Jackson et al v. State of California et al

Filing 38

FINDINGS and RECOMMENDATIONS recommending granting in part and denying in part 25 DEFENDANT'S MOTION to DISMISS referred to District Judge Lawrence J. O'Neill; Signed by Magistrate Judge Stanley A. Boone on 2/20/2014. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR DUANE JACKSON, et al.,

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Plaintiffs,
v.

Case No. 1:13-cv-01055-LJO-SAB
FINDINGS AND RECOMMENDATION
RECOMMENDING GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION
TO DISMISS

STATE OF CALIFORNIA, et al.,
(ECF Nos. 25, 32, 33, 36)

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Defendants.
OBJECTIONS DUE WITHIN FOURTEEN DAYS

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I.

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PROCEDURAL HISTORY

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Plaintiffs Arthur Duane Jackson, Leonard M. Lujan, Marcus Jackson, Rodney Taylor,

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Lacedric Johnson, L.T. Belton, and Norman Johnson filed this civil rights action pursuant to 42

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U.S.C. § 1983 and 42 U.S.C. § 1981 on July 9, 2013. (ECF No. 1.) Plaintiffs bring this action

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against Defendants Edmund G. Brown, Jr., Matthew Cate, Jeffrey Beard, P.D. Brazelton, and

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James D. Hartley for deliberate indifference in violation of the Eighth Amendment, racial

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discrimination in violation of the Fourteenth Amendment and 42 U.S.C. § 1981, and against the

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individual defendants and Defendants State of California, California Department of Corrections

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and Rehabilitation (“CDCR”), and Pleasant Valley State prison for negligence under state law.

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Plaintiffs are seeking monetary damages and declaratory and injunctive relief.

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Defendants filed a motion to dismiss on September 25, 2013. (ECF No. 15.) Plaintiffs
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filed a first amended complaint on October 16, 2013. (ECF No. 16.) On October 18, 2013, an

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order issued denying Defendants’ motion to dismiss as moot. (ECF No. 24.)

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On November 4, 2013, Defendants filed a motion to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 25.) Plaintiffs filed an opposition

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to the motion and request for judicial notice on January 22, 2014. 1 (ECF No. 32, 33.) On

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February 12, 2014, Defendants filed a reply. (ECF No. 36.)

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The Court heard oral arguments on February 19, 2014. (ECF No. 36.) Counsel Jason

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Feldman and Mark Ozzello appeared for Plaintiffs and Counsel Jon Allin appeared for

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Defendants.

Having considered the moving, opposition and reply papers, and arguments

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presented at the February 19, 2014 hearing, the Court issues the following findings and

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recommendation recommending that Defendants’ motion to dismiss be granted in part and denied

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in part and that Plaintiffs be granted an opportunity to file an amended complaint to cure the

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deficiencies discussed below.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiffs are current or former inmates who allegedly contracted Coccidiododomycosis,

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commonly known as Valley Fever, while incarcerated at Pleasant Valley State Prison (“PVSP”)

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or Avenal State Prison (“ASP”). (First Am. Compl. 2-5,2 ECF No. 22.) This action is brought on

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behalf of three subclasses of Plaintiffs: 1) African-American inmates, 2) inmates over the age of

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55, or 3) immune-compromised inmates who were incarcerated at PVSP or ASP from July 8,

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2009 through the present and contracted Valley Fever. (Id. at 7-8.)

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Plaintiffs’ request for judicial notice is denied. Under the Federal Rules a court may take judicial notice of a fact
that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). Judicial notice may be taken “of court filings and other matters of
public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc. 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001). However, while a court may properly take notice of a doctrine or rule of
law from a prior case, M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983),
on a motion to dismiss pursuant to Rule 12(b)(6) review is confined to the complaint and the court typically does not
consider material outside the pleadings, U.S. v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943,
955 (9th Cir. 2008).
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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.

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Plaintiffs allege that Valley Fever is a serious infectious disease which is contracted by

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inhalation of an airborne fungus and is prevalent in the San Joaquin Valley of California. (Id. at ¶

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30.) Epidemiological studies have established that African-Americans, persons over the age of

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55, and those in an immune-compromised state are at higher risk for developing Valley Fever.

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(Id. at ¶ 34.)

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In June of 1994, the U.S. Centers for Disease Control and Prevention (“CDC”) published

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an article reporting on the impact of Valley Fever in California and that 70% of the reported cases

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in California arose in the San Joaquin Valley. (Id. at ¶ 38.) In September 1995, the CDCR issued

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a memorandum describing the illness, its long term effects, and the increased risk of acquiring

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Valley Fever in the subclasses identified by Plaintiffs. (Id. at ¶ 39.) In September of 1996, an

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article was published by two doctors from the University of California-San Diego, School of

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Medicine, commenting on the Valley Fever epidemic of 1991-1993. (Id. at ¶ 40.)

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In 1996, the National Foundation for Infectious Diseases held an International Conference

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on Coccidiododomycosis and published a summary of the articles discussed at the conference.

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Included in these articles was the “California Health Services Policy Statement on

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Coccidiododomycosis which stated that from 1991 to 1993 California was spending $60 million

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in health care costs from Valley Fever infections.

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subclasses were at a higher risk for developing Valley Fever. The report also identified the areas

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that house PVSP and ASP as the most likely place to generate Valley Fever infections and

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recommended preventive measures, such as using spherulin skin tests to identify those not

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vulnerable to infection, the use of dust control measures, masks and wetting of the soil. (Id. at ¶

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41.)

The report recognized that Plaintiffs’

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In 2006, the California State Public Health Department issued a report addressing Valley

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Fever at PVSP and ASP and made suggestions to reduce the amount of Valley Fever infections

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experienced by individuals in Plaintiff’s subclasses. These suggestions were not implemented by

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the CDCR. (Id. at ¶ 45.)

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In 2007, an article entitled “Coccidioidomycosis in California State Correctional

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Institutions” was published, which pointed out that construction of new prisons in affected areas
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had led to a marked increase in the number of Valley Fever cases and identified the infection rates

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at these facilities. (Id. at ¶ 71.) In June 2007, the Statewide Medical Director for California

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Prison Healthcare Services submitted a report to the federal receiver entitled “Recommendations

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to Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California.” The

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reported indicated that Defendants were recommending certain additional measures for

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immediate implementation, including environmental mitigation techniques at PVSP and ASP,

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deferring any new construction that would result in additional prisoners being housed in the

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hyperendemic areas, providing indoor recreation areas for inmates to use during high wind/dust

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events, and continuing to exclude certain inmates from facilities in these areas. (Id. at ¶ 71.)

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On April 29, 2013, the Federal Receiver, J. Clark Kelso, issued a Cocci Exclusion Policy

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which was amended on May 1, 2013, directing PVSP and ASP to exclude all high risk inmates,

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including African-Americans, inmates over the age of 55, and those who were immune

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compromised. (Id. at 72.)

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Plaintiffs in this action allege that the defendants have been aware, since at least 2006, that

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Valley Fever affected those inmates in Plaintiff’s subclasses and have taken some steps to reduce

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Valley Fever in the inmate population, but those efforts have been unsuccessful. (Id. at ¶ 48.)

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Plaintiffs contend that Defendants have failed to take action to protect individuals in Plaintiffs’

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subclasses and they are seeking future health care and health costs after they are released from

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custody and compensatory damages. (Id. at ¶¶ 44, 47.)

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Arthur Duane Jackson

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Plaintiff A. Jackson, an African-American inmate serving a sentence of 43 years to life,

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was transferred to PVSP around July 2009. (Id. at ¶¶ 3, 49, 51.) At the time of his transfer,

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Plaintiff A. Jackson was in good health. Plaintiff A. Jackson experienced symptoms of Valley

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Fever in December 2011, and was temporarily blind as a result of the infection. Plaintiff A.

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Jackson received treatment when he became ill, but his condition worsened and he developed

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pneumonia. (Id. at ¶ 50.) Plaintiff A. Jackson continues to suffer from the disease. He is

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receiving medication and is partially blind in his left eye due to the Valley Fever infection and

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suffers from severe headaches on a daily basis. (Id. at ¶ 51.)
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Leonard M. Lujan

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Plaintiff Lujan is a 62 year old former inmate who was diagnosed with cancer prior to

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contracting Valley Fever in November 2010 while housed at ASP. (Id. at ¶¶ 4, 52.) Following

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his release from custody, Plaintiff Lujan continues to experience complications of Valley Fever

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such as pain, a black spot on his lung, difficulty walking, constant fever, cold sweats, and

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difficulty breathing and sleeping. (Id. at 53.)

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Marcus Jackson

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Plaintiff M. Jackson is an African-American former inmate who was ordered into the

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custody of the CDCR in July 2009. (Id. at ¶¶5, 54.) Plaintiff contracted Valley Fever while

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housed at PVSP. (Id. at 54.) Following his release from custody, Plaintiff M. Jackson is

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experiencing panic attacks, mental stress, sleeplessness, nausea, inactivity, and vomiting. (Id. at ¶

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55.)

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Rodney Taylor

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Plaintiff Taylor is an African-American former inmate who had diabetes at the time he

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was transferred to ASP. (Id. at ¶ 6.) Plaintiff Taylor lost twenty to thirty pounds in three weeks

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after he contracted Valley Fever at ASP. (Id. at ¶ 56.) Following his release from custody,

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Plaintiff is experiencing extreme headaches, difficulty walking, lack of endurance, frequent colds,

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fatigue, and back pain. (Id. at ¶ 57.)

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Lacedric Johnson

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Plaintiff L. Johnson is an African-American inmate who is not scheduled for release until

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2027. (Id. at ¶¶ 7, 58.) Plaintiff L. Johnson suffers from lung damage, fever, sweats, headaches,

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loss of concentration, aching joints, severe weight swings, loss of body hair, lightening of skin

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pigmentation, rash, dark spots on his skin, shortness of breath, fatigue, sleeplessness, back pain

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and side effects from his prescribed medication as a result of Valley Fever. (Id. at ¶ 58.)

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L.T. Belton

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Plaintiff Belton is an African-American inmate who is scheduled for release in December

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2013. (Id. at ¶¶ 8, 59.) Plaintiff Belton suffers from headaches, fatigue, difficulty sleeping, joint

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pain, shortness of breath, numbness on bottom of foot, and difficulty with bowel movements. (Id.
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at ¶ 59.) Plaintiff Belton is undergoing treatment for Valley Fever and taking medication daily.

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(Id. at ¶ 60.)

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Norman Johnson

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Plaintiff N. Johnson is an African-American inmate who was in relatively good health at

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the time he was transferred to ASP in May 2012. (Id. at ¶¶ 9, 61.) Plaintiff N. Johnson is

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scheduled to be released from custody in July 2017. Plaintiff N. Johnson experienced chills, lack

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of appetite, night sweats, chest pain, shortness of breath, muscle and joint pain, fever, and

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allergies as a result of his Valley Fever. (Id. at ¶ 62.)

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Plaintiffs bring this action alleging deliberate indifference in violation of the Eighth

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Amendment; racial discrimination in violation the Fourteenth Amendment; racial discrimination

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in violation of 42 U.S.C. § 1981; and state law claims of negligence.

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III.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on

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the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A

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complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not

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require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-

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unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-

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79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. at 678.

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IV.

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DISCUSSION

In assessing the sufficiency of a

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Defendants bring this motion to dismiss on the grounds that 1) the conclusory allegations

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against defendants in their individual capacities do not state a claim for relief; 2) there are no

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damages available against defendants in their official capacities; 3) Plaintiffs have failed to plead
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compliance with the Government Claims Act; 4) the State and CDCR are protected by Eleventh

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Amendment immunity; and 5) Defendants are entitled to qualified immunity. (Mem. of P. & A.

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in Supp. of Mot. to Dismiss under Rule 12(b)(6) 2, ECF No. 25-1.)

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A.

Individual Capacity Claims

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Defendants argue that the complaint does not state a claim against the individual

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defendants for deliberate indifference in violation of the Eighth Amendment, and therefore, must

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be dismissed. Defendants contend that Plaintiffs have failed to make specific allegations against

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any named defendant and merely recite general responsibility of their offices. (ECF No. 25-1 at

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3.) Additionally, Defendants contend that the complaint states that Defendants have taken steps

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to reduce the incidence of Valley Fever in the prison population, but complain that those steps

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have been ineffective. (Id. at 4.)

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Plaintiffs oppose the motion contending that the first amended complaint is replete with

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allegations demonstrating that the individual defendants were aware of the serious medical risks

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to the plaintiffs due to their susceptibility to Valley Fever and did not act to protect them. (Opp.

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of Pls. to Mot. of Dfs. To Dismiss the First Am. Compl. 14, ECF No. 32.) Defendants reply that

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the complaint does not make any attempt to describe the individual defendant’s knowledge,

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authority to act, or personal link to any act or failure to act. (Reply 3, ECF No. 36.)

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Plaintiffs’ amended complaint merely states that Edmund G. Brown, Jr. is the Governor of

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California. (ECF No. 22 at ¶ 12.) Plaintiffs fail to set forth any factual allegations to link

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Defendant Brown to any responsibility for the actions of the other defendants. Governor Brown

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cannot be held liable for the failure of prison officials to act merely by virtue of his office.

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Accordingly, Plaintiffs have failed to state a cognizable claim against Governor Edmund G.

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Brown, Jr. Defendants’ motion to dismiss Governor Edmund G. Brown, Jr. for failure to state a

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claim should be granted. The Court will next address the individual capacity claims against

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Defendants Matthew Cate, Jeffrey Beard, P.D. Brazelton, and James D. Hartley.

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1.

Deliberate Indifference

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,
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452 U.S. 337, 347 (1981). To prove a violation of the Eighth Amendment based on prison

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conditions, a prisoner must show that a prison official deprived the prisoner of the “minimal

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civilized measure of life’s necessities,” and (2) the official “acted with ‘deliberate indifference’ in

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doing so.” Grenning v. Miller-Stout, __ F.3d __, 2014 WL 169657 (9th Cir. 2014) (quoting

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Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). In order to find a prison official liable

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under the Eighth Amendment for denying humane conditions of confinement within a prison, the

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official must know “that inmates face a substantial risk of serious harm and disregard[] that risk

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by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

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Plaintiffs contend that in 1995 the CDCR circulated a memorandum describing Valley

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Fever, its long-term effects, and the increased risk of acquiring the disease in Plaintiffs’

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subclasses. (ECF No. 22 at ¶ 39.) In 2006, the federal receiver was aware that the California

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State Health Department issued a report addressing Valley Fever and suggesting the

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implementation of environmental mitigation measures at PVSP and ASP to reduce the cocci

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spores in the ambient air to reduce the number of infections experienced by Plaintiffs’ subclasses.

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(Id. at ¶ 45.) The defendants had that authority to implement these changes, but the great

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majority of the changes were not implemented. (Id. at ¶ 70.) In June 2007, the Medical Director

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for California Prison Healthcare Services submitted a report to the Federal Receiver on

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recommendations for Valley Fever mitigation in prisons in the hyperendemic area of California.

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The report recommended immediate implementation of environmental mitigation techniques for

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prisons in the hyperendemic area. (Id. at ¶ 71.)

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At the pleading stage, the complaint sets forth sufficient factual allegations to state a

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plausible claim that Defendants Matthew Cate, Jeffrey Beard, P.D. Brazelton, and James D.

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Hartley were aware that African-American inmates, inmates over 55 years of age, and inmates

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with compromised immune systems had a significant risk of contracting Valley Fever and failed

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to take reasonable measures to abate the risk. (Id. at ¶¶ 14, 15, 16, 17, 39, 45, 46, 47, 48, 70, 71.)

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During the hearing, Defendants argued specifically the complaint was insufficient in

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respect to the claims against Defendant Jeffrey Beard because he has only been in his current

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position since 2012. However, Plaintiffs claims encompass July 8, 2009 through the present, (id.
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at ¶ 22), and the allegations that Defendant Beard is responsible for the health and welfare of the

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plaintiffs and the operation of the California State prisons and knew of the substantial risk to the

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plaintiff’s subclasses, (id. at ¶ 15), is sufficient to state a claim given the low pleading standard

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which merely requires factual allegations to state a plausible claim for relief. 3

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Plaintiffs’ allegations regarding the positions occupied by the individual defendants and their

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responsibilities within the prison system are sufficient at the pleading stage to link them to the

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failure to act to protect Plaintiffs from the risk of contracting Valley Fever.

Similarly,

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Defendants also argue the first amended complaint does not state a claim for deliberate

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indifference because Plaintiffs admit that steps were taken to reduce the incidence of Valley

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Fever in the prison population. While prison officials are not liable if they respond reasonably to

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a serious risk to inmates, Thomas v. Ponder, 611 F3d 1144, 1150 (9th Cir. 2010), this factual

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allegation itself does not show that the steps taken here were reasonable to address those inmates

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at high risk of contracting Valley Fever. Plaintiff’s first amended complaint states a cognizable

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claim against Matthew Cate, Jeffrey Beard, P.D. Brazelton, and James D. Hartley for deliberate

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indifference in violation of the Eighth Amendment. Defendants’ motion to dismiss the Eighth

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Amendment claim against these individual defendants should be denied.

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2.

Equal Protection

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Defendants move to dismiss Plaintiffs’ equal protection claims because the amended

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complaint merely recites conclusory statements that fail to meet the pleading standard. (ECF No.

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25-1 at 4.) Plaintiffs contend that they have stated sufficient factual allegations that African-

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American inmates were treated differently from similarly situated persons. (ECF No. 32 at 16.)

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Defendants reply that the complaint alleges a factually neutral policy of housing African-

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American inmates at PVSP and ASP on the same basis as other ethnicities and Plaintiffs are

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attempting to state an equal protection claim based upon disparate impact without showing any

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discriminatory intent. (ECF No. 36 at 3-4.)

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To the extent that Defendants argue that Defendant Beard was not employed in his current position during the
relevant time period that is an issue to be raised on motion for summary judgment and not at the motion to dismiss
stage sinc the complaint alleges he was involved.

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The Equal Protection Clause requires that all persons who are similarly situated should be

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treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v.

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Cleburne Living Center, 473 U.S. 432, 439 (1985). An equal protection claim may be established

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by showing that the defendant intentionally discriminated against the plaintiff based on the

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plaintiff’s membership in a protected class, Lee, 250 F.3d at 686; Barren v. Harrington, 152 F.3d

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1193, 1194 (1998), or that similarly situated individuals were intentionally treated differently

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without a rational relationship to a legitimate state purpose, Thornton v. City of St. Helens, 425

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F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

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Relying on Johnson v. California, 543 U.S. 499 (2005), Plaintiffs contend that the

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complaint shows that African-Americans were treated differently than other races because the

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defendants identified and implemented an exclusion policy that singled out African-Americans

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creating an express racial classification who were denied exclusion based on their race. (ECF No.

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32 at 16.) However, this action is distinguishable from Johnson.

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In Johnson, the CDCR was placing inmates in double-cell assignments in the reception

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center based predominately upon race. Johnson, 453 U.S. at 502. Plaintiff was an African-

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American male who challenged the policy that assigned him to a cell with another African-

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American inmate as violating the Equal Protection Clause. Id. at 504. The issue before the court

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was whether the policy, which was instituted to address racial violence, should be subject to strict

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scrutiny. Id. at 506. The Supreme Court determined that strict scrutiny applied and the CDCR

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had the burden of demonstrating that the race based policy was narrowly tailored to address racial

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violence. Id. at 514.

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In this instance, the CDCR has not excluded inmates of any race from being housed at

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PVSP or ASP. (ECF No. 22 at ¶ 77.) In housing inmates in these prisons, the CDCR is treating

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African-American inmates the same as members of other races. Proof of racially discriminary

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intent or purpose is required to allege a violation of the Equal Protection Clause, and the fact that

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a challenged policy has a disparate impact is insufficient to state a claim. Village of Arlington

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Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65 (1977); see

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N.A.A.C.P., Los Angeles Branch v. Jones, 131 F.3d 1317, 1322 (9th Cir. 1997) (The Equal
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Protection Clause is not implicated by classifications with a disparate racial impact in the absence

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of discriminary intent). Plaintiffs conclusory allegations of racial discrimination are insufficient

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to state a plausible claim that African-American inmates are being intentionally discriminated

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against based upon their race.

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As Plaintiffs recognize in the opposition to the motion to dismiss, the individuals who are

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similarly situated to African-Americans in this instance are those who are at high risk of

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contracting Valley Fever. These are the similarly situated individuals to which the Court looks to

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determine if African-American inmates are receiving differential treatment.

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The first amended complaint alleges that the defendants failed to exclude all high risk

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individuals from being housed in the endemic area. Plaintiffs contend that Defendants have failed

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to employ any process to divert members of the high risk groups from assignment to PVSP or

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ASP. (ECF No. 22 at ¶ 77.) Because African-American inmates were treated the same as all

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other high risk inmates, the complaint fails to state a cognizable claim for violation of the Equal

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Protection Clause.

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Defendants’ motion to dismiss Plaintiffs’ equal protection claim should be granted.

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3.

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Defendants contend that section 1981 does not apply in this action because the basic

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elements of a discrimination claim under the section cannot be met. (ECF No. 25-1 at 6.)

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Plaintiffs argue that section 1981 applies to actions other than those which address the right to

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make contracts. (ECF No. 32 at 17.) Plaintiffs argue that “Section 1981 provides for the

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imposition of equality with regard to a myriad of rights.” (Id. at 18.)

42 U.S.C. § 1981

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Section 1981 provides that:

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All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.

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Plaintiffs’ claim that the language “shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other” extends the protection beyond the

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ability to contract without citing any case law to support the position. However, “[s]ection 1981

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is not ‘a general proscription of racial discrimination ... it expressly prohibits discrimination only

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in the making and enforcement of contracts.’ ”

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Corrections and Rehabilitation, 451 F.Supp.2d 1092, 1101 (E.D. Cal. 2006) (quoting Patterson v.

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McLean Credit Union, 491 U.S. 164, 176 (1989)). “The specific function of section 1981 is to

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protect the equal rights of all people to make and enforce contracts. Domino’s Pizza, Inc. v.

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McDonald, 546 U.S. 470, 475 (2006).

Peterson v. State of California Dep’t of

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To state a claim under section 1981, “a plaintiff must establish that (1) he or she is a

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member of a racial minority; (2) the defendant intended to discriminate against plaintiff on the

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basis of race by the defendant; and (3) the discrimination concerned one or more of the activities

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enumerated in the statute (i.e., the right to make and enforce contracts, sue and be sued, give

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evidence, etc.).” Peterson, 451 F.Supp. at 1101.

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“A contract is necessary to a section 1981 claim.” Ennix v. Stanten, 556 F.Supp.2d 1073,

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1082 (N.D. Cal. 2008); Domino’s Pizza, Inc., 546 U.S. at 476 (“Any claim brought under § 1981,

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therefore, must initially identify an impaired ‘contractual relationship,’ § 1981(b), under which

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the plaintiff has rights.”). A plaintiff cannot state a claim under section 1981 unless he has rights

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under an existing contract that he is attempting to make and enforce. 4 Domino’s Pizza, Inc., 546

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U.S. at 479-80.

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Plaintiffs are unable to state a claim under 42 U.S.C. § 1981 as they cannot meet the

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requirement that they are attempting to make or enforce a contract. Defendants’ motion to

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dismiss Plaintiffs claim for racial discrimination in violation of 42 U.S.C. § 1981 should be

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granted. Further, based upon the allegations in the complaint, the Court finds that the racial

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discrimination claim under 42 U.S.C. § 1981 is unable to be cured by amendment and therefore,

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should be dismissed without leave to amend.

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When the Court inquired during the hearing, Plaintiffs’ counsel conceded that they did not cite any case law to
support their claim, but merely made the argument based upon the plain wording of the statute. Counsel has a duty to
research the claims brought before this court and is admonished that the failure to acknowledge direct contrary case
authority is in violation of counsel’s professional responsibilities. See Cal. Rules of Prof’l Conduct R. 5-200.
Counsel is warned that their credibility with the Court may be damaged when they present arguments that are
contrary to law.

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4.

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Defendants contend that Plaintiffs do not specify whether the claims are brought against

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the individual defendants in their individual or official capacity and those claims for damages

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against the individual defendants for damages in their official capacities must be dismissed. (ECF

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No. 25-1 at 7.) Plaintiffs respond that the individual defendants are not being sued in their

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official capacities. (ECF No. 32 at 20.)

Individual Capacity Claims

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When a complaint seeking damages under § 1983 does not allege whether the official is

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sued in his official or individual capacity, the court presumes that the official is being sued in his

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individual capacity. Shoshone–Bannock Tribes v. Fish & Game Com'n, Idaho, 42 F.3d 1278,

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1284 (9th Cir.1984); see also Blaylock v. Schwinden, 863 F.3d 1352, 1354 (9th Cir.1988). In this

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case, Plaintiffs state they are not pursuing official capacity claims, and therefore the Court finds

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that the claims in this action are proceeding against the defendants in their individual capacity.

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Defendants’ motion to dismiss claims against the defendants in their official capacities should be

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granted.

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5.

State Law Claims

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Defendants seek to dismiss the state law claims arguing that Plaintiffs have not pleaded

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compliance with the Government Claims Act. (ECF No. 25-1 at 7.) Plaintiffs contend that the

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complaint adequately alleges compliance with the Government Claims Act as it states that

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“Plaintiffs Arthur Jackson, LaCedric Johnson, L.T. Belton, and Norman Johnson have exhausted

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all applicable and necessary administrative remedies for bringing this action. . . .” ECF No. 32 at

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21.)

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The California Tort Claims Act5 requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board,

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formerly known as the State Board of Control, no more than six months after the cause of action

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accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2010). Presentation of a

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5

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The Court recognizes that in City of Stockton v. Superior Court, 42 Cal.4th 730, 742 (Cal. 2007), California’s Supreme Court
adopted the practice of referring to California’s Tort Claims Act as the Government Claims Act. However, given that the federal
government has also enacted a Tort Claims Act, 28 U.S.C. § 2671, the Court here refers to the Government Claims Act as the
California Tort Claims Act in an effort to avoid confusion.

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written claim, and action on or rejection of the claim are conditions precedent to suit. State v.

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Superior Court of Kings County (Bodde), 90 P.3d 116, 119 (Cal. 2004); Shirk v. Vista Unified

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School District, 42 Cal.4th 201, 209 (2007). To state a tort claim against a public employee, a

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plaintiff must allege compliance with the California Tort Claims Act. Cal. Gov’t Code § 950.6;

5

Bodde, 90 P.3d at 123. “[F]ailure to allege facts demonstrating or excusing compliance with the

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requirement subjects a compliant to general demurrer for failure to state a cause of action.”

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Bodde, 90 P.3d at 120.

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In this instance, Plaintiffs’ general allegation that they have exhausted all administrative

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remedies is insufficient to meet this element of their state law claims. Accordingly, Plaintiff’s

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negligence claims should be dismissed for failure to state a claim.

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B.

Eleventh Amendment Immunity

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Defendants contend that the State of California and the CDCR are immune from suit

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whether Plaintiff is seeking money damages or an injunction. (ECF No. 25-1 at 8.) Plaintiff

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responds that Eleventh Amendment immunity is inapplicable here as supplemental jurisdiction

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exists. (ECF No. 32 at 21.) At the hearing, Plaintiffs conceded that they may not bring suit

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against the State of California or the CDCR.

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“The Eleventh Amendment bars suits for money damages in federal court against a state,

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its agencies, and state officials acting in their official capacities.” Aholelei v. Dept. of Public

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Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). “The Eleventh Amendment also bars ‘declaratory

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judgments against the state governments that would have the practical effect of requiring the state

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treasury to pay money to claimants.’ ” North East Medical Services, Inc. v. California Dep’t of

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Health Care Services, 712 F.3d 461, 466 (9th Cir. 2013) (quoting Taylor v. Westly, 402 F.3d 924,

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929–30 (9th Cir. 2005)). However, the Eleventh Amendment does not generally bar suits for

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prospective declaratory or injunctive relief against state officials acting in their official capacities

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for violations of federal law. North East Medical Services, Inc., 712 F.3d at 466; Coalition to

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Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012).

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A state can waive Eleventh Amendment immunity, but the consent must be expressed

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unequivocally. Young v. Hawaii, 911 F.Supp.2d 972, 982 (D. Haw. 2012). California has not
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1

waived immunity for claims brought for injunctive relief or damages pursuant to section 1983.

2

Brown v. California Dep’t Corrections, 554 F.3d 747, 752 (9th Cir. 2009).

3

While Plaintiffs contend that there is supplemental jurisdiction to pursue the claims

4

against the State and CDCR, Plaintiffs seek to bring claims on the theories of negligence and

5

premises liability for failure to operate and maintain the facilities in a manner to insure it was

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reasonably safe and habitable, and had no defects that constituted a dangerous condition. (ECF

7

No. 22 at ¶ 112.)

8

Under California law,

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a public entity is liable for injury caused by a dangerous condition of its property
if the plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk of
the kind of injury which was incurred, and that either:

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(a) A negligent or wrongful act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition
under Section 835.2 a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.
Cal. Gov. Code § 835. However, Government Code Section 844.6 is an exception to liability

16
providing that a prisoner cannot recover from a public entity for an injury that was caused by a
17
dangerous condition of public property. Hart v. Orange County, 254 Cal.App.2d 302, 306 (1967).
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The first amended complaint fails to state a claim against Defendants State of California
19
and CDCR. Brown, 554 F.3d at 752 (As an agency of the State of California, CDCR is entitled to
20
Eleventh Amendment immunity).
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C.

Injunctive Relief

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Defendants contend that Plaintiffs are seeking to have out of custody Plaintiffs provided
23

with medical care at the States’ expense. Defendants argue that Plaintiffs seek a fund to pay for

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medical payment and monetary damages are adequate to compensate for their injury. (ECF No.
25
25-1 at 8-9.) Plaintiffs contend that they are seeking a court supervised treatment program for
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Plaintiffs who are no longer in the custody of the CDCR because they need daily medications and
27
regular check-ups to control their disease. (ECF No. 32 at 22-23.)
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“To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success

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on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are

3

inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public

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interest would not be disserved by a permanent injunction.”

5

Apprenticeship Program v. California Dep’t of Industrial Relations, 730 F.3d 1024, 1032 (9th Cir.

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2013).

Independent Training and

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In addition, as to those Plaintiffs that are in custody at the time this action is filed, any

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award of equitable relief is governed by the Prison Litigation Reform Act, which provides in

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relevant part, “[p]rospective relief in any civil action with respect to prison conditions shall

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extend no further than necessary to correct the violation of the Federal right of a particular

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plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court

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finds that such relief is narrowly drawn, extends no further than necessary to correct the violation

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of the Federal right, and is the least intrusive means necessary to correct the violation of the

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Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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Additionally, injunctive relief is only appropriate if monetary damages or other legal

16

remedies will not compensate the plaintiffs for their injuries. Walters v. Reno, 145 F.3d 1032,

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1048 (9th Cir. 1998). While, ultimately, there may be a finding that monetary damages are

18

sufficient to compensate the out of custody Plaintiffs for their injuries, that is not a determination

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that can be made at this point in the proceedings. Accordingly, Plaintiffs may choose to amend

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their complaint to seek injunctive relief.

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D.

Qualified Immunity

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Finally, Defendants contend they are entitled to qualified immunity because no case has

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held that African-Americans, individuals over the age of 55, or immune compromised prisoners

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had a constitutional right to be excluded from PVSP or ASP by virtue of those classifications.

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(ECF No. 25-1 at 10.) Plaintiffs respond that it is clearly established that inmates have a

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constitutional right not to have their serious medical needs disregarded. (ECF No. 32 at 23-26.)

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The doctrine of qualified immunity protects government officials from civil liability

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where “their conduct does not violate clearly established statutory or constitutional rights of
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1

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

2

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects “all but

3

the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct.

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2074, 2085 (2011) (citations omitted).

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immunity the court uses a two part inquiry. Saucier v. Katz, 533 U.S. 194, 200 (2001) overruled

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in part by Pearson v. Callahan, 555 U.S. 223. The court determines if the facts as alleged state a

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violation of a constitutional right and if the right is clearly established so that a reasonable official

8

would have known that his conduct was unlawful. Ashcroft, 131 S. Ct. at 2083. “The linchpin

9

of qualified immunity is the reasonableness of the official’s conduct.” Rosenbaum v. Washoe

10

To determine if an official is entitled to qualified

County, 654 F.3d 1001, 1006 (9th Cir. 2011).

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Defendants argue that no case had established that the subclasses at issue here could not

12

be housed at PVSP or ASP due to those classifications. However, there does not have to be a

13

case directly on point for it to be clearly established that conduct would violate the Eighth

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Amendment. Ashcroft, 131 S.Ct. at 2084; Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011).

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The state of the law is sufficiently clear if it gives fair warning to the official that his conduct is

16

unconstitutional.

17

“‘Clearly established’ means that ‘it would be clear to a reasonable [prison official] that his

18

conduct was unlawful in the situation he confronted.’ ” Wilkins v. City of Oakland, 350 F.3d

19

949, 954 (9th Cir. 2003) (quoting Saucier, 533 U.S. at 202).

A.D. v. California Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013).

20

It is well established that prison officials who are aware that inmates face a substantial risk

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of serious harm, violate the Eighth Amendment by disregarding that risk and failing to take

22

reasonable measures to abate it.

23

Amendment violation for failure to prevent harm, the objective component is met if an inmate

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shows that he is incarcerated under conditions posing a substantial risk of harm. Clouthier v.

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County of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010); see Hearns v. Terhune, 413 F.3d

26

1036, 1040 (9th Cir. 2005) (prison officials may be liable for failure to protect inmate from attack

27

by other inmates).

28

Farmer, 511 U.S. at 847.

In cases alleging an Eighth

In this instance, Plaintiffs contend that Valley Fever is a serious infectious disease that can
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1

be progressive, painful and debilitating. (ECF No. 22 at ¶¶ 30, 32.) Plaintiffs also contend that

2

prison officials knew that inmates in Plaintiffs’ subclasses are at an increased risk of contracting

3

Valley Fever. (Id. at ¶¶ 34, 39.) “[W]hen the State takes a person into its custody and holds him

4

there against his will, the Constitution imposes upon it a corresponding duty to assume some

5

responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dep’t of

6

Social Services, 489 U.S. 189, 199-200 (1989). Prison officials cannot ignore an unsafe condition

7

because no injury has occurred. Helling v. McKinney, 509 U.S. 25, 33 (1993) (subjecting inmate

8

to danger of excessive level of second hand smoke may violate the Eight Amendment).

9

Similarly, the Ninth Circuit has addressed circumstances in which inmates were housed in

10

situations that placed them at a serious risk of contracting a contagious disease and found that it

11

could be deliberate indifference. See Brigaerts v. Cardoza, 952 F.2d 1399, at *2 (9th Cir. 1992)

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(unpublished opinion) (“Repeated exposure to contagious diseases may violate the [E]ighth

13

[A]mendment”. . . .); Muhammad v. Turbin, 199 F.3d 1332, at *2 (9th Cir. 1999) (unpublished)

14

(recognizing that inmate could state a claim for deliberate indifference if contagious inmates were

15

housed in dangerous proximity to healthy inmates). The Court finds this situation sufficiently

16

similar to Brigaerts and Muhammad to place prison officials on notice that subjecting inmates to a

17

substantial risk of contracting a serious disease without taking steps to protect them would violate

18

the Eighth Amendment.

19

The law was sufficiently clear prior to the claims raised here that if prison officials are

20

aware that certain inmates are at a significantly higher risk of contracting a disease based upon

21

identifiable criteria, it would be deliberate indifference to fail to take action to protect those

22

inmates. Defendants’ motion to dismiss the claims against the individual defendants on the basis

23

of qualified immunity should be denied.

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V.

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CONCLUSION AND RECOMMENDATION

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ motion to
dismiss should be GRANTED IN PART AND DENIED IN PART as follows:
1.

Defendants’ motion to dismiss the claims against Edmund G. Brown, Jr. should be
18

1

GRANTED;

2

2.

Defendants’ motion to dismiss the Eighth Amendment claims against Matthew

3

Cate, Jeffrey Beard, P.D. Brazelton, and James D. Hartley for failure to state a

4

claim should be DENIED;

5

3.

6

Defendants’ motion to dismiss the racial discrimination claims as violating the
Fourteenth Amendment for failure to state a claim should be GRANTED;

7

4.

Defendants’ motion to dismiss the racial discrimination claim pursuant to 42

8

U.S.C. § 1981 for failure to state a claim should be GRANTED without leave to

9

amend;

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5.

11

Defendants’ motion to dismiss claims against Defendants in their official
capacities should be GRANTED;

12

6.

13

Defendants motion to dismiss claims against Defendants State of California and
CDCR should be GRANTED without leave to amend;

14

7.

15

Defendants’ motion to dismiss the state law negligence claims for failure to state a
claim should be GRANTED;

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8.

17

Defendants’ motion to dismiss the claims for damages on the basis of qualified
immunity should be DENIED; and

18

9.

19

Plaintiffs should be granted an opportunity to file an amended complaint to cure
the deficiencies described in this order.

20

These findings and recommendations are submitted to the district judge assigned to this

21

action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen

22

(14) days of service of this recommendation, any party may file written objections to these

23

findings and recommendations with the Court and serve a copy on all parties. Such a document

24

should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

25

district judge will review the magistrate judge’s findings and recommendations pursuant to 28

26

//

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//

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//
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U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified

2

time may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153

3

(9th Cir. 1991).

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6

IT IS SO ORDERED.
Dated:

February 20, 2014
UNITED STATES MAGISTRATE JUDGE

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