(PC)Davis v. Kelso et al, No. 1:2010cv01184 - Document 96 (E.D. Cal. 2018)
Court Description: ORDER DECLINING to Adopt FINDINGS AND RECOMMENDATIONS, DENYING Defendants' Motion to Dismiss, and DISMISSING Claims for Injunctive and Declaratory Relief 85 , 91 , signed by District Judge Dale A. Drozd on 9/20/2018: This case is referred back to the assigned magistrate judge for scheduling and further proceedings consistent with this order. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES T. DAVIS, 12 13 14 15 16 17 18 No. 1:10-cv-01184-DAD-SAB Plaintiff, v. JAMES A. YATES and MATTHEW CATE, Defendants. ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANTS’ MOTION TO DISMISS, AND DISMISSING CLAIMS FOR INJUNCTIVE AND DECLARATORY RELIEF (Doc. Nos. 85, 91) Plaintiff is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 19 U.S.C. § 1983. In his second amended complaint, plaintiff claims the defendants were 20 deliberately indifferent to a serious, known risk to his health by allowing him to be transferred to 21 and housed at Pleasant Valley State Prison (“PVSP”) despite the significant risk of him 22 contracting Valley Fever. Plaintiff alleges he did contract that disease. 23 On November 12, 2015, the assigned magistrate judge issued findings and 24 recommendations recommending that defendants’ motion to dismiss the complaint be granted on 25 qualified immunity grounds. (Doc. No. 91.) Those findings and recommendations were served 26 on the parties and contained notice that objections thereto were to be filed within thirty days of 27 service. Plaintiff filed objections on December 14, 2015 (Doc. No. 93), and defendants filed a 28 response thereto on December 30, 2015 (Doc. No. 94). See Local Rule 304(b), (d). 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 2 conducted a de novo review of this case. Having carefully reviewed the entire file and for the 3 reasons discussed below, the undersigned declines to adopt the findings and recommendation. 4 BACKGROUND 5 In summary, in his second amended complaint plaintiff alleges as follows. At the time 6 this action was initiated in July of 2010, plaintiff was an inmate at PVSP, which is within an 7 “endemic area” containing Valley Fever.1 (Doc. No. 68 at 3.) Plaintiff is African-American, and 8 suffers from diabetes and “fecal and urin[ary] incontinence as a result of left lumbar 9 radiculopathy and sensory motor neuropathy” placing him at a significantly higher risk than 10 others of contracting Valley Fever. (Id. at 4.) Plaintiff was transferred to PVSP, despite the 11 defendants’ knowledge that he was at a significantly higher risk of being infected with Valley 12 Fever at PVSP due to his race and the other medical conditions from which he suffered. (Id. at ¶¶ 13 3–7.) As a result of various investigations and reports received by them, defendants were aware 14 of the particularly high risk posed to plaintiff of contracting the disease at PVSP because of the 15 conditions at that prison and his susceptibility due to his race and medical condition. (Id.) 16 Nonetheless, defendants did nothing in response to plaintiff’s requests for a transfer to a different 17 institution due to his medical condition and he contracted Valley Fever at PVSP as a result. 18 According to plaintiff, contracting the disease caused him 19 to become very weak and more tired, suffered extreme and sever[e] physical pain in my joints and spasms all over my body, extreme coughing, aggravation of my back, legs, and foot pain, emotional distress, skin discoloration, itching, and inability to sleep through the night. 20 21 22 (Id. at 5.) The disease continues to aggravate the other medical conditions inflicting plaintiff and 23 24 25 26 27 28 1 Valley Fever, also known as coccidioidomycosis, is an infectious disease caused by inhalation of a fungus (Coccidioides [immitis]) that lives in the soil of dry, low rainfall areas. It is spread through spores that become airborne when the dirt they reside in is disturbed by digging, construction, or strong winds. There is no direct person-to-person transmission of infection. Plata v. Brown, No. C01-1351-THE, 2013 WL 3200587, at *2 (N.D. Cal. June 24, 2013). 2 1 he continues to suffer from Valley Fever. (Id.) Plaintiff seeks both monetary damages and 2 injunctive relief. 3 This case was screened by the assigned magistrate judge pursuant to 28 U.S.C. § 1915A, 4 and plaintiff’s Eighth Amendment claims were permitted to proceed against defendants CDCR 5 Secretary Cate and PVSP Warden Yates, while two other named defendants2 were dismissed 6 from the suit. (Doc. Nos. 73 and 74.) Following service of process, defendants Cate and Yates 7 filed a motion to dismiss plaintiff’s second amended complaint on two grounds: 1) that plaintiff 8 failed to allege that defendants personally caused the alleged constitutional violation; and 2) that 9 the defendants are entitled to qualified immunity in this case. (Doc. No. 85.) As indicated above, 10 the magistrate judge issued findings and recommendations recommending that defendants’ 11 motion to dismiss be granted on the grounds that they are entitled to qualified immunity. (Doc. 12 No. 91.)3 13 ANALYSIS 14 1. Qualified Immunity 15 In various decisions both the Supreme Court and the Ninth Circuit have concluded that 16 exposure to hazardous environmental conditions in a prison, including toxic substances, 17 dangerous work environments, temperature extremes, dangerous diseases, and more, can form the 18 basis of an Eighth Amendment conditions of confinement claim. See Helling v. McKinney, 509 19 U.S. 25, 28–29 (1993) (upholding Eighth Amendment claim based upon exposure to tobacco 20 smoke); Morgan v. Morgensen, 465 F.3d 1041, 1047 (9th Cir. 2006) (holding that it was clearly 21 established law that a “safety hazard in an occupational area” violated prisoner’s Eighth 22 Amendment rights); Keenan v. Hall, 83 F.3d 1083, 1089–90 (9th Cir. 1996) (concluding that 23 deprivation of outdoor exercise, excessive noise and lighting, lack of ventilation, inadequate 24 2 25 26 27 28 The dismissed defendants were court appointed Health Care Receiver Clark Kelso and PVSP Chief Medical Officer Felix Igbinosa. 3 Because the findings and recommendations concluded dismissal was appropriate on qualified immunity grounds, defendants’ argument that plaintiff had failed to adequately allege they personally caused him to suffer the claimed constitutional violation was not addressed therein. (Doc. No. 91 at 4.) 3 1 access to basic hygiene supplies, and inadequate food and water were sufficient to state an Eighth 2 Amendment claim); Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995) (noting asbestos 3 exposure could serve as the basis for an Eighth Amendment claim); Kelley v. Borg, 60 F.3d 664, 4 666–67 (9th Cir. 1995) (holding that the law was sufficiently clearly established to allow an 5 Eighth Amendment claim for failing to remove inmate from cell where he was exposed to 6 unidentified “fumes” which rendered him unconscious to proceed); Gillespie v. Civiletti, 629 F.2d 7 637, 642 (9th Cir. 1980) (noting inadequate heat can permit Eighth Amendment claim). This 8 principle is also well-established by the decisions of other circuit courts. See, e.g., Hinojosa v. 9 Livingston, 807 F.3d 657, 669 (5th Cir. 2015) (identifying “the well-established Eighth 10 Amendment right not to be subjected to extremely dangerous temperatures without adequate 11 ameliorative measures”); Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007) (exposure of 12 prisoner to hepatitis or other serious diseases can state claim under Eighth Amendment); Vinning- 13 El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (noting that “[a]ny number of opinions” 14 demonstrate that environmental conditions such as flooding and exposure to blood and feces in 15 cells can form the basis of an Eighth Amendment claim); Atkinson v. Taylor, 316 F.3d 257, 268– 16 69 (3d Cir. 2003) (collecting cases from the Second, Fifth, Sixth, Seventh, and Eighth Circuits 17 concerning exposure to environmental tobacco smoke); DeSpain v. Uphoff, 264 F.3d 965, 979 18 (10th Cir. 2001) (concluding the law was sufficiently clearly established to permit Eighth 19 Amendment claims concerning cells flooded with sewage to proceed); Shannon v. Graves, 257 20 F.3d 1164, 1168 (10th Cir. 2001) (exposure to human waste can state Eighth Amendment claim 21 because it “carries a significant risk of contracting infectious diseases such a Hepatitis A, shigella, 22 and others”); Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (Eighth Amendment claim 23 can be based on “showing that the inmate was exposed to unreasonably high levels of 24 environmental toxins”); Warren v. Keane, 196 F.3d 330 (2d Cir. 1999) (recognizing Eighth 25 Amendment claims for exposure to both second-hand smoke and asbestos); LaBounty v. 26 Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (“[A] reasonable person would have understood that 27 exposing an inmate to friable asbestos could violate the Eighth Amendment.”); Smith v. 28 Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (exposure to raw sewage can state Eighth 4 1 Amendment claim); Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir. 1991) (“The right of 2 prisoners to adequate heat and shelter was known in 1982.”); DeGidio v. Pung, 920 F.2d 525, 3 531–33 (8th Cir. 1990) (upholding Eighth Amendment claims based on exposure to tuberculosis); 4 see also Johnson v. Epps, 479 Fed. App’x 583, 590–91 (5th Cir. 2012) (exposure to unsterilized 5 barbering instruments potentially contaminated with HIV-positive blood sufficient to state Eighth 6 Amendment claim); Loftin v. Dalessandri, 3 Fed. App’x 658, 660–63 (10th Cir. 2001) 7 (recognizing that an inmate could state an Eighth Amendment claim for exposure to tuberculosis). 8 In short, a reasonable prison official knows the Constitution does not permit them to knowingly 9 subject inmates to environmental conditions that pose a serious risk of harm, to their health or 10 otherwise, without seeking to abate those risks. 11 The judges of the Eastern District of California, where almost all cases involving Eighth 12 Amendment claims based upon exposure to Valley Fever emanate from, have differed on the 13 proper application of qualified immunity in Valley Fever cases. Compare Allen v. Kramer, No. 14 1:15-cv-01609-DAD-MJS, 2016 WL 4613360, at *7–9 (E.D. Cal. Aug. 17, 2016) with Jackson v. 15 Brown, 134 F. Supp. 3d 1237, 1248 (E.D. Cal. 2015).4 Nonetheless, the undersigned concludes 16 that it is inappropriate to hold at the pleading stage—i.e., no matter what the evidence might 17 show—that a prison official could not have reasonably known he was violating the Constitution 18 by intentionally and knowingly exposing a high-risk inmate to an increased risk of contracting 19 Valley Fever. In this regard, a key issue in Eighth Amendment claims such as this one is the level 20 of knowledge that defendants possessed about both the existence and seriousness of the harm 21 which faced plaintiff. See, e.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“[A] prison 22 official may be held liable under the Eighth Amendment for denying humane conditions of 23 24 25 26 27 28 4 In part, due to these seemingly divergent views on this issue, the undersigned has delayed issuing this and several other orders in cases involving assertion of a qualified immunity defense to Eighth Amendment claims based upon exposure to Valley Fever while awaiting an anticipated Ninth Circuit decision addressing this issue. In this regard, the court notes that oral argument was held on May 17, 2017, before the Ninth Circuit in the consolidated matter of Hines v. Youseff, et al., Nos. 15-16145, 15-17076, 15-17155, 15-17201 (9th Cir. 2015), in which the issue is presented. However, given the lapse of time since that case was argued with no decision having been rendered, the undersigned has concluded that any further delay in these proceedings is unwarranted. 5 1 confinement only if he knows that inmates face a substantial risk of serious harm and disregards 2 that risk by failing to take reasonable measures to abate it.”); Morgan, 465 F.3d at 1047 (noting 3 that the inmate had alerted prison officials to the hazardous condition but had been ordered to 4 return to work anyway); Wallis, 70 F.3d at 1077 (highlighting specific evidence showing the 5 defendants “knew of the existence of and dangers posed by asbestos in the [prison’s] attics”). 6 7 8 9 10 11 12 It is well-established that Valley Fever can pose an objectively serious health risk, at least to certain individuals. As the Ninth Circuit has previously recognized: According to the Center for Disease Control and Prevention (“CDC”), “[s]ymptomatic coccidioidomycosis [Valley Fever], which occurs in approximately 40% of all infections, has a wide clinical spectrum, including mild influenza-like illness, severe pneumonia, and disseminated disease.” The disseminated form of the disease—that is, when the fungus spreads from the lungs to the body’s other organs—is the most serious. Disseminated cocci may cause miliary tuberculosis, bone and joint infections (including osteomyelitis), skin disease, soft tissue abscesses, and meningitis. 13 Edison v. United States, 822 F.3d 510, 514–15 (9th Cir. 2015); see also Zurich Ins. Co. v. 14 Sigourney, 278 F.2d 826, 828 (9th Cir. 1960) (noting there was “no doubt” the appellee was “now 15 totally disabled from a disease known as occidioidomycosis—called on the West Coast ‘San 16 Joaquin Valley Fever’”). If defendants knew of a serious health risk to plaintiff and nevertheless 17 subjected him to it without a sufficient penological justification—for example, simply because the 18 Supreme Court, Ninth Circuit or district court had not yet ordered them to abate this specific 19 danger—it is doubtful in the undersigned’s view that they could avail themselves of the shield of 20 qualified immunity. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We do not require a 21 case directly on point, but existing precedent must have placed the statutory or constitutional 22 question beyond debate.”); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“Officials can still be on 23 notice that their conduct violates established law even in novel factual circumstances.”); Hamby 24 v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016) (“[A] plaintiff need not find a case with 25 identical facts in order to survive a defense of qualified immunity.”); Serrano v. Francis, 345 26 F.3d 1071, 1076–77 (9th Cir. 2003). 27 28 In this case, plaintiff alleges he belonged to groups which defendants knew were at an increased risk of contracting coccidioidomycosis, and that the defendants transferred him to 6 1 PVSP despite knowing about outbreaks of the disease at that prison. (Doc. No. 68 at 3.) Plaintiff 2 alleges he specifically requested a transfer from the defendants away from PVSP due to the 3 increased risks posed to his health by Valley Fever in light of his at-risk status, and that 4 defendants failed to act on his request. (Id. at 5.) Further, plaintiff alleges the defendants 5 responded to his inmate appeal in which he presented these allegations, indicating they were 6 subjectively aware of his complaints and concerns. (Id. at 7, 9.) While it may emerge through 7 the course of these proceedings that one or more of these allegations are not supported by the 8 evidence, the allegations provide a sufficient basis upon which to deny the invocation of qualified 9 immunity at this stage of these proceedings. See Keates v. Koile, 883 F.3d 1228, 1240 (9th Cir. 10 2018) (“Our denial of qualified immunity at this stage of the proceedings does not mean that this 11 case must go to trial” because “[o]nce an evidentiary record has been developed through 12 discovery, defendants will be free to move for summary judgment based on qualified immunity.”) 13 (quoting O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016)). Defendants’ motion to dismiss on 14 qualified immunity grounds will therefore be denied. 15 2. Causal Relationship 16 Defendants also move to dismiss plaintiff’s second amended complaint, arguing there is 17 no causal connection alleged between the actions of the named defendants and any constitutional 18 violation from which plaintiff suffered. (Doc. No. 85-1 at 3–5.) Defendants are correct that 19 “[t]here is no respondeat superior liability under section 1983.” Taylor v. List, 880 F.2d 1040, 20 1045 (9th Cir. 1989) (citing Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 21 680–81 (9th Cir. 1984)). Here, however, plaintiff’s allegation against defendant Yates include the 22 allegation that plaintiff appealed to defendant Yates for a transfer away from PVSP after alerting 23 the defendant to his particular health concerns, and that although the inmate appeal was noted by 24 the defendant, no transfer or other measures to protect plaintiff’s health were undertaken. 25 Construing the allegations of plaintiff’s second amended complaint in the light most favorable to 26 plaintiff, knowledge of a serious risk to an inmate’s health combined with a failure to act to 27 ameliorate or attend to that risk provides a sufficient basis to state a claim that defendant Yates 28 demonstrated deliberate indifference to plaintiff’s serious medical needs. See Iqbal, 556 U.S. at 7 1 678; Twombly, 550 U.S. at 570; Jett, 439 F.3d at 1096; Cahill, 80 F.3d at 337–38; see also 2 Johnson v. Pleasant Valley State Prison, 505 Fed. App’x 631, 632 (9th Cir. 2013) (“Given the 3 low threshold requirements of 28 U.S.C. § 1915A, dismissal of Johnson’s action was improper at 4 this early stage because Johnson alleged that prison officials were aware that inmates’ exposure to 5 [V]alley [F]ever posed a significant threat to inmate safety yet failed to take reasonable measures 6 to avoid that threat.”); Smith v. Schwarzenegger, No. 09-15716, 393 Fed. App’x 518, at *1 (9th 7 Cir. Aug. 1, 2010) (noting that dismissal with prejudice of plaintiff’s claim—that he was more 8 susceptible to contracting Valley Fever and that defendants were deliberately indifferent to his 9 serious medical needs by housing him at prisons in areas where Valley Fever is known to be 10 present—was improper, because it was “not beyond doubt that Smith could prove no set of facts 11 in support of his claims that would entitled [sic] him to relief”) (citing Helling).5 12 Concerning defendant Cate, defense counsel notes that a supervisor may be held liable for 13 the constitutional violations of a “subordinate if the supervisor participated in or directed the 14 violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. 15 Again, however, taking the allegations of plaintiff’s second amended complaint as true and 16 construing them broadly, as the court must, plaintiff has alleged that he specifically informed 17 defendant Cate of the violation of his constitutional rights by letter following defendant Yates’s 18 failure to transfer plaintiff from PVSP, and defendant Cate too took no steps to remedy the 19 constitutional violation. (Doc. No. 68 at 5, 9.) Such allegations are sufficient at the pleading 20 stage to causally link the defendants to the failure to transfer plaintiff to an institution that did not 21 pose a serious risk of medical harm to him. 22 3. 23 Plaintiff seeks injunctive relief or, in the alternative, a declaratory judgment, apparently 24 seeking to prevent other inmates who meet various exclusion criteria from being transferred to 25 ///// 26 ///// 27 28 5 Injunctive Relief Citation to these unpublished Ninth Circuit opinions is appropriate pursuant to Ninth Circuit Rule 36–3(b). 8 1 prisons within the Valley Fever endemic region. (Doc. No. 68 at ¶¶ 20–22.)6 A plaintiff seeking 2 a permanent injunction must satisfy a four-factor test in order for the court to grant relief. 3 A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. 4 5 6 7 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also Independent Training and 8 Apprenticeship Program v. California Dept. of Indus. Relations,730 F.3d 1024, 1032 (9th Cir. 9 2013). 10 Here, it is unclear what injunctive relief plaintiff could possibly seek. Plaintiff alleges he 11 has already contracted Valley Fever, which is chronic and for which there is no cure. (Doc. No. 12 68 at ¶ 8.) He does not allege he will contract it again, or that continued exposure will cause him 13 further harm. It therefore appears that plaintiff alleges no injury that cannot be remedied by the 14 award of money damages. eBay Inc., 547 U.S. at 391. To the extent he has suffered harm by 15 contracting Valley Fever, the harm has already occurred; he does not allege any future injury with 16 which he is personally threatened necessitating the granting of equitable relief. 17 Plaintiff does state that, “because the issue of advanced ‘warning’ to inmates when they 18 are being considered for transfer into an endemic area is not an issue raised in any class-action, 19 and is an ongoing controversy that shows no sign of abating, I am entitled to an injunction, or in 20 the alternative, a declaratory judgment under 28 U.S.C. section 2201.” 7 (Doc. No. 68 at ¶ 22.) It 21 therefore appears plaintiff raises his requests for injunctive and/or declaratory relief in order to 22 23 24 25 26 27 28 6 Qualified immunity is inapplicable to claims for injunctive relief. See al-Kidd, 563 U.S. at 735 (noting “[q]ualified immunity shields federal and state officials from money damages”); Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (“Claims for injunctive and declaratory relief are unaffected by qualified immunity.”) (quoting Malik v. Brown, 16 F.3d 330, 335 n.4 (9th Cir. 1994)). 7 The court will also exercise its discretion to decline to consider a claim for declaratory judgment against defendants. See Wilton v. Seven Falls Co., 515 U.S. 277, 286–87 (1995) (noting that 28 U.S.C. § 2201(a) is “an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant”). 9 1 assert the rights of other inmates, in the hopes they not contract the same illness. Of course, 2 plaintiff generally has no standing to assert the rights of third parties. See Singleton v. Wulff, 428 3 U.S. 106, 114 (1976) (“Ordinarily, one may not claim standing in this Court to vindicate the 4 constitutional rights of some third party.”). Plaintiff also may not represent a class of inmates in a 5 putative class action. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664–65 (9th Cir. 2008) (“As 6 the district court accurately pointed out, courts have routinely adhered to the general rule 7 prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative 8 capacity.”); Claxton v. Ryan, No. CV 11–934–PHX–GMS (ECV), 2011 WL 2533554, at *1–2 9 (D. Ariz. June 27, 2011) (noting that pro se plaintiffs “may not appear as an attorney for other 10 persons in a class action”); Reed v. Board of Prison Terms, No. C 03–2917 MMC PR, 2003 WL 11 21982471, at *1 (N.D. Cal. Aug. 8, 2003) (“Pro se prisoner plaintiffs may not bring class actions 12 because they are not adequate class representatives able to fairly represent and adequately protect 13 the interests of the class.”). 14 15 16 17 CONCLUSION For the foregoing reasons: 1. The undersigned declines to adopt the findings and recommendations issued November 12, 2015 (Doc. No. 91); 18 2. Defendants’ motion to dismiss filed March 30, 2015 (Doc. No. 85) is denied; 19 3. Plaintiff’s claims for injunctive relief and declaratory judgment are dismissed; and 20 4. This case is referred back to the assigned magistrate judge for scheduling and further 21 22 23 24 proceedings consistent with this order. IT IS SO ORDERED. Dated: September 20, 2018 UNITED STATES DISTRICT JUDGE 25 26 27 28 10
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