular constitutional right at issue. The Supreme Court has repeatedly reminded us that we are not to define "clearly established" at a high level of generality. Ashcroft v. al-Kidd, 563 US 731, 741 (2011). To do so "would destroy 'the balance that our cases strike between the interests in vindication of citizens' constitutional rights and in public officials' effective performing of their duties,' by making it impossible for officials 'reasonably [to] anticipate when their conduct may give rise to liability for damages.'" Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citation omitted). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in light of pre-existing law the unlawfulness must be apparent." Id. at 640.
In those Valley Fever cases that have reached the question of qualified immunity, the constitutional right has been defined as an inmate's right to be free from exposure to the environmental toxin, coccidiomycosis. See, e.g., Jackson I, 2015 WL 5522088, at *17 ("[T]he constitutional right at issue in this case must take into account the specific Valley Fever context in which this case arose"), overruled on other grounds by Jackson II; Smith v. Schwarzenegger, Case No. 1:14-cv-60-LJO-SAB, 137 F. Supp. 3d 1233, 1243 (E.D. Cal. Oct. 7, 2015), appeal docketed Case No. 15-17155 (9th Cir. Oct. 29, 2015) (defining the right in the context of "an inmate's exposure to cocci while incarcerated"); Jackson II, 134 F. Supp. 3d at 1238 (same); Smith, 2016 WL 398766, at *3 (noting "the lack of authority delineating the contours of the rights of inmates vis-à-vis exposure to coccidiomycosis."). See also Hines v. Youssef, Case No. 1:13-cv-0357-AWI-JLT, 2015 WL 2385095, at *9 (E.D. Cal. May 19, 2015), appeal docketed, No. 15-16145 (9th Cir. June 8, 2015) ("[I]n the context of the application of criteria for exclusion from endorsement to prisons in the cocci hyper-endemic zone in 2008, the right to exclusion on account of any factors not previously recommended by an authoritative source or ordered by the receiver prior to the time of endorsement was not clearly established.")
Under this factually specific definition, it is true that there is no controlling authority regarding an inmate's right to be free of exposure to coccidiomycosis, and it is also true 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 Jackson II, 134 F. Supp. 3d at 1240 (citing Jones v. Hartley, Case No. 1:13-cv-1590-AWI-GSA, 2015 WL 1276708, at *2-3 (E.D. Cal. Mar. 19, 2015) (collecting cases)).
But this level of specificity is precisely the type cautioned against by the Supreme Court. Determining whether the contours of a right are sufficiently clear does "not require a case directly on point." al-Kidd, 563 U.S. at 741. Rather, it requires that "existing precedent must have placed the statutory or constitutional question beyond debate." Id. In that regard, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 US 730, 741 (2002). Indeed, the earlier cases need not even have facts that are "fundamentally similar" or "materially similar." See id. Though such cases "can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding." Id.
Consistent with other judges in this District, this Court declines to define the constitutional right at a high level of generality. That is to say, the right cannot be defined as the right to be free from mere exposure to all environmental toxins. However, the undersigned also declines to swing the pendulum the other way and define the right at a highly specific level relating only to the particular toxin at issue here, i.e., coccidiomycosis. To be so fact-specific would likely entitle a defendant to qualified immunity in every novel factual scenario. This Court thus settles on a definition that falls somewhere in between:
Plaintiff has a right to be free from exposure to an environmental hazard that poses an unreasonable risk of serious damage to his health whether because the levels of that environmental hazard are too high for anyone in Plaintiff's situation or because Plaintiff has a particular susceptibility to the hazard.
This definition takes into account the facts of this case without being overly and unnecessarily specific. It also stems directly from the holding of Helling v. McKinney, 509 U.S. 25 (1993), which the Court concludes "placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741. In Helling, the inmate-plaintiff alleged that the defendants assigned him to a cell with another inmate who smoked five packs of cigarettes a day. 509 U.S. at 28. At issue was whether this exposure to environmental tobacco smoke ("ETS") violated the plaintiff's Eighth Amendment rights even though Plaintiff had alleged only future harm. The Court found that it could violate Plaintiff's rights despite the absence of an existing injury:
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe
drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.Id. at 33 (emphasis added). Noting with approval the Government's argument as amicus curiae "that there may be situations in which exposure to toxic or other substances would 'present a risk of sufficient likelihood or magnitude—and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented,'" id. at 35 (latter emphasis in original), the Court ultimately 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 ETS that pose an unreasonable risk of serious damage to his future health." Id.
Though Helling directly addressed an inmate's exposure to ETS, it tacitly acknowledged other situations in which environmental factors can pose an unreasonable risk to an inmate's health, including exposure to "infectious maladies such as hepatitis and venereal disease" caused by overcrowding, unsafe drinking water, and "toxic or other substances." 509 U.S. at 33, 35. Along these lines, courts have relied on Helling to hold that an inmate has the right to be free from exposure to another environmental toxin, asbestos. In Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995), for example, the Ninth Circuit was asked to consider whether the district court improperly entered summary judgment for the defendants on plaintiff's Eighth Amendment conditions of confinement claim: "[T]he critical question before the district court was whether the defendants acted with 'deliberate indifference' in exposing Wallis to the asbestos in the [prison's] attics." Id. at 1076 (citing Helling). Noting that "[i]t is uncontroverted that asbestos poses a serious risk to human health," the Court reversed the grant of summary judgment after concluding that the evidence established that the defendants knew of the existence of the asbestos in the attic and the threat to the inmates' health from exposure to it but nonetheless forced plaintiff to clean the attic without protection. Id. See also McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993) (finding that plaintiff's claim of mere exposure to asbestos insufficient to state a claim under Helling); Doyle v. Coombe, 976 F. Supp. 183, 188 (W.D.N.Y. 1997) ("It was not until 1993 that the United States Supreme Court held [in Helling] that an Eighth Amendment claim may be established from exposure to substances which might cause a delayed injury."); Gonyer v. McDonald, 874 F. Supp. 464, 466 (D. Mass. Feb. 1, 1995) (citing Helling in finding a cognizable Eighth Amendment claim for exposure to asbestos); Carter v. Smith, 2015 WL 4322317, at *7 (N.D. Cal. July 15, 2015) ("Exposure to toxic substances may be a sufficiently serious condition to establish the first prong of an Eighth Amendment claim, depending on the circumstances of such exposure, as explained by the Supreme Court in Helling .... Although Helling was a second-hand smoke case, the rule also applies to asbestos exposure.")
Some courts, on the other hand, have relied solely on Estelle v. Gamble, 429 U.S. 97, 104 (1976), to define the right of an inmate vis-à-vis exposure to asbestos. In Powell v. Lennon, 914 F.2d 1459, 1463-64 (11th Cir. 1990), where the plaintiff claimed that the defendants forced him to remain in a dormitory that was filled with friable asbestos, the Eleventh Circuit held that the law was clearly established that an inmate has the right to be free from deliberate indifference to his serious medical needs. The court then held that the defendants were not entitled to qualified immunity because they violated this right by refusing to place the plaintiff in an asbestos-free environment after plaintiff complained of the risk to his life and health. Similarly, in LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998), where the plaintiff alleged that the defendants violated his constitutional rights by housing him in a facility with the presence of friable asbestos particles in the air, the Second Circuit rejected the defendants' framing of the right as "the right to be free from crumbling asbestos." "Such a restricted view of the right conflates the specific conduct at issue with the defined right running afoul of this Court's recognition that '[a] court need not have passed on the identical course of conduct in order for its illegality to be 'clearly established.'' ... Instead, we find that the right to be free from deliberate indifference to serious medical needs, established in Estelle v. Gamble, 429 U.S. 97, 104 (1976), best encompasses the alleged conduct." 137 F.3d at 74. The court thus held that, "Given the known dangers of friable asbestos in 1991-1995, we hold that a reasonable person would have understood that exposing an inmate to friable asbestos could violate the Eighth Amendment." Id. (footnote omitted).
Helling has also been cited in cases involving exposure to other environmental factors claimed to pose an unreasonable risk of harm to health, including contagious diseases caused by overcrowding conditions, Brown v. Mitchell, 327 F. Supp. 2d 615, 650 (E.D. Va. July 28, 2004); contaminated water, Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001); compelled use of chemical toilets, Masonoff v. DuBois, 899 F. Supp. 782, 797 (D. Mass. Sep. 11, 1995) ("[I]f the future harm resulting from exposure to second-hand smoke can give rise to an Eighth Amendment violation, then surely daily contact with a hazardous substance which causes rashes, burning, tearing eyes and headaches meets the objective part of the test for a violation of the Eighth Amendment."); paint toxins, Crawford v. Coughlin, 43 F. Supp. 2d 319, 325 (W.D.N.Y. 1999); and other inmates' blood, Randles v. Singletary, 2001 WL 1736881, at *2 (M.D. Fla. Aug. 10, 2001).
5. Clearly Established Right
Of course, there remains the question of whether someone in Defendants' position would have understood that their conduct was within the scope of the established prohibition. As to this question, the Court cannot say categorically or at all at this stage of the proceedings that it was objectively reasonable for Defendants to believe that housing inmates in an area hyper-endemic for Valley Fever was constitutional, or that housing inmates with a heightened susceptibility to Valley Fever in an area hyper-endemic for Valley Fever was constitutional, or that failing to implement measures to limit exposure of inmates with heightened susceptibility to Valley Fever was constitutional.
It has long been recognized that exposure to coccidioidomycosis can be dangerous and, in some cases, fatal. See Zurich Ins. Co. v. Sigourney, 278 F.2d 826, 828 (9th Cir. 1960) ("There seems to be no doubt that appellee Sigourney is now totally disabled from a disease known as coccidioidomycosis— called on the West Coast 'San Joaquin Valley Fever,' since it is endemic to that area of California."). See also Crim v. Int'l Harvester Co., 646 F.2d 161, 162 (5th Cir. May 21, 1981) ("Valley fever is a disease caused by spores found near the surface of the desert soil or, according to plaintiff's expert, in the air when the soil is disturbed by human activity. Most of those who contract valley fever have mild symptoms or no symptoms at all; they recover completely and are thereafter immune. Sometimes, however, valley fever is more severe. When it takes the disseminated form, which means the disease spreads to areas outside the lung, an estimated 50% of the infected die.") The Ninth Circuit recently relied on a 1994 report issued by the Center for Disease Control and Prevention in finding that "'[s]ymptomatic coccidioidomycosis, which occurs in approximately 40% of all infections, has a wide clinical spectrum, including mild influenza-like illness, severe pneumonia, and disseminated disease.'" Edison v. United States, 822 F.3d 510, 514 (9th Cir. May 20, 2016) (citing Morbidity and Mortality Weekly Report: Coccidioidomycosis—California, 1991-1993, Ctr. for Disease Control & Prevention (Jun. 17, 1994), http://www.cdc.gov/mmwr/preview/mmwrhtml/00031453.htm).
Plaintiff also attaches to his complaint several reports suggesting that the dangers of Valley Fever—both in general and as to specific groups of people—were widely known before CSH was constructed and before Plaintiff was transferred there. For example, a 2000 report issued by the United States Geological Survey, discusses the dangers of Valley Fever and notes specifically that "[p]regnant women, African-Americans, Filipinos, and possibly Asians, Hispanics, and Native Americans have higher rates of dissemination of the disease." Compl., Attach. (ECF No. 1 at 40.) An undated journal article or abstract published in the Annals of the New York Academy of Sciences titled Coccidioidomycosis in California State Correctional Institutions and written by the University of California, Davis, Coccidioidomycosis Serology Laboratory, compiled data from Central California prisons through 2005 and noted the high levels of Valley Fever contraction amongst inmates housed in Pleasant Valley and particularly inmates from certain ethnic populations. Id. (ECF No. 1 at 52-68).
It thus appears, as it did in the ETS context, that the serious risk of Valley Fever to human health is uncontroverted. See Wallis, 70 F.3d at 1077. Accordingly, based on the foregoing, and construing the facts in Plaintiff's favor, the Court finds that its dismissal of Plaintiff's complaint at the screening stage on grounds of qualified immunity was improper. The Court will therefore proceed to screening Plaintiff's complaint.
IV. Screening of Complaint
A. Screening Requirement
The in forma pauperis statute provides, "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Pleading Standard
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merelyprovides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
C. Analysis
1. Eleventh Amendment Immunity
"The Eleventh Amendment bars suits for money damages in federal court against a state [and] its agencies . . . ." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Even where the state is not named in the action, if the state is the real, substantial party in interest it is entitled to invoke Eleventh Amendment immunity. Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment does not immunize the State from suits seeking prospective injunctive relief. Jackson v. Hayakawa, 682 F.2d 1344, 1351 (9th Cir. 1982). Nor does the Eleventh Amendment bar suits seeking damages from public officials acting in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991). "Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25.
Plaintiff is suing all of the Defendants in their official and individual capacities. Insofar as Plaintiff seeks monetary relief from Norm, Pam Ahlin, Cliff Allenby, Stephen Mayberg, and Jerry Brown in their official capacities, he is barred by the Eleventh Amendment. He is not, however, barred from bringing suit against the members of the Fresno County Board of Supervisors in their official capacity. See Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) ("The [E]leventh [A]mendment does not bar actions against cities and counties.").
2. Supervisory Liability
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
To the extent that Plaintiff alleges liability under § 1983 based on Defendants' roles as supervisory officials, the Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 677. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 676. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct. Id. at 677. Accordingly, Plaintiff fails to state a claim against any of the Defendants in their supervisory capacities.
3. Eighth Amendment Conditions of Confinement
The Eighth Amendment protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for a violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Plaintiff here claims that the decisions to build CSH in 2002 in an area known to be hyper-endemic for Valley Fever and to transfer him to CSH in 2007 violates the Eighth Amendment in light of his increased susceptibility to contracting the disease. He also claims that the Defendants' failure to implement measures to limit his exposure to Valley Fever while at CSH violates his Eighth Amendment rights, again given his increased susceptibility to the disease. The Court concludes that these claims are sufficient to allege that Plaintiff faced a substantial risk of serious harm. Helling, 509 U.S. at 35.
The Court next addresses the issue of whether Plaintiff's pleading adequately alleges that any of the Defendants were deliberately indifferent to that substantial risk of serious harm.
According to the Complaint, Plaintiff alleges that Defendants Mayberg and the Fresno County Board of Supervisors approved the construction of CSH in an area which is described, alternately, as "endemic" and "hyper-endemic" for Valley Fever. A complaint premised only on the construction of CSH in an area that is merely endemic for Valley Fever, as much of the Central valley of California is reputed to be, likely would not survuve screening; only exposure to unreasonably high levels of an environmental hazard are actionable. See Helling, 509 U.S. at 35 (plaintiff must "establish that it is contrary to current standards of decency for anyone to be so exposed against his will"). Liberally construing the complaint, though, the Court finds that Plaintiff has sufficiently alleged that these Defendants approved the construction of CSH in an area known to be hyper-endemic for Valley Fever and despite knowledge that the levels of cocci present there posed an unreasonable risk of harm to inmates and employees alike. See, e.g., Compl. ¶ 9 ("Before the state facility was constructed next to PVSP, Defendant Mayberg was aware of the hazardous and life-threatening danger of building a facility on a site regularly immersed in airborne dust that contain spores of Coccidicides immitis. Yet he recklessly gave written approval to the building of the state hospital on a highly endemic area for Valley Fever, in spite of the formidable dangers the location site presented."), ¶ 12 ("Plaintiff claims that prior to the breaking of ground to build CSH, the Defendants Board Members were admonished of the future dangers, but did not relent to block construction of the facility.") (emphases added) Based on these allegations and the information included in the attachments to the complaint, it can be inferred that Defendants Mayberg and the Fresno County Board of Supervisors approved the construction of CSH in the so-called "eye of the storm." The Court finds these allegations sufficient to proceed to service.
Turning next to Defendants Kramer and Ahlin, who were "in the seat of authority" when Plaintiff was transported to CSH, it can be inferred from the complaint and the attachments that these Defendants knew that Valley Fever posed an unreasonable risk of harm to individuals of Plaintiff's ethnicity and that their failure to exclude individuals like him from transfer and/or to implement adequate measures to limit exposure to Valley Fever at CSH amounted to deliberate indifference. Likewise, the Court finds that Plaintiff states a claim against Defendant Allenby, who despite knowledge of the dangers of Valley Fever, "took no precaution to protect patients or employees at the institution from the formidable dangers the location presented." Compl. ¶ 10.
However, Plaintiff's claim against Governor Brown must be dismissed. Plaintiff asserts that this Defendant, as the Governor of California, had the final authorization on land development, and that, even "if Defendant was not aware of the danger [of Valley Fever when he became Governor,] than [sic] he would have known after he took office as California's Governor." These allegations are found to be far too speculative and conclusory to state a claim.
Plaintiff's claim against Defendant King must also be dismissed because Plaintiff's only allegation as to her is that she did not disclose the dangers of Valley Fever to patients at CSH. Comp. ¶ 11. This does not establish deliberate indifference.
In sum, the Court finds that the allegations in the complaint are sufficient to proceed to service against Defendants Mayberg, the Fresno County Board of Supervisors, Kramer, and Ahlin. Plaintiff's claim against Defendants Brown and King, however, should be dismissed.
4. First Amendment
Plaintiff also cites to the First Amendment when discussing the lack of medical treatment. There are no allegations in his complaint, however, to support a claim under any provision of the First Amendment.
5. The Americans with Disabilities Act
Plaintiff makes multiple passing references to the Americans with Disabilities Act ("ADA"). Title II of the ADA "prohibit[s] discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952, 1955 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996). "To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities; and (3) such exclusion or discrimination was by reason of [his] disability." Lovell, 303 F.3d at 1052.
The basis of Plaintiff's ADA claim is not entirely clear. He alleges that the ADA was violated when he was housed in an area where Valley Fever was prevalent, preventing him from participating in normal, everyday activities outside of the hospital. These vague allegations are not sufficient to state a claim under the ADA. Plaintiff has not alleged that he is a qualified individual with a disability under the ADA, or that he was improperly excluded from participation in, and denied the benefits of, a prison service, program, or activity on the basis of his physical handicap. Therefore, Plaintiff fails to state a claim under the ADA.
6. Fourteenth Amendment Equal Protection
The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, INc., 473 U.S. 432, 429 (1985). An equal protection claim may be established in two ways. First, a plaintiff establishes an equal protection claim by showing that the defendant has intentionally discriminated against him on the basis of the plaintiff's membership in a protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this theory of equal protection, the plaintiff must show that the defendants' actions were a result of the plaintiff's membership in a suspect class, such as race. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
Absent an allegation that Plaintiff is a member of a protected class or that Defendants acted on the basis of his status as a member of a protected class, Plaintiff may only establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 (1972); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004). To state an equal protection claim under this theory, a plaintiff must allege that: (1) the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated differently from others similarly situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook, 528 U.S. at 564.
Plaintiff alleges that the medical policies, practices, and lack of medical personnel at CSH are a result of discrimination against the mental health patients at CSH who are held pursuant to the Sexually Violent Predator Act. A person with a mental disability, whether perceived or actual, is not in a protected class under the Equal Protection Clause. City of Cleburne, 473 U.S. at 442. However, the Equal Protection Clause prohibits irrational and invidious discrimination against them. Dare v. California, 191 F.3d 1167, 1174 (9th Cir. 1999). The disabled plaintiff must have been treated differently than others similarly situated, by reason of the plaintiff's classification. Lee, 250 F.3d 668, 687 (9th Cir. 2001). "'Discriminatory purpose' ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r of Mass. V. Feeney, 442 U.S. 256, 279 (1979) (internal citation omitted).
Plaintiff has not alleged any facts demonstrating that he was intentionally discriminated against on the basis of his membership in a protected class, or that he was intentionally treated differently than other similarly situated inmates without a rational relationship to a legitimate state purpose. Therefore, Plaintiff fails to state a claim for relief for violation of his right to equal protection.
7. State Law Claims
a. Negligence
A state-law claim of negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 594 (1970); see also 6 Witkin, Summary of California Law § 835, p. 52 (10th ed. 2010 and Supp. 2015). Part of a claim for negligence is harm, but under the facts of this case, Plaintiff has not contracted Valley Fever, and the Court thus funds that he has not demonstrated harm.
b. Failure to Provide Adequate Facility Equipment and Personnel
Plaintiff also cites California Government Code section 855, which provides for liability of a public entity "for injury proximately caused by the failure of the public entity to provide adequate or sufficient equipment, personnel or facilities required by any statute or any regulation of the State Department of Health Services, Social Services, Developmental Services, or Mental Health prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply with the applicable statute or regulation." Here, too, assuming that Plaintiff's allegations would fall within actions required by statute or regulation, Plaintiff must establish an injury in the first instance. As he has not contracted Valley Fever, the Court finds that he cannot state a claim under section 855.
c. Abuse of Dependent Adult
The Elder Abuse and Dependent Adult Civil Protection Act ("Elder Abuse Act"), California Welfare & Institutions Code § 15600 et seq., provides that the "'Abuse of an elder or a dependent adult' means ... [p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." Cal. Welf. & Inst. Code § 15610.07. A dependent adult, in turn, is defined, inter alia, as "any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age." Id. § 15610.23. Plaintiff is informed that, should he decide to amend his complaint, courts have held that a person detained in a prison or similar facility is not, without the assertion of additional facts, a "dependent adult" within the meaning of this statute. See, e.g., Cabral v. County of Glenn, 624 F. Supp. 2d 1184, 1194-95 (E.D. Cal. 2009) (holding that a pretrial detainee has not alleged that he is a "dependent adult" under Section 15610.23).
d. California Tort Claims Act
The Court also notes that Plaintiff has not pled compliance with the California Tort Claims Act, which requires filing a claim with the California Victim's Compensation Government Claim Board prior to filing a lawsuit against a state employee or entity. Cal. Gov. Code §§ 905.2, 911.2, 945.4, 950.2; Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995). Timely claim presentation is not merely a procedural requirement but "a condition precedent to plaintiff's maintaining an action against [a state employee or entity] defendant." California v. Super. Ct. (Bodde), 32 Cal. 4th 1234, 1240 (2004). Failure to file a timely claim with the VCGCB is fatal to a cause of action for negligence or other state tort. See Hacienda La Puente Unified Sch. Dist. of Los Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992) (citing City of San Jose v.Super. Ct. (Lands Unlimited), 12 Cal. 3d 447, 454 (1974)).
V. Conclusion
The Court finds that Plaintiff has stated an Eighth Amendment conditions of confinement claim against Defendants Mayberg, the Fresno County Board of Supervisors, Kramer, and Ahlin. All other claims and Defendants are subject to dismissal. If Plaintiff intends to proceed on his complaint as screened, he must file a notice with the Court within thirty days. Alternatively, Plaintiff may file an amended complaint.
If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's motion for reconsideration (ECF No. 9) is GRANTED;
2. The March 28, 2016, Screening Order (ECF No. 8) is VACATED;
3. The Clerk's Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his Complaint, filed October 22, 2015;
4. Plaintiff shall notify the Court within thirty days of his willingness to proceed on the complaint as screened. Alternatively, he may file an Amended Complaint;IT IS SO ORDERED.
5. If Plaintiff fails to file a notice or an amended complaint in compliance with this order, the Court will recommend that this action be dismissed, with prejudice.
Dated: August 16, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE