Beagle, et al. v. Schwarzenegger, et al.
Filing
64
FINDINGS and RECOMMENDATIONS recommending granting in part and denying in part defendants Beard, Brazelton, Brown, Cate, Hubbard, Hysen, Rothchild and Schwarzeneggar's Motion to Dismiss and granting defendants Igbinosa and Winslow's Motion to Dismiss. Matter referred to Judge O'Neill. Signed by Magistrate Judge Stanley A. Boone on 6/24/2014. (Hernandez, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FREDERICK BEAGLE, et al.,
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Case No. 1:14-cv-00430- LJO-SAB
Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, et al.,
Defendants.
FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING IN PART AND
DENYING IN PART DEFENDANTS BEARD,
BRAZELTON, BROWN, CATE, HUBBARD,
HYSEN, ROTHCHILD, AND
SCHWARZENEGGAR’S MOTION TO DISMISS
AND GRANTING DEFENDANTS IGBINOSA
AND WINSLOW’S MOTION TO DISMISS
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(ECF Nos. 25-26, 27-28, 51, 54, 55, 56, 58)
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OBJECTIONS DUE WITHIN FOURTEEN DAYS
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Plaintiffs filed this action on February 5, 2014. Currently before the Court are two
motions to dismiss, filed May 5, 2014.
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I.
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PROCEDURAL HISTORY
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Plaintiffs Frederick Beagle, Don Belardes, Floyd Boyd, Richard Burke, Joseph
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Bustamonte, Charles Carter, Otha Clark, Donald Dibble, Jerome Felder, Candelario Garza,
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Jeremy Hollis, Scott Imuta, Infinity, George Johnson, Bruce Koklich, Grady Montgomery, Peter
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Romero, Josh Thomas, Aaron Tillis, Rene Villanueva, Bertrum Westbrook, and Wayne Woods
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(“Plaintiffs”) filed a complaint in this action against Defendants Arnold Schwarzenegger,
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Edmund G. Brown , Jeffrey A. Beard, Paul D. Brazelton, Matthew Cate, James D. Hartley, Susan
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L. Hubbard, Deborah Hysen, Dr. Felix Igbinosa, Chris Meyer, Tanya Rothchild, Dr. Dwight
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Winslow, and James A. Yates alleging reckless exposure to dangerous conditions and deliberate
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indifference to serious medical needs in violation of the Eighth Amendment and negligence under
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California law in the Sacramento Division of the Eastern District of California on February 6,
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2104. (ECF No. 2.) On March 26, 2014, this action was transferred to the Fresno Division of the
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Eastern District of California. (ECF No. 11.) On March 27, 2014 an order issued relating this
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action to Jackson et al. v. State of California, et al., 1:13-cv-01055-LJO-SAB, a class action
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raising similar claims, and Smith v. Schwarzenegger, 1:14-cv-00430-LJO-SAB. (ECF No. 14.)
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On May 5, 2014, Defendants Beard, Brazelton, Brown, Cate, Hubbard, Hysen, Rothchild,
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and Schwarzenegger filed a motion to dismiss and request for judicial notice. (ECF Nos. 25, 26,
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28.) On this same date, Defendants Igbinosa and Winslow filed a motion to dismiss and a notice
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of joinder in the motion to dismiss filed by the co-defendants. (ECF Nos. 27, 29.)
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On May 9, 2014, the Court issued an order to show cause why this action should not be
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consolidated with the related cases. (ECF No. 34.) On May 20, 2014, Plaintiffs filed a notice of
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voluntary dismissal of Defendant Kelso. (ECF No. 36.)
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On May 21, 2014, responses to the order to show cause were filed. (ECF No. 37, 39.) On
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May 22, Defendant Kelso was dismissed without prejudice and an additional response to the
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order to show cause was filed by Defendants Kelso and Winslow. (ECF Nos. 40, 42.) On May
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29, 2014, Plaintiffs filed a notice of related case and Defendants Hartley and Yates filed a notice
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of joinder in Defendants’ motion to dismiss. (ECF Nos. 46, 47.) On May 30, 2014, an order
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issued relating this action to Abukar et al. v. Schwarzenegger, et al., 1:14-cv-00816-SAB.
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Abukar et al. v. Schwarzenegger, et al., 1:14-cv-00816-SAB at ECF No. 11. On June 4, 2014,
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Defendants filed a supplement to the motion to dismiss. (ECF No. 51.)
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On June 4, 2014, Plaintiffs filed oppositions to the motions to dismiss. (ECF Nos. 54, 55.)
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On June 11, 2014, Defendants Beard, Brazelton, Brown, Cate, Hartley, Hubbard, Hysen, Meyer,
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Rothchild, Schwarzenegger, and Yates filed a reply and an amended reply, and Defendants
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Igbinosa and Winslow filed a reply and a notice of joinder in the co-defendants’ reply. (ECF
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Nos. 56, 48, 59.) On June 12, 2014, Defendants Igbinosa and Winslow filed a notice of joinder in
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the co-defendants’ amended reply. (ECF No. 61.)
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The Court heard oral arguments on June 18, 2014. (ECF No. 63.) Counsel Benjamin
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Pavone appeared telephonically and counsel Gregg Zucker and David Elliot appeared for
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Plaintiffs; counsel Michelle Angus appeared for Defendants Schwarzenegger, Beard, Brazelton,
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Cate, Hartley, Hubbard, Hysen, Rothchild, Meyer, Yates, and Brown; and counsel Susan
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Coleman appeared for Defendants Igbinosa and Winslow. Id. Having considered the moving,
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opposition and reply papers, the declarations and exhibits attached thereto, arguments presented
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at the June 18, 2014 hearing, as well as the Court’s file, the Court issues the following findings
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and recommendation.
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II.
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RELEVANT COMPLAINT ALLEGATIONS
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Plaintiffs contend that Coccidioidomycosis (“Valley Fever”) is carried by organisms that
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live in the soil in certain limited geographic areas. (First Am. Compl. ¶ 5, ECF No. 2.) Most
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individuals who contract Valley Fever have no symptoms or mild to moderate flu-like symptoms.
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(Id. at ¶ 6.) However, in certain ethnic and racial groups, including African-Americans, Filipinos
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and other Asians, Hispanics, and American Indians, as well as those who are immune-
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compromised or immune-suppressed, the disease can rapidly progress to a disseminated form.
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(Id.) In the disseminated form the disease attacks multiple organs requiring the individual to need
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life-long treatment and possibly causing brain damage or death. (Id. at ¶ 7.)
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Plaintiffs to this action are inmates or former inmates of the state correctional system that
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contracted Valley Fever. (Id. at ¶ 8.) Plaintiffs contend that Defendants were aware of the danger
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of contracting Valley Fever and failed to take action to protect them from the disease. (Id. at ¶¶
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9-12.)
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Plaintiffs allege that Defendant Schwarzenegger was the Governor of California from
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2003 through 2011 when the Valley Fever epidemic began and it sharply escalated during that
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time period. (Id. at ¶ 14.) Defendant Schwarzenegger acknowledged that inmates were coming
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down with Valley Fever but took no action to address the epidemic.
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Schwarzenegger had the authority to establish CDCR policies and practices and failed to adopt a
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(Id.)
Defendant
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policy that would have prevented high risk inmates from being located at or remaining at hyper-
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endemic prisons.
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subordinates to authorize major construction at or immediately adjacent to the hyper-endemic
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prison at Pleasant Valley. (Id. at ¶ 17.)
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(Id. at ¶ 15.)
Defendant Schwarzenegger condoned the decision by his
Defendant Brown, the current Governor of California, continued the state policies and
practices put in place by Defendant Schwarzenegger. (Id. at ¶ 19.)
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Defendant Beard is the current Secretary of the California Department of Corrections and
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Rehabilitation (“CDCR”). (Id. at ¶ 20.) Defendant Beard is responsible for the policies and
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practices of the CDCR as well as the day to day operational decisions. (Id.) Defendant Beard
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allowed the policies set in place by his predecessor to continue. (Id.)
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Defendant Cate was the Secretary of CDCR from 2008 through 2012. (Id. at ¶ 21.)
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Defendant Cate created and continued policies that allowed transfer of inmates and failed to
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protect high risk prisoner groups. (Id.)
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Defendant Hubbard is the former Director of CDCR’s Division of Adult Operations and
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was personally involved in the decision to adopt a policy that continued to allow Plaintiffs to be
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housed in hyper-endemic prisons. (Id. at ¶ 22.) The policy acknowledged the health risk to
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medically compromised inmate groups but omitted exclusion of inmates at risk due to ethnicity or
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race. (Id.)
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Defendant Rothchild is the former Chief of CDCR’s Classification Services Unit
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(“CSU”).
(Id. at ¶ 23.)
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assignment of inmates to prisons and making the ministerial decisions to assign each individual
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inmate to a specific prison. (Id.) Defendant Rothchild created and continued policies authorizing
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transfer of at risk inmates to hyper-endemic prisons. (Id.)
The CSU is responsible for setting policies to assign or prevent
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Defendant Hysen is the Chief Deputy Secretary of the CDCR Executive Office of Facility
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Planning, Construction and Management. (Id. at ¶ 24.) Defendant Hysen did not implement any
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environmental mitigation measures that were identified to reduce the risk of infection to
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Plaintiffs. (Id.)
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Defendant Meyer is Senior Chief of CDCR Executive Office of Facility Planning,
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Construction and Management.
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environmental mitigation measures at the hyper-endemic prisons. (Id.)
(Id. at ¶ 25.)
Defendant Meyer did not implement any
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Defendant Winslow is the former Statewide Medical Director for CDCR. (Id. at ¶ 27.) In
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June 2007, Defendant Winslow authored a memo disclosing that CDCR was aware of the risk of
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infection at hyper-endemic prisons and that the risk was greater for certain ethnic groups. (Id.)
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The memorandum included recommendations to reduce the infection rate inside the prison. (Id.)
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In November 2007, Defendant Winslow made policy recommendations that did not include
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exclusion of inmates based upon their racial or ethnic group.
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personally participated in the adoption of policies that allowed high risk inmates to continue to be
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(Id.)
Defendant Winslow
transferred to institutions that were experiencing epidemic levels of Valley Fever. (Id. at ¶ 28.)
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Defendant Brazelton was Warden of Pleasant Valley State Prison (“PVSP”). (Id. at ¶ 29.)
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Defendant Brazelton failed to take any action to correct the unsafe conditions at the prison, to
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prevent Plaintiffs from being housed there, or to protect inmates from contracting Valley Fever.
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(Id.)
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Defendant Yates was the Warden of PVSP from 2005 through 2012. (Id. at ¶ 30.)
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Defendant Yates was aware of the Valley Fever epidemic yet failed to adopt policies or
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procedures to avoid the transfer of high risk inmates into the prison or protect those high-risk
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inmates housed at PVSP. (Id.)
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Defendant Hartley is the current Warden at Avenal State Prison (“ASP”). (Id. at ¶ 31.)
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Defendant Hartley made an independent decision to accept certain Plaintiffs at ASP. (Id.)
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Defendant Hartley is responsible for the operations of ASP and continued the policy to accept at-
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risk prisoners and failed to implement basic remedial measures to make the facility safe. (Id.)
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Defendant Igbinosa is the Medical Director at PVSP. (Id. at ¶ 32.) Defendant Igbinosa
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was aware of the epidemic incidence rates of disease and medical risks to Plaintiffs and failed to
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take any action to address the epidemic or reduce inmate exposure to the disease.
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Defendant Igbinosa did not implement a prison-level policy of screening inmates for risk of
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contracting Valley Fever. (Id.)
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(Id.)
Plaintiffs contend that Defendants have had notice of the risk of Valley Fever for over
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fifty years based upon publications in the American Journal of Public Health. (Id. at ¶¶ 53-55.)
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Between 1987 and 1997, the CDCR built eight prisons within the endemic and hyper-endemic
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regions of the Central Valley. (Id. at ¶ 54.) Plaintiffs contend that PVSP was extraordinarily
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dangerous in regards to exposing inmates to Valley Fever because the soil surrounding and under
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PVSP is densely contaminated with Coccidioides fungus. (Id. at ¶¶ 55, 57.) The prison grounds
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contain broad expanses of bare dirt without any vegetation which allows the spores to circulate in
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the air and into the buildings. (Id. at ¶ 58.)
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In November 2004, Renee Kanan, Deputy Director of Health Care Services, wrote a
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memo to all health care managers, staff and CDCR officials regarding Valley Fever and its origin
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in soil. (Id. at ¶ 59.) The memo stated that Central Valley prisons are located within areas that
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host the fungus in the soil; Valley Fever can be lethal for people exposed to the fungus; winds and
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construction activity may cause the organism to be blown into the air where it could be inhaled;
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this may cause a percentage of individuals to catch pneumonia or disseminated disease; the risk of
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disseminated disease is highest in American Indians, Asians, Blacks, and immuno-compromised
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individuals. (Id. at ¶ 60.) Plaintiffs contend this memo was and is still widely distributed within
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CDCR. (Id. at ¶ 61.) A compromised immune system can be caused by chronic diseases such as
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diabetes, HIV, lung disease, organ transplant, or taking TNF inhibitors as medication for arthritis.
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(Id. at ¶ 88.) Individuals over the age of fifty five have also been found to be at increased risk of
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developing severe disseminated disease. (Id.)
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In 2005, PVSP began to experience an epidemic of Valley Fever. (Id. at ¶ 62.) The
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infection rates at PVSP were as much as 1,000 times the rate seen in the local population. (Id. at
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¶ 63.) An October 27, 2006 memo described the infection rates within the CDCR and the rates at
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PVSP had increased by more than 445% between 2001 and 2005, and by over 2,500% by 2006.
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(Id. at ¶¶ 64, 65.)
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In 2005, a prisoner rights group sent an informational briefing to Defendant
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Schwarzenegger describing the threat of Valley Fever and the threat to African-Americans,
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Filipinos, elderly inmates, and the immune-compromised. (Id. at ¶ 101.) In 2006, the prison
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system accounted for 30% of all Valley Fever cases reported to the State Department of Health.
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(Id. at ¶ 66.)
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After the 2005 outbreak at PVSP, California Corrections Health Care Services
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(“CCHCS”) requested and received assistance from the California Department of Public Health
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(“CDPH”) in assessing and controlling cocci at PVSP. (Id. at ¶ 68.) CDPH reported that the rate
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of Valley Fever cases at PVSP was 38 times the rate of residents of Coalinga and 600 times the
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rate in Fresno County. (Id. at ¶ 69.) The increased rate at CDPH was reported as associated with
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increased outdoor time, pre-existing health conditions, and African-American race. (Id.)
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An August 2006 internal memorandum confirmed that Defendants were aware that
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inmates were being housed in hyper-endemic locations. (Id. at ¶ 70.) During 2006 through 2010
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the rates of Valley Fever at PVSP, ASP, Wasco State Prison, and North Kern State Prison were
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significantly higher than rates in the counties in which they are located. (Id. at ¶ 71.) Of the
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twenty-seven inmates who died of Valley Fever between 2006 and 2010 sixty eight percent of
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them were African-American. (Id. at ¶ 73.) The rapid and continued increase in Valley Fever at
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PVSP in 2005/2006 was attributed to new construction next to the prison.
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Defendants increased this risk by deciding to construct a new mental hospital facility immediately
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adjacent to the prison. (Id. at ¶ 75.)
(Id. at ¶ 74.)
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Following the start of construction, the number of Valley Fever cases increased. (Id. at ¶
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77.) By mid-August 2006, PVSP had recognized 300 new cases of Valley Fever. (Id.) The
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excavation and construction adjacent to the prison placed an inordinate amount of Coccidioides
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spores into the air in and around the prison. (Id. at ¶ 77.)
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In 2006 and 2007, a Fresno County Grand Jury evaluated inmate health status at PVSP
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and made a series of recommendations. (Id. at ¶ 94.) The report stated that inmates and staff
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continue to be at great risk from Valley Fever, and that African-American, Hispanic, Filipino, and
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other Asian inmates were at a far greater risk than other ethnicities. (Id. at ¶¶ 96, 99.) These
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reports were issued to Defendants Beard, Brazelton, Yates, and Cate and were forwarded to other
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CDCR officials. (Id. at ¶ 97.)
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In January 2007, a study by the California Department of Public Health, Center for
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Infectious Disease was published. (Id. at ¶ 108.) The study found that the number of cases of
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Valley Fever reported at PVSP in 2005 was three times that of the rest of Fresno County. (Id. at ¶
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109.) The study reported that individuals with a suppressed immune system, African-Americans,
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Hispanics, Filipinos, and other Asians are at a higher risk of developing disseminated disease.
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(Id.) The study, which was widely circulated within CDCR, recommended relocating those
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inmates at highest risk to areas not in the hyper-endemic area and to take steps to minimize
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exposure to Valley Fever, including ventilation, respiratory protection and dust suppression and
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soil control. (Id. at ¶ 110.)
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In a January 11, 2007, memo to the CDCR informed the Department of Public Health
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(“DPH”) that studies have suggested that the risk of complications is increased for individuals of
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African or Filipino descent and heavily immuno-suppressed individuals. (Id. at ¶ 91.) The DPH
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concluded that exclusion of these high-risk inmates was the most effective method to decrease the
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risk of Valley Fever infections. (Id.)
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In June 2007, CCHCS issued recommendations, including landscaping with ground cover
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and concrete, diverting and relocating inmates at high risk, and not expanding prison beds in the
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hyper-endemic areas, especially at PVSP. (Id. at ¶ 80.) In August 2007, Prison Legal News ran
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an article detailing the source, exposure, prognosis, and risk factors for Valley Fever in the
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subject prisons. (Id. at ¶ 113.)
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In September 2007, Defendant Schwarzenegger proposed that California construct new
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dormitories at PVSP to expand the number of prisoners housed there. (Id. at ¶ 103.) When
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questioned during a press conference about the proposed expansion exposing more prisoners to
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Valley Fever, Defendant Schwarzenegger indicated he was not concerned and that they would go
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ahead and build. (Id. at ¶ 104.)
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In November 2007, prison officials issued a formal exclusion policy for inmates with
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certain medical conditions, but did not include inmates at high risk due to their ethnicity or race.
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(Id. at ¶ 80.) During 2007, CDCR Facilities Department officials, including Defendant Hysen,
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stated that they were preparing measures to reduce the risk to inmates of contracting Valley Fever
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at PVSP. (Id. at ¶ 115.) The plan, which included extensive measures to control inmate’s
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exposure to contaminated soil and ventilation systems inside the buildings was never
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implemented. (Id. at ¶¶ 116, 117.)
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During 2007, Defendant Yates was quoted in an article by the New York Times as stating
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the inmates and staff at PVSP contracted Valley Fever from breathing the spores in the air as they
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walk around. (Id. at ¶ 119.) From 2007 through 2010, the rate of Valley Fever at PVSP was six
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times higher than the rate of infection at the adjacent state mental health facility. (Id. at ¶ 81.)
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After a federal health agency project was terminated, in December 2009 officials from the
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Centers for Disease Control and National Institute for Occupational Safety and Health wrote
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letters to the CDCR stating that African-American, Asian or Filipino, or immuno-compromised
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individuals were at a greater risk of developing disseminated infection. (Id. at ¶ 82.)
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In 2011, CDCR sprayed a temporary sealant on some soils at PVSP. (Id. at ¶ 179.)
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During an October 2011 press conference, Defendant Schwarzenegger announced that the State’s
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policy and practice of transferring prisoners to PVSP would continue unabated despite the risk of
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Valley Fever. (Id. at ¶ 83.)
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In April 2012, the CCHCS released a report finding that CDCR had done nothing between
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2006 and 2010 that had any effect on cocci incidence rates at PVSP and ASP. (Id. at ¶ 124.) The
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report indicated that Valley Fever incidence rates were drastically elevated and that African-
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Americans in particular were at an increased rate of contracting Valley Fever in its disseminated
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form. (Id. at ¶125.) The report found that PVSP had extensive areas of un-stabilized soil on its
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grounds. (Id. at ¶126.) Over 80 CDCR facility staff members have contracted Valley Fever and
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there has been at least one correctional officer who died from the disease. (Id. at ¶ 128.)
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In November 2012, the court-appointed receiver managing the prison health care system
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issued a recommendation. (Id. at ¶ 188.) The document recommended ceasing to transfer
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African-Americans, persons with diabetes, and those with no HIV results to PVSP and ASP. (Id.)
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In March 2013, CDCR installed dust control devices, such as air filters and door sweeps,
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in some prison facilities. (Id. at ¶ 180.) In April 2013, the Receiver’s staff experts found that
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African-Americans were at a 90% higher risk for disseminated cocci disease than white inmates,
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and other race categories were at 100% increased risk, and inmates over 55 years of age had a
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60% increased risk. (Id. at ¶ 189.)
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CDCR publishes an orientation manual for all medical personal that discusses the
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Coccidioiditis epidemic in detail and notes that African-Americans, Filipinos, and those with
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compromised immune systems or chronic diseases are at an increased risk of contracting Valley
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Fever. (Id. at ¶ 105.) The orientation manual is authorized and promulgated by Defendant
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Winslow. (Id. at ¶ 106.)
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Plaintiffs allege that the exposure to dangerous conditions subjects them to cruel and
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unusual punishment and exhibited deliberate indifference in violation of the Eighth Amendment
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and is negligence under California law. (Id. at ¶¶ 359-399.) Plaintiffs seek monetary damages.
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(Id. at 75-76.1)
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A.
Plaintiff Fredrick Beagle
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Plaintiff Beagle is a forty-one year old Caucasian male. (Id. at ¶ 201.) Prior to being
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housed at ASP, Plaintiff Beagle had elevated liver enzymes suggesting a compromised liver,
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blood clots in his legs, lower back pain, gout, and chronic pain from skin grafts. (Id. at ¶ 203.)
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Plaintiff Beagle was diagnosed with Valley Fever in March 2013. (Id. at ¶ 204.) Plaintiff Beagle
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has aching joints, back pain, severe headaches, night sweats, inflamed rashes on his head and
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legs, chest pain, and fatigue. (Id.)
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B.
Plaintiff Don Belardes
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Plaintiff Belardes is a forty year old of Native American and Spanish descent. (Id. at ¶
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208.) Plaintiff Belardes was transferred to PVSP in May of 2010. (Id. at ¶ 209.) Plaintiff
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Belardes was diagnosed with Valley Fever in October of 2011. (Id. at ¶ 211.) Plaintiff Belardes
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has had bronchitis and pneumonia that are resistant to treatment and suffers from back spasms
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and pain. (Id. at ¶ 212.)
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C.
Plaintiff Floyd Boyd
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Plaintiff Boyd is a forty-nine year old African-American. (Id. at ¶ 217.) Plaintiff Boyd
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was transferred to PVSP in 2012 and remained housed there until his release from prison. (Id. at
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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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¶ 218.) Plaintiff was diagnosed with Valley Fever on September 11, 2013. (Id. at ¶ 219.)
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Plaintiff Boyd continues to experience coughing, night sweats, joint pain, headaches, fevers and
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chill. (Id. at ¶ 22.)
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D.
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Plaintiff Burke is a fifty-two year old Caucasian male who was transferred to PVSP on
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January 2010. (Id. at ¶¶ 225, 226.) Plaintiff Burke was diagnosed with Valley Fever around
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February 2012. (Id. at ¶ 228.) Plaintiff Burke suffers from lesions on his arms and legs, swelling
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and skin rashes all over his body, shortness of breath, and aching joints. (Id. at ¶ 229.)
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E.
Plaintiff Richard Burke
Plaintiff Joseph Bustamonte
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Plaintiff Bustamonte, a former inmate, is a thirty-year old Hispanic male who was
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transferred to PVSP on December 9, 2010. (Id. at ¶ 234, 235.) Plaintiff Bustamonte was
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diagnosed with Valley Fever about July 30, 2011. (Id. at ¶ 235.) Plaintiff Bustamonte does not
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allege any current symptoms from Valley Fever.
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F.
Plaintiff Charles Carter
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Plaintiff Carter is a forty-two year old African-American who was transferred to PVSP in
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March 2011. (Id. at ¶¶ 241, 242. Plaintiff Carter was diagnosed with Valley Fever in June 2012.
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(Id. at ¶ 243.) Plaintiff Carter does not allege any current symptoms from Valley Fever.
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G.
Plaintiff Otha Clark
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Plaintiff Clark is a twenty-seven year old African-American who was transferred to PVSP
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in 2009. (Id. at ¶¶ 247, 248.) Prior to his transfer, Plaintiff Clark had asthma. (Id. at ¶ 248.)
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Plaintiff contracted Valley Fever around December 10, 2010, and was diagnosed in February
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2011. (Id. at ¶ 250.) Plaintiff has been admitted to the hospital over twenty times in the last year
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and suffers from persistent coughs, fevers and night sweats, and has trouble eating, drinking, and
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struggles to maintain his weight. (Id. at ¶¶ 251, 252.)
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H.
Plaintiff Donald Dibble
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Plaintiff Dibble is a thirty-five year old male with chronic asthma. (Id. at ¶ 255.) Plaintiff
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was incarcerated at ASP in August of 2012 when he was treated for Valley Fever. (Id. at ¶ 256.)
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Plaintiff Dibble does not allege any current symptoms from Valley Fever.
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1
I.
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Plaintiff Felder is a thirty-six year old African-American who was transferred to PVSP in
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August of 2011. (Id. at ¶ 261.) Plaintiff was diagnosed with Valley Fever in January 2012. (Id.
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at ¶ 262.) Plaintiff Felder does not allege any current symptoms from Valley Fever.
Plaintiff Jerome Felder
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J.
Plaintiff Candelario Garza
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Plaintiff Garza is a fifty-nine year old Hispanic male who was transferred to PVSP in June
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2007.
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compromised immune system. (Id. at ¶ 265.) Plaintiff Garza was formally diagnosed with
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Valley Fever on December 14, 2010. (Id. at ¶ 266.) Plaintiff has developed pneumonia and
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(Id. at ¶¶ 264, 265.)
Prior to his transfer, Plaintiff Garza had Hepatitis C and a
Chronic Obstructive Pulmonary Disease, and blood clots in his legs and lungs. (Id. at ¶ 267.)
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K.
Plaintiff Jerry Hollis
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Plaintiff Hollis is a forty year old Caucasian male who was transferred to PVSP in
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December 2010. (Id. at ¶¶ 274, 275.) Plaintiff was treated for Valley Fever, but was not formally
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tested and has been told that he does not have Valley Fever. (Id. at ¶ 277.) Plaintiff has shortness
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of breath and recurrence of the symptoms which initiated his treatment for Valley Fever. (Id. at ¶
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277.)
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L.
Plaintiff Scott Imuta
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Plaintiff Imuta, a former inmate, is a forty-seven year old Japanese-American male who
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was housed at PVSP from 2005 through 2009. (Id. at ¶¶ 280, 281.) Plaintiff Imuta alleges he has
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had symptoms of Valley Fever since December 2010, but was not diagnosed until March 2012.
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(Id. at ¶¶ 283, 284.) Plaintiff Imuta’s immune system is now compromised, he has contracted
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hepatitis and has constant staph infections. (Id. at ¶ 286.) Plaintiff Imuta coughs constantly, has
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very high blood pressure, and suffers from depression. (Id. at ¶ 286.)
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M.
Plaintiff Infinity
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Plaintiff Infinity is a sixty-six year old African-American male who was transferred to
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PVSP in May of 2011. (Id. at ¶ 291.) Plaintiff Infinity was diagnosed with Valley Fever in
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October of 2011. (Id.) The disseminated Valley Fever infection formed a mass on his left side
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that required surgery and the disseminated cocci has been detected in his spine. (Id. at ¶ 292.)
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Plaintiff does not allege any current symptoms from Valley Fever.
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N.
Plaintiff George Johnson
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Plaintiff Johnson, a former inmate, is a thirty-one year old African-American who was
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housed at PVSP for a brief sentence. (Id. at ¶¶ 296, 300.) Plaintiff Johnson was diagnosed with
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Valley Fever on February 15, 2012. (Id. at ¶ 297.) Plaintiff Johnson has problems breathing,
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difficulty walking, aching bones and fatigue. (Id. at ¶ 298.)
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O.
Plaintiff Bruce Koklich
8
Plaintiff Koklich is a fifty-four year old Caucasian male who was housed at PVSP from
9
September 2008 through May 2009 during construction on the adjacent mental health facility.
10
(Id. at ¶¶ 302, 304.) Plaintiff Koklich was diagnosed with Valley Fever on January 27, 2009. (Id.
11
at ¶ 303.) Plaintiff Koklich suffers from pain in his lungs, back, spine, left hip and both hands.
12
(Id. at ¶ 304.) Plaintiff also has skin lesions and rashes on his ankles, swelling in his legs and
13
trouble breathing. (Id. at ¶ 304.)
14
P.
Plaintiff Grady Montgomery
15
Plaintiff Montgomery is a forty-nine year old African-American male who was transferred
16
to PVSP on January 1, 2012. (Id. at ¶ 309.) Plaintiff Montgomery was diagnosed with Valley
17
Fever in December 2012. (Id. at ¶ 312.) Plaintiff Montgomery has fluid on his lungs, pain in his
18
body and joints, difficulty breathing, scaling skin, chronic itching and skin rashes. (Id. at ¶ 314.)
19
Q.
Plaintiff Peter Romero
20
Plaintiff Romero is a fifty-three year old Hispanic and Native American male who was
21
housed at PVSP until September 3, 2010. (Id. at ¶¶ 317, 318.) Prior to his transfer to PVSP,
22
Plaintiff Romero had a compromised immune system due to Hepatitis C. (Id. at ¶ 319.) Plaintiff
23
was diagnosed with Valley Fever after he was hospitalized on September 30, 2011, and a
24
subsequent test on June 23, 2011 confirmed the diagnosis. (Id. at ¶ 320.) Plaintiff Romero
25
underwent two surgeries as a result of his Valley Fever. (Id. at ¶ 321.) One surgery left him with
26
permanent nerve damage, back pain, and restricted mobility. (Id.)
27
R.
Plaintiff Josh Thomas
28
Plaintiff Thomas is a sixty year old African-American who had a weakened immune
13
1
system prior to being incarcerated. (Id. at ¶ 325, 326.) Plaintiff Thomas was housed at the
2
California Substance Abuse Treatment Facility and State Prison at Corcoran until 2012. (Id. at ¶
3
327.) Plaintiff Thomas was diagnosed with Valley Fever in January 2011. (Id. at ¶ 328.)
4
Plaintiff Thomas does not allege any current symptoms from Valley Fever.
5
S.
Plaintiff Aaron Tillis
6
Plaintiff Tillis is a thirty year old African-American who was transferred to PVSP in 2009.
7
(Id. at ¶¶ 333, 334.) Plaintiff Tillis was diagnosed with Valley Fever on February 21, 2012.
8
(Id.at ¶ 335.) Plaintiff Tillis suffers from generalized body aches, night sweats, skin rashes and
9
lesions, chronic fevers and trouble breathing. (Id. at ¶ 335.)
10
T.
Plaintiff Rene Villanueva
11
Plaintiff Villanueva is a twenty-six year old Hispanic male who was transferred to PVSP
12
in January 2011. (Id. at ¶¶ 339, 340.) Plaintiff Villanova was diagnosed with Valley Fever on
13
September 22, 2011. (Id. at ¶ 342.) Plaintiff suffers from severe pain throughout his body,
14
weight loss, labored breathing, chest and lung pain, excessive coughing, and rashes and swelling
15
of his lower legs. (Id. at ¶ 342.)
16
U.
Plaintiff Bertrum Westbrook
17
Plaintiff Westbrook is a thirty-seven year old African-American who was transferred to
18
PVSP in early 2009. (Id. at ¶¶ 346, 347.) Plaintiff Westbrook was diagnosed with Valley Fever
19
in 2010. (Id.) Plaintiff has aching joints that limit his movement, fevers, chest pain, nausea, and
20
back problems. (Id. at ¶ 349.)
21
V.
Plaintiff Wayne Woods
22
Plaintiff Woods is a fifty-eight year old African-American who was transferred to ASP on
23
August 8, 2012. (Id. at ¶¶ 353, 354.) Plaintiff Woods was diagnosed with Valley Fever on
24
October 30, 2012. (Id. at ¶ 355.) Plaintiff Woods has night sweats, chills, fever, rashes and
25
fatigue. (Id. at ¶ 355.)
26
III.
27
LEGAL STANDARD
28
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on
14
1
the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A
2
complaint must contain “a short and plain statement of the claim showing that the pleader is
3
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not
4
require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
5
unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
6
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
7
complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-
8
79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
9
conclusory statements, do not suffice.” Id. at 678.
In assessing the sufficiency of a
10
In deciding whether a complaint states a claim, the Ninth Circuit has found that two
11
principles apply. First, to be entitled to the presumption of truth the allegations in the complaint
12
“may not simply recite the elements of a cause of action, but must contain sufficient allegations of
13
underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”
14
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the
15
defendant to be subjected to the expenses associated with discovery and continued litigation, the
16
factual allegations of the complaint, which are taken as true, must plausibly suggest an
17
entitlement to relief. Starr, 652 F.3d at 1216.
18
IV.
19
ANALYSIS
20
All defendants appearing move to dismiss this action under Rule 12(b)(6) on the grounds
21
that the complaint 1) fails to allege any Defendant personally caused the alleged constitutional
22
deprivations; 2) fails to state sufficient facts to demonstrate deliberate indifference on the part of
23
any Defendant; 3) Plaintiffs Belardes, Carter, Clark, Felder, Garza, Hollis, Infinity, Koklich,
24
Montgomery, Romero, Thomas, Tillis, Villanueva, Westbrook, and Woods claims for future
25
medical care are not ripe; 4) the complaint includes misjoined parties and claims; 5) Plaintiffs
26
failed to comply with the Government Tort Claim Act; and 6) the complaint violates Rule 8 of the
27
Federal Rules of Civil Procedure. (Defs. Rothchild, Hysen, Meyer, Beard, Schwarzenegger,
28
Hubbard, Brazelton, and Brown’s Mot. to Dismiss 2, ECF No. 25.) Similarly, Defendants
15
1
Igbinosa and Winslow move to dismiss the complaint on the ground that the complaint fails to
2
show that they personally violated the constitution. (Defs. Igbinosa and Winslow’s Mot. to
3
Dismiss Pls.’ Compl. 9-13, ECF No. 27.)
4
Plaintiffs oppose the motions arguing that the complaint is sufficiently detailed to survive
5
a motion to dismiss, Plaintiffs can bring a claim for future medical care, Defendants failure to
6
comply with Government Code Section 53501 excuses Plaintiffs from the requirement that they
7
submit claim forms to the Victim Compensation Board, the parties are properly joined in this
8
action, and the complaint satisfies Rule 8. (Pls.’ Opp. to Defense 12(b)(6) Mot. 13-32, ECF No.
9
54; Pls.’ Brief in Opp. to Defs. Igbinosa and Winslow’s Mot. to Dismiss 9-13, ECF No. 62.)
10
A.
Personal Liability
11
Defendants argue that Plaintiffs’ complaint fails to state a claim as it does not allege that
12
Defendants personally violated the United States Constitution.
(ECF No. 25-1 at 12-15.)
13
Plaintiffs counter that the complaint contains sufficiently detailed facts to state a claim against the
14
defendants in this action. (ECF No. 54 at 13-16.)
15
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
16
other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
17
1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
18
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
19
demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal,
20
556 U.S. at 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010);
21
Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
To state a claim, Plaintiffs must
22
Under section 1983, liability may not be imposed on supervisory personnel for the actions
23
or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at
24
677; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934. “A
25
supervisor may be liable only if (1) he or she is personally involved in the constitutional
26
deprivation, or (2) there is ‘a sufficient causal connection between the supervisor's wrongful
27
conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir.
28
2013) (citations omitted). Supervisors may be held liable where they “participated in or directed
16
1
the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880
2
F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d at 1205-06; Corales v. Bennett, 567 F.3d
3
554, 570 (9th Cir. 2009).
4
During the June 18, 2014 hearing defendants argued that the present allegations are
5
sufficient to state a claim where they are plausible and under Iqbal the court may infer knowledge
6
from the facts pled in the complaint. However, under Twombly and Iqbal “a complaint must
7
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
8
face.” Iqbal, 556 U.S. at 678. This requires factual content for the court to draw the reasonable
9
inference that the defendant is liable for the alleged misconduct. Id. A complaint stops short of
10
the line between probability and the possibility of relief where the facts pled are merely consistent
11
with a defendant’s liability. Id. “[W]here the well-pleaded facts do not permit the court to infer
12
more than the mere possibility of misconduct,” the complaint has not shown that the plaintiff is
13
entitled to relief. Id. Further, while the court is to accept all “well pleaded factual allegations” in
14
the complaint as true, id. at 679, it is not bound to accept as true labels, conclusions, formulaic
15
recitations of the elements of a cause of action or legal conclusions couched as factual allegations,
16
Twombly, 550 U.S. at 555. The conclusory allegations in the complaint are not entitled to the
17
presumption of truth. Iqbal, 556 U.S. at 681.
18
Defendants also argued that the court should allow the complaint to go forward on what
19
the court deems conclusory allegations to allow discovery to determine if the defendants could be
20
liable for the conduct alleged. However, when the allegations in the complaint do not state a
21
claim for relief the court is to address the deficiency to avoid the expenditure of time and money
22
by the parties and the court. Twombly, 550 U.S. at 558.
23
1.
Defendant Brown
24
Plaintiffs appear to be blurring the line between official capacity and personal capacity
25
lawsuits and are attempting to bring claims against current officials based solely on their position
26
and the policies and procedures put in place by their predecessors.2 In an official capacity lawsuit
27
2
28
Plaintiffs are only seeking damages in this lawsuit. Plaintiffs may not bring suit against Defendants in their official
capacity. “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and
17
1
it is appropriate to name the current official as a defendant in the action, Fed. R. Civ. P. 25(d),
2
however to state a claim against the current official in their personal capacity requires allegations
3
showing that the official was personally involved, or there was a sufficient causal connection
4
between the supervisor's wrongful conduct and the constitutional violation. Crowley, 734 F.3d at
5
977. Plaintiffs have failed to set forth allegations to show that Defendant Brown had knowledge
6
of a risk to Plaintiffs and failed to act. Plaintiffs’ conclusory allegations that Defendant Brown
7
knew of the risk and continued the state policies and practices put in place by Defendant
8
Schwarzenegger is insufficient to show that Defendant Brown participated in any violation that
9
caused injury to Plaintiffs in this action. Defendants’ motion to dismiss Defendant Brown should
10
be granted.
11
2.
Defendants Beard and Brazelton
12
Plaintiffs contend that Defendants Beard and Brazelton had knowledge of the risk of
13
Valley Fever due to the Grand Jury reports. However, the complaint fails to allege when these
14
reports were provided to Defendants Beard and Brazelton. Additionally, the complaint does not
15
identify the position at CDCR that these defendants held during the time period in which
16
Plaintiffs contracted Valley Fever. Therefore, there is no information contained in the complaint
17
from which the Court can infer that Defendants Beard or Brazelton were liable for the policy to
18
house high risk inmates in the hyper-endemic area. Absent such factual allegations the complaint
19
is insufficient to link Defendants Beard or Brazelton to the alleged violations.
20
Further, Plaintiffs complaint fails to contain allegations to state a plausible claim that
21
Defendants Beard and Brazelton’s actions after they were appointed as the Secretary of CDCR or
22
Warden of PVSP contributed to the plaintiffs injuries. Absent such factual allegations the
23
complaint is insufficient to link Defendants Beard or Brazelton to the alleged violations.
24
Plaintiffs allege that Defendant Beard is the current Secretary of the CDCR, being
25
appointed to the position in December 2012. (ECF No. 2 at ¶ 20.) The only plaintiff to this
26
action who would state a claim as being at a substantial risk of harm, as discussed below, and was
27
28
state officials acting in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir.
2007).
18
1
diagnosed with Valley Fever after Defendant Beard was appointed as Secretary in December
2
2012 is Plaintiff Boyd. Plaintiff Boyd was transferred to PVSP in 2012 and was formally
3
diagnosed with Valley Fever in September 2013, however the complaint fails to allege when he
4
developed symptoms. The complaint fails to allege facts to show that Plaintiff Boyd was at a
5
substantial risk of harm during the time period that Defendant Beard was Secretary of the CDCR.
6
If Plaintiff Boyd had already contracted Valley Fever prior to Defendant Beard taking office, he
7
would no longer be exposed to the risk and for this reason, Plaintiff Boyd fails to state a claim
8
against Defendant Beard.
9
Similarly, Plaintiffs allege that Defendant Brazelton was the Warden of PVSP from
10
summer 2012 to fall of 2013. (Id. at ¶ 29.) Plaintiffs to this action contracted Valley Fever
11
between January 2009 and September 2013. (Id. at ¶¶ 201-355.). The only plaintiffs to this
12
action who are within the high risk groups that were diagnosed after Defendant Brazelton became
13
the Warden at PVSP were Plaintiffs Boyd, Montgomery, and Woods. Plaintiff Woods was
14
housed at ASP, not PVSP, and therefore he fails to state a claim against Defendant Brazelton.
15
Plaintiff Boyd fails to state a claim against Defendant Brazelton for the same reasons that his
16
allegations fail to state a claim against Defendant Beard. Finally, Plaintiff Montgomery became
17
ill around August 2012, and the allegations in the complaint fail to show that Defendant Brazelton
18
was Warden of PVSP prior to Plaintiff Montgomery becoming ill. Plaintiff Montgomery fails to
19
state a claim against Defendant Brazelton.
20
21
For these reasons, the complaint fails to state a claim against Defendants Beard and
Brazelton and Defendants motion to dismiss Defendants Beard and Brazelton should be granted.
22
3.
Defendants Hubbard, Rothchild, Hysen, Meyer, and Hartley
23
Despite Plaintiffs’ allegations that prison officials have known of the risk of Valley Fever
24
for over 50 years, the fact that medical journals have published articles does not show that the risk
25
was evident to Defendants in this action. Based on the allegations in the complaint, it was not
26
until 2004 that a memo was provided to officials within the prison system which mentioned that
27
the risk of disseminated disease was highest in certain individuals. (Id. at ¶ 60.) In June 2007,
28
the CCHCS issued recommendations to address the spread of Valley Fever in the prison system
19
1
and in November 2007 prison officials adopted their exclusion policy. (Id. at ¶¶ 80, 81.) While
2
Plaintiffs set forth numerous allegations regarding information that was available after this time
3
period, it is what Defendants knew at the time that they acted or that Plaintiffs were housed at
4
ASP or PVSP and contracted Valley Fever that is relevant in making the analysis of whether the
5
complaint states a claim. Further, Plaintiffs must set forth sufficient factual allegations to show
6
that each named defendant acted in a manner that would harm these individual plaintiffs.
7
While Plaintiffs allege that Defendants Hubbard, Rothchild, Hysen, Meyer, and Hartley
8
had knowledge of the risks of Valley Fever to specific classes of inmates, the complaint fails to
9
allege that they held an office during the time period at issue in this action. For instance,
10
Plaintiffs allege that Defendant Hubbard was the former director of CDCR’s Division of Adult
11
Operations and issued a memo in November 2007 that “continued to allow Plaintiffs and others
12
who were members of high-risk groups to be housed in hyper-endemic prisons.” (ECF No. 1 at ¶
13
22.)
14
However, the complaint does not allege that Defendant Hubbard was involved in the
15
adoption of the policy that failed to exclude those inmates at high risk of developing disseminated
16
disease; nor does the complaint specify when she held this position; if she continued to hold the
17
position as more information became available as to the extent of the risk to inmates in these high
18
risk categories; or if Defendant Hubbard was director when any of these inmates were housed at
19
the subject prisons.
20
continued to allow inmates to be housed at the prisons is insufficient to show that Defendant
21
Hubbard was liable for the policy that injured Plaintiffs in this action.
Plaintiffs’ allegation that Defendant Hubbard issued a memo which
22
Similarly, the complaint fails to allege any information from which the Court can infer
23
that Defendants Rothchild, Hysen, Meyer, or Hartley held the position stated in the complaint at
24
the time that Plaintiffs were subject to the violations alleged in the complaint. To the extent that
25
Plaintiffs attempt to assert that the policies continue to violate the Constitution, Plaintiffs in this
26
action are no longer at risk of contracting Valley Fever. Even if the policy has been continued by
27
a successor, Plaintiffs do not state a claim against current CDCR officials who were not involved
28
in the policy prior to the plaintiff being injured. Plaintiff may not state a claim against current
20
1
officials where their conduct did not cause or contribute to a completed constitutional violation
2
that occurred in the past. See George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (Only those
3
who contribute to a constitutional violation are liable. “A guard who stands and watches while
4
another guard beats a prisoner violates the Constitution; a guard who rejects an administrative
5
complaint about a completed act of misconduct does not.”)
6
Plaintiffs’ complaint fails to state a claim against Defendants Hubbard, Rothchild, Hysen,
7
Meyer, or Hartley; and the Court recommends that the motion to dismiss be granted as to these
8
defendants.
9
4.
Defendants Schwarzenegger, Yates, and Cate
10
While Defendants argue that the complaint fails to allege that any defendant personally
11
participated in any act or failure to act that harmed Plaintiffs, “[t]he law clearly allows actions
12
against supervisors under section 1983 as long as a sufficient causal connection is present and the
13
plaintiff was deprived under color of law of a federally secured right.” Starr, 652 F.3d at 1207
14
(quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1447 (9th Cir.1991)). The Court shall
15
address below whether Plaintiffs have set forth sufficient allegations to link Defendants
16
Schwarzenegger, Yates, and Cate to the violations alleged.
17
B.
Eight Amendment
18
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison
19
conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,
20
452 U.S. 337, 347 (1981). A prisoner’s claim does not rise to the level of an Eighth Amendment
21
violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized measure of
22
life’s necessities,’ ” and (2) “the prison official ‘acted with deliberate indifference in doing so.’ ”
23
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d
24
732, 744 (9th Cir. 2002) (citation omitted)).
25
1.
Conditions of Confinement
26
Plaintiffs allege that they have been subjected to cruel and unusual punishment by the
27
policies and procedures allowing them to be housed in a hyper-endemic region and they
28
subsequently contracted Valley Fever. The Eighth Amendment’s prohibition against cruel and
21
1
unusual punishment protects prisoners not only from inhumane methods of punishment but also
2
from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
3
2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S.
4
337, 347 (1981)) (quotation marks omitted). While conditions of confinement may be, and often
5
are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain.
6
Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus,
7
conditions which are devoid of legitimate penological purpose or contrary to evolving standards
8
of decency that mark the progress of a maturing society violate the Eighth Amendment. Morgan,
9
465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737
10
(2002); Rhodes, 452 U.S. at 346. In order to state a claim for violation of the Eighth Amendment,
11
the plaintiff must allege facts sufficient to support a claim that prison officials knew of and
12
disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S.
13
825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
14
15
The Court shall first address the substantial risk of harm prong of the deliberate
indifference analysis.
16
a.
Substantial Risk of Harm
17
Defendants argue that no court has held that exposure to Valley Fever, in and of itself,
18
presents a substantial risk to an inmate’s health. The Court agrees that merely being exposed to
19
an area, even a hyper-endemic area, by itself does not constitute an excessive risk of harm. See
20
Sullivan v. Kramer, No. 1:13-cv-00275-DLB-PC, 2014 WL 1664983, at *5 (E.D. Cal. April 23,
21
2014) (being confined in an area where Valley Fever spores exist is insufficient to state a claim
22
for deliberate indifference); Lua v. Smith, No. 1:14-cv-00019-LJO-MJS, 2014 WL 1308605, at
23
*2 (E.D. Cal. Mar. 31, 2014) (first prong of deliberate indifference claim satisfied where plaintiff
24
identifies a factor responsible for increasing the risk of contraction or severity of infection);
25
Willis v. Yates, No. 1:08-cv-00125-0WW-SMS PC, 2009 WL 3486674, at *3 (E.D. Cal. Oct. 23,
26
2009) (risk of contracting Valley Fever by being housed at PVSP and fact that inmate contracted
27
Valley Fever is insufficient to state a claim). As Plaintiffs’ allege in their complaint, most
28
individuals who contract Valley Fever get a mild form of the disease with moderate to mild flu22
1
like symptoms or no symptoms at all.
2
experience no symptoms and most of the remaining forty percent only have mild flu-like
3
symptoms. (Id. at ¶ 44, 45.) Therefore, to the extent that Plaintiffs attempt to state a claim based
4
on mere placement at a prison in an area that results in Valley Fever, the complaint fails to state a
5
claim.
(ECF No. 2 at ¶ 5.)
Sixty percent of individuals
6
However, the complaint contains sufficient facts to allege that African-Americans,
7
Filipinos and other Asians, Hispanics, and American Indians, as well as individuals with
8
compromised immune systems, were at a substantial risk of developing disseminated infection
9
which causes life threating pneumonia or blood-borne spread of the fungus to other parts of the
10
body and can be fatal.3 The Court finds that the complaint is sufficient to allege that individuals
11
within these categories were at a substantial risk of harm due to their increased risk of developing
12
disseminated infection.
13
Having found that Plaintiffs have sufficiently alleged that African-Americans, Filipinos
14
and other Asians, Hispanics, and American Indians, as well as individuals with compromised
15
immune systems were at a substantial risk of harm, Plaintiffs to this action must belong to one of
16
these groups which place them at high risk of developing disseminated disease to state a claim.
17
The Court addresses those plaintiffs that have not alleged facts to show they were at a substantial
18
risk of harm.
19
i.
Plaintiff Beagle
20
Plaintiff Beagle is a Caucasian male who alleges that prior to being transferred to ASP he
21
had “elevated liver enzymes suggesting a compromised liver, blood clots in his legs, lower back
22
pain, grout, and chronic pain from skin grafts.” (ECF No. 2 at ¶¶ 201-203.) Plaintiffs’ complaint
23
alleges that individuals with compromised immune systems are at a greater risk of developing
24
severe disseminated disease.
25
compromised immune system may be caused by any of several chronic diseases including
(ECF No. 2 at ¶ 88.)
As alleged in the complaint, “[a]
26
27
28
3
Although Plaintiffs allege that inmates over the age of fifty five are also at an increased risk of developing
disseminated disease (ECF No. 2 at ¶ 92), it was not until April 11, 2013, that there is any indication that CDCR
staff had any knowledge of a risk to inmates over 55 years old, (ECF No. 2 at ¶ 189).
23
1
diabetes, HIV, lung disease, organ transplant, or taking TNF inhibitors for arthritis.”
(Id.)
2
Plaintiff Beagle does not allege any facts which would include him within the category of
3
individuals with a compromised immune system. As Plaintiff Beagle is not within the high risk
4
categories placing him at a substantial risk of harm, he fails to state a claim and his claims should
5
be dismissed.
6
ii.
Plaintiff Burke
7
Plaintiff Burke is a Caucasian male and does not allege that prior to being housed at PVSP
8
he had any medical condition that would place him in a high risk category. For that reason,
9
Plaintiff Burke fails to state a cognizable claim and his claims should be dismissed.
10
iii.
Plaintiff Hollis
11
Plaintiff Hollis alleges that he is a Caucasian male and does not allege any facts to show
12
that he belongs to a high risk category. Further, Plaintiff Hollis alleges that he was healthy prior
13
to being placed at PVSP. Plaintiff Hollis has failed to state a claim. Further, the Court finds that
14
he is unable to allege any facts which would place him in a high risk category and for that reason;
15
Plaintiff Hollis should be dismissed from this action without leave to amend.
16
iv.
Plaintiff Koklich
17
Similarly, Plaintiff Koklich alleges that is a Caucasian male and was in good health prior
18
to arriving at PVSP. Plaintiff Koklich has failed to allege facts to demonstrate that he belongs to
19
a high risk category. Further, the Court finds that based on the allegations in the complaint,
20
Plaintiff Koklich would be unable to allege any facts to correct the deficiencies in his claim in
21
regards to the claims that are proceeding in this action.
22
To the extent that Plaintiff Koklich contends that construction around PVSP placed him at
23
a higher risk of contracting Valley Fever, the Court finds that this claim is improperly joined in
24
this action. Rule 20 of the Federal Rules of Civil Procedure provides that plaintiffs may be joined
25
in an action “if: they assert any right to relief jointly, severally, or in the alternative with respect
26
to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
27
any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P.
28
20(a)(1)(A) and (B).
24
1
In this action, Plaintiff Koklich’s claim to relief, that he was exposed to a substantial risk
2
of harm by construction around PVSP is not common to the allegations of the other plaintiffs in
3
this action. Plaintiff Koklich’s claim is not based upon the policy of housing high risk inmates in
4
the hyper-endemic area and does not arise out of the same transaction, occurrence or series of
5
transactions. Plaintiff Koklich’s claim is based upon discrete decisions by officials to build
6
around PVSP and these facts do not rise in the claims brought by the other plaintiffs in this action.
7
For these reasons, the Court recommends that Plaintiff Koklich be dismissed from this
8
9
action, without leave to amend.
b.
Deliberate Indifference
10
Plaintiffs have set forth numerous publications by the CDCR and related public entities
11
which were provided to Defendants Schwarzenegger, Yates and Cate in this action placing them
12
on notice that certain individuals were at a significant risk of contracting Valley Fever and having
13
it develop into the disseminated form of the disease by virtue of their race, national origin, or
14
because they had a compromised immune system. This is sufficient to show that these defendants
15
knew that African-Americans, Filipinos and other Asians, Hispanics, and American Indians, as
16
well as those who are immune-compromised or immune-suppressed were at a significantly
17
increased risk of contracting the disseminated form of Valley Fever.
18
Armed with such knowledge, Plaintiffs contend that Defendants Schwarzenegger, Yates
19
and Cate failed to adopt a policy of excluding these high risk inmates from being housed in the
20
hyper-endemic area or moving high risk inmates out of the hyper-endemic area. Defendants
21
argue that the complaint fails to allege that the defendants personally caused the injury to
22
Plaintiffs and cannot state a claim for deliberate indifference because the defendants were
23
unaware of the details of the plaintiffs’ incarceration, medical conditions or increased risk of
24
Valley Fever. However, “when a supervisory official advances or manages a policy that instructs
25
its adherents to violate constitutional rights, then the official specifically intends for such
26
violations to occur. Claims against such supervisory officials, therefore, do not fail on the state of
27
mind requirement, be it intent, knowledge, or deliberate indifference.” OSU Student Alliance v.
28
Ray, 699 F.3d 1053, 1076 (9th Cir. 2012).
25
1
i.
2
Specifically, Plaintiffs contend that Defendant Schwarzenegger was aware of the risk to
3
these inmates housed at PVSP as early as 2005 when a prisoner rights group sent him an
4
informational packet describing the threat posed to these high risk inmates by Valley Fever.
5
(ECF No. 2 at ¶ 101.) Yet, despite this knowledge, Plaintiffs allege that in 2007 Defendant
6
Schwarzenegger proposed that new dormitories be constructed at PVSP increasing the number of
7
prisoners that could be housed there by 600. (Id. at ¶ 102.) Plaintiffs state that Defendant
8
Schwarzenegger indicated he was not concerned about the incidence of Valley Fever and that
9
they would go ahead and build when questioned during a press conference. (Id. at ¶ 103.)
10
Plaintiffs also contend that in 2011, Defendant Schwarzenegger announced that housing prison
11
inmates at PVSP would continue unabated. (Id. at ¶ 83.)
Defendant Schwarzenegger
12
While Plaintiffs’ complaint demonstrates that Defendant Schwarzenegger was or should
13
have been aware of the threat to high risk inmates, the allegations in the complaint fail to show
14
that he had any personal involvement in the policies that allowed such high risk inmates to be
15
housed at PVSP or ASP.
16
subordinates’ actions”, however, there are no allegations in the complaint that Defendant
17
Schwarzenegger was aware of the specific inmates that were being housed at these prisons or was
18
responsible for promulgating the policies.
Plaintiffs’ contend that Defendant Schwarzenegger “condoned
19
Defendant Schwarzenegger is not liable for the policies of the CDCR where he did not
20
participate in or direct the violations, nor knew of the violations and failed to act to prevent them.
21
Taylor, 880 F.2d at 1045. To the extent that Plaintiffs attempt to state a claim based solely upon
22
the decision to house inmates in the endemic area, the amended complaint fails to state a claim.
23
As the Court previously discussed, building a prison in the hyper-endemic area does not create a
24
substantial risk of harm.
25
conferences do not show that Defendant Schwarzenegger was aware that high risk inmates were
26
were being housed at Corcoran, PVSP, or ASP and thereby exposed to a substantial risk of
27
serious harm. The fact that Defendant Schwarzenegger made comments showing that he was
28
aware of the risk of Valley Fever alone is not sufficient to state a claim that Defendant
Defendant Schwarzenegger’s alleged comments during press
26
1
Schwarzenegger was deliberately indifferent to the risk to Plaintiffs in this action.
2
The allegations in the complaint do not show that Defendant Schwarzenegger was aware
3
of any substantial risk of harm to inmates due to the decision to build next to PVSP, and as
4
discussed above, such claims are not properly joined in this action. Plaintiffs’ complaint fails to
5
state a claim against Defendant Schwarzenegger and the Court recommends that the motion to
6
dismiss Defendant Schwarzenegger be granted.
7
ii.
Defendants Cate and Yates
8
Plaintiffs allege that in 2007 the Fresno Grand Jury investigation informed Defendants
9
Cate, and Yates of the incidence of Valley Fever at PVSP and the increased risk to African-
10
Americans, Hispanics, and Filipinos and other Asians. (ECF No. 2 at ¶¶ 97-100.) Plaintiffs
11
contend that although Defendants were aware that housing these inmates in the hyper-endemic
12
prisons posed a greatly elevated risk of them contracting the disseminated disease, Defendant
13
Cate created and continued policies that allowed inmates to be transferred into the high risk area
14
and did not protect high risk prisoner groups; and Defendant Yates established and implemented a
15
policy that allowed them to be housed in the endemic area.
16
The allegations contained in the complaint are sufficient to state a claim against
17
Defendants Cate and Yates for deliberate indifference to conditions of confinement by allowing
18
these high risk categories of inmates to be housed at prisons in the endemic and hyper-endemic
19
area. The Court recommends that Defendants’ motion to dismiss Defendants Cate and Yates be
20
denied.4
21
iii.
Defendant Winslow
22
Plaintiffs contend that Defendant Winslow was the former Statewide Medical Director for
23
CDCR and authored a memo in June 2007 disclosing that CDCR was aware of the greatly
24
increased risk of infection in the hyper-endemic areas and that the risk was multiplied several
25
times over for certain ethnic groups.
(ECF No. 2 at ¶ 27.)
Defendant Winslow made
26
27
28
4
While Defendants argue that they have taken, and continue to take in good faith, efforts to protect inmates based
upon the evolving recommendations regarding Valley Fever, at the motion to dismiss stage the allegations in the
complaint are taken as true.
27
1
recommendations that were ignored in his policy recommendations issued five months later. (Id.)
2
While Plaintiffs allege that Defendant Winslow personally participated in CDCR’s
3
adoption of policies that allowed high risk inmates to continue to be transferred to these prisons,
4
there are no facts alleged in the amended complaint to support such a conclusory allegation.
5
Plaintiffs have not alleged any facts to show that Defendant Winslow was personally involved in
6
adopting or implementing the policies which are being challenged in this action.
7
Further, Plaintiffs contend that Dr. Winslow issued a memorandum in November 2007
8
that did not include recommend excluding all African-American, Hispanic, Filipino and other
9
Asian inmates. However, in June 2007 Defendant Winslow issued a memorandum making
10
recommendations to reduce the infection rate inside the prison. Deliberate indifference occurs
11
where the official fails to address a substantial risk of harm to the inmates. Simmons v. Navajo
12
County, Arizona, 609 F.3d 1011, 1018 (9th Cir. 2010). In this instance, based on the allegations
13
in Plaintiffs’ complaint, Defendant Winslow was not deliberately indifferent to the risk, but made
14
recommendations to reduce the incidence of infection rates at the prison. The Court recommends
15
that Defendants’ motion to dismiss Defendant Winslow be granted.
16
iv.
Defendant Igbinosa
17
Plaintiffs allege that Defendant Igbinosa was the medical director at PVSP during the time
18
period relevant to this complaint. (Id. at ¶ 32.) Plaintiffs contend that despite being aware of the
19
incident rate of the disease, he failed to establish a prison level policy of screening inmates to
20
enable them to be transferred away from the hyper-endemic prison. (Id.)
21
While Plaintiffs contend that Defendant Igbinosa failed to establish a screening policy to
22
identify high risk inmates, given the CDCR policy that existed at the time, instituting a policy to
23
screen inmates would not have resulted in Plaintiffs being transferred from PVSP. Plaintiffs’
24
complaint fails to allege any facts from which the Court may infer that Defendant Igbinosa was
25
responsible for the policy of housing high risk inmates at PVSP or had any authority, by virtue of
26
his position as medical director at the prison, to have inmates transferred to another prison due to
27
being at high risk of contracting disseminated disease.
28
Further, Plaintiffs’ conclusory statement that Defendant Igbinosa was aware of the
28
1
incidence rate of Valley Fever and medical risks and failed to take actions to address the epidemic
2
or reduce inmates expose to disease fails to show state a plausible claim that Defendant Igbinosa
3
failed to respond to a serious medical need.
4
Plaintiffs should not have been transferred to PVSP or should have been transferred from PVSP.
5
As discussed, the complaint fails to show that Defendant Igbinosa was responsible for transfer
6
decisions or the CDCR policy. Plaintiffs fail to include any allegations that Defendant Igbinosa
7
had the ability to protect Plaintiffs from expose to Valley Fever and failed to do so.
8
9
Plaintiffs’ complaint specifically alleges that
Plaintiffs fail to state a cognizable claim and the Court recommends that Defendants’
motion to dismiss Defendant Igbinosa be granted.
10
2.
Deliberate Indifference to Serious Medical Needs
11
Plaintiffs also contend that Defendants were deliberately indifferent to their serious
12
medical needs by transferring them to an area where they were exposed to Valley Fever. In the
13
context of deliberate indifference to medical needs, deliberate indifference is shown where the
14
official is aware of a serious medical need and fails to adequately respond. Simmons, 609 F.3d at
15
1018. Plaintiffs allegation that exposure to Valley Fever was deliberate indifference to a medical
16
condition fails to state a claim.
17
Deliberate indifference may be manifested “when prison officials deny, delay or
18
intentionally interfere with medical treatment,” or in the manner “in which prison physicians
19
provide medical care.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
20
other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
21
Plaintiffs allege that due to their risk factors, by exposing them to Valley Fever a serious medical
22
condition could and did occur. At the time the inmates were transferred to the subject prison no
23
serious medical condition existed that required response.
24
In the opposition to the motion, Plaintiffs argue that they did not receive appropriate care
25
for their Valley Fever, however these allegations are not set forth in the complaint. While some
26
plaintiffs do allege a period of time passed between their symptoms beginning and being formally
27
diagnosed and treated, Plaintiffs have not linked this delay to any defendant named in this action.
28
Nor have Plaintiffs linked any named defendant to any complications that they suffered due to
29
1
any alleged treatment received while incarcerated. As alleged in the complaint, Plaintiffs’ claim
2
is deliberate indifference to conditions of confinement.
3
indifference to serious medical needs claim and the motion to dismiss this claim should be
4
granted.
Plaintiffs fail to state a deliberate
5
C.
Ripeness
6
Defendants contend that since Plaintiffs Belardes, Carter, Clark, Felder, Garza, Hollis,
7
Infinity, Koklich, Montgomery, Romero, Thomas, Tillis, Villanueva, Westbrook and Woods are
8
still in custody their claims for the cost of on-going medical care are not ripe. Plaintiffs counter
9
that their claims are ripe as they have contracted Valley Fever and therefore have demonstrated
10
present injury and pleading general damages, including future medical costs, is legally proper at
11
this phase of the litigation.
12
For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield
13
v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This
14
requires the plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete
15
and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must
16
be fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable
17
judicial decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct.
18
1142, 1149 (2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted). “The
19
constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III
20
standing. Whether framed as an issue of standing or ripeness, the inquiry is largely the same:
21
whether the issues presented are ‘definite and concrete, not hypothetical or abstract.’ ” Wolfson
22
v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (internal citations omitted).
23
Defendants rely on Hassel v. Sisto, No. 2:10-cv-0191-GEB-CMK, 2011 WL 2946370
24
(E.D. Cal. July 21, 2011), to argue that certain plaintiffs in this action cannot pursue claims for
25
future medical care because they are still in the custody of CDCR. In Hassel the inmates alleged
26
they had contracted tuberculosis (“TB”) as a result of prison officials deliberate indifference and
27
were seeking future medical damages. Id. at *1. However, none of the plaintiffs had active TB.
28
Id. The defendants filed a motion to dismiss arguing that there was no case or controversy ripe
30
1
for adjudication as none of plaintiffs had active TB and any future damage was too speculative.
2
Id. at *2-3. The court found that any future damage was too speculative to bring to court. The
3
reasons given by the court were that the costs of future healthcare would not be compensable until
4
after the plaintiffs were released from prison; they would have to develop TB and show that it
5
was attributable to a relapse of their treatment in prison; and there was no imminent danger of
6
them developing active TB since they had been effectively treated in prison. Id. at *3.
7
While Hassel could be relevant on a motion for summary judgment as to those Plaintiffs
8
who do not allege they are currently suffering symptoms of Valley Fever or have not been
9
diagnosed with Valley Fever, the complaint alleges a cause of action due to the risk of contracting
10
disseminated disease. While not all Plaintiffs have alleged they have disseminated disease and
11
some are suffering no symptoms, at this stage of the litigation, the Court cannot find that
12
Plaintiffs’ risk of their Valley Fever progressing to disseminated disease is too speculative to
13
allow to proceed. Therefore, at the pleading stage, Plaintiffs have alleged an actual injury that
14
can be addressed by a favorable judicial decision. While Defendants contend that the date that
15
Plaintiffs will be released from custody is speculative, there are no facts before the court to
16
determine that such a date could not be determined should this action proceed to trial.
17
Defendants’ motion to dismiss the claims for future medical damages on the grounds of ripeness
18
should be denied.
19
D.
20
In the complaint, Plaintiffs contend that Defendants waived all defenses based on
21
presentation of claims to the Victims Compensation Board due to failing to comply with the
22
statutory notice requirements under California Government Code section 53501. Defendants
23
move to dismiss the state law claims on the ground that Plaintiffs did not comply with the
24
Government Claims Act and Plaintiffs are not excused from presenting their claim prior to
25
bringing suit.
State Tort Claim
The California Tort Claims Act5 requires that a tort claim against a public entity or its
26
27
5
28
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
31
1
employees be presented to the California Victim Compensation and Government Claims Board,
2
formerly known as the State Board of Control, no more than six months after the cause of action
3
accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a written
4
claim, and action on or rejection of the claim are conditions precedent to suit. State v. Superior
5
Court of Kings County (Bodde), 90 P.3d 116, 119 (Cal. 2004); Shirk v. Vista Unified School
6
District, 42 Cal.4th 201, 209 (2007). To state a tort claim against a public employee, a plaintiff
7
must allege compliance with the California Tort Claims Act. Cal. Gov’t Code § 950.6; Bodde, 90
8
P.3d at 123.
9
requirement subjects a complaint to general demurrer for failure to state a cause of action.”
10
“[F]ailure to allege facts demonstrating or excusing compliance with the
Bodde, 90 P.3d at 120.
11
Plaintiffs contend that Defendants waived the presentation requirement by not complying
12
with California Government Code section 53501 which requires that each public agency must file
13
with the Secretary of State a form which includes:
14
17
1. The full, legal name of the public agency.
2. The official mailing address of the governing body of the public agency.
3. The name and residence or business address of each member of the governing
body of the public agency.
4. The name, title, and residence or business address of the chairman, president, or
other presiding officer, and clerk or secretary of the governing body of such
public agency.
18
Cal. Gov. Code § 53051(a). Section 946.4, as relevant here, provides that the failure to present a
19
claim does not bar a suit if “[a] statement or amended statement pertaining to the public agency is
20
on file, or is placed on file . . . but the information contained therein is so inaccurate or
21
incomplete that it does not substantially conform to the requirements of Section 53051.” A public
22
agency is described as “a district, public authority, public agency, and any other political
23
subdivision or public corporation in the state, but does not include the state or a county, city and
24
county, or city.” Cal. Gov. Code § 53050.
15
16
25
“[S]ection 53051 was enacted ‘to provide a means for identifying public agencies and the
26
names and addresses of designated officers needed to enable or assist a person to comply with
27
28
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.
32
1
any applicable claims procedure[.]’ ” Wilson v. San Francisco Redevelopment Agency, 19
2
Cal.3d 555, 561 (1977). An “agency’s failure to comply with section 53051 entitles the claimant
3
to ignore the claim-filing requirement entirely.” Id.
4
In their opposition, Plaintiffs contend that, at the pleading stage, the Court should not
5
decide the issue of substantial compliance. However, the Court disagrees for several reasons.
6
Initially, Plaintiffs argue that the failure to comply with the California Tort Claims Act is an
7
affirmative defense. However, to state a claim a plaintiff must allege compliance with the Act
8
and it is therefore an element of the state law cause of action. Young v. City of Visalia, 687
9
F.Supp.2d 1141, 1152 (E.D. Cal. 2009). Therefore, failure to comply with the California Tort
10
Claim Act is fatal to Plaintiffs’ cause of action. Hacienda La Puente Unified School Dist. of Los
11
Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992). Also, the issue of whether Defendants
12
substantially conform with the requirements of the statute is not a factual issue, but is a legal
13
issue.
14
requirements, if feasible, should be decided before reaching the merits of a prisoner’s claim.
15
Albino v. Baca, 767 F.3d 1162, 1169 (E.D. Cal. 2014).
Finally, as the Ninth Circuit recently reiterated, issues dealing with exhaustion
16
The California Tort Claim Act defines the State as “the State and any office, officer,
17
department, division, bureau, board, commission or agency of the State claims against which are
18
paid by warrants drawn by the Controller.” Cal. Gov. Code §§ 900.6, 940.6. If the CDCR claims
19
are paid by warrants drawn by the Controller, it would be considered the State for the purposes of
20
the Tort Claims Act and is not required to comply with section 53050. See Galli v. State of
21
California, 98 Cal.App.3d 662, 675 (1979).
22
Further, the Court takes judicial notice of the California Roster of State Agencies,
23
Departments, Boards, and Commissions provided by Defendants in their request for judicial
24
notice.6 (ECF No. 38-1 at 2.) The information provided in the Roster for the CDCR includes the
25
26
27
28
6
As a general rule, the court may not consider any material outside the pleadings in ruling on a Rule 12(b)(6) motion.
United States v. Corinthian Colleges, 655 F.3d 984, 998 (9th Cir. 2011). However, the incorporation by reference
doctrine allows material attached to the complaint to be considered, as well as “unattached evidence on which the
complaint ‘necessarily relies’ if : (1) the complaint refers to the document; (2) the document is central to plaintiff’s
claim; and (3) no party questions the authenticity of the document.” Corinthian Colleges, 655 F3d at 999.
33
1
address, phone number and website address for the CDCR. (Id.) The website address provided is
2
for the CDCR website which provides the identity of the Secretary of the CDCR and information
3
on each of the divisions and boards within the CDCR.7
4
An unpublished California case, Kahaunaele v. Tri-City Medical Center, No. D053214,
5
2009 WL 2004428, at *6 (July 10, 2009), recognizes the sparseness of the law addressing what
6
defines substantial conformity with the requirements of section 53051. Kahaunaele applied the
7
law of substantial compliance to determine the issue. Id. at *7.
8
“Substantial compliance . . . means actual compliance in respect to the substance essential
9
to every reasonable objective of the statute.” Costa v. Superior Court, 34 Cal.4th 986, 1017 n.24
10
(2006) (citations omitted). This means that each objective of the statute must be achieved in
11
order to satisfy the substantial compliance standard, but it does not require actual compliance with
12
every specific statutory requirement. Id. In determining whether there has been substantial
13
compliance, “t[]he paramount consideration is the objective of the statute.” North Pacifica LLC
14
v. California Costal Com’n, 166 Cal.App.4th 1416, 1431 (2008).
15
The purpose of section 53051 is “to provide a means for identifying public agencies and
16
the names and addresses of designated officers needed to enable or assist a person to comply with
17
any applicable claims procedure.” Tubbs v. Southern California Rapid Transit Dist., 67 Cal.2d
18
671, 676 (1967). The information provided on the Roster is sufficient to enable or assist an
19
individual to comply with any applicable claims procedure. While Plaintiffs argue that the
20
information is incomplete as found in Banfield v. Sierra View Hospital, 124 Cal.App.3d 444
21
(1981), in Banfield the information on the roster was incorrect and therefore not substantially
22
23
24
25
26
27
7
Plaintiffs object to the request that the Court take judicial notice of the CDCR website citing Knievel v. ESPN, 393
F.3d 1068, 1076 (9th Cir. 2005). While Plaintiffs cite to footnote 13, there is no footnote 13 in the opinion.
However, at the page cited the court did take into account the web pages attached to the motion to dismiss under the
“incorporation by reference” doctrine. Id. Further, courts may take judicial notice of “a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). Courts may take judicial notice of information displayed on
government websites where neither party disputes the accuracy of the information contained therein. Daniels –Hall
v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). The Court overrules Plaintiffs’ objections to the
Court taking judicial notice of the CDCR website.
28
34
1
compliant because the hospitals had failed to file updated information with the Roster of Public
2
Agencies. Id. at 456. Here, there is no argument that the information provided on the Roster was
3
incorrect.
4
Plaintiffs’ contend that the failure to name the secretary and each member of the
5
governing board did not substantially comply with section 53051. However, the information
6
provided on the roster includes the website for the CDCR which provides the current information
7
regarding the contact information for each department or division of the CDCR. Plaintiffs are
8
excused from presenting a claim only where the information provided by the agency “is so
9
inaccurate or incomplete that it does not substantially conform to the requirements of Section
Cal. Gov. Code § 946.4.
The Court finds that the information on the Roster
10
53051.”
11
substantially complies with the purpose of section 53051 as it provides a means to identify the
12
officers so that Plaintiffs could comply with the claims procedure. See Media Services, Inc. v.
13
Mehas, 50 Fed.Appx. 850, 1 (9th Cir. 2002) (unpublished) (finding alleged error of failure to list
14
secretary or clerk insubstantial in complying with section 53051).
15
Defendants’ motion to dismiss Plaintiffs state law claims for failure to file a claim in
16
compliance with the California Tort Claim Act should be granted as to all Plaintiffs based the
17
allegation that they are excused from complying with the California Tort Claims Act.
18
1.
Plaintiff Boyd
19
Plaintiff Boyd is the only plaintiff who alleges that he presented a claim to the Victim
20
Compensation Board. Defendants request that the Court take judicial notice of the claim form
21
and that this action was filed prior to the Board rejecting his claim.8
22
The California Tort Claims Act provides that action on or rejection of the claim are
23
conditions precedent to suit. Bodde, 90 P.3d at 119; Shirk, 42 Cal.4th at 209. Plaintiff Boyd
24
submitted a claim form on October 21, 2013 which was rejected because it failed to comply with
25
the requirements of California Government Code section 905.2(c). (Government Claim Form,
26
ECF No. 26-2 at Exhibit K.) Plaintiff Boyd submitted a claim on November 20, 2013, and
27
8
28
The Court will take judicial notice of the claim forms referred to in the complaint based on the incorporation by
reference doctrine.
35
1
January 24, 2014. (Id. at 15-20.) Plaintiff Boyd’s claim was rejected at the March 20, 2014
2
meeting of the Victim Compensation Board. (ECF No. 26-2 at 13.) This action was filed on
3
February 5, 2014, approximately two months prior to the Board acting on his claim, therefore,
4
Plaintiff Boyd did not comply with the requirements of the California Tort Claim Act and he fails
5
to state a state law claim in this action. The Court recommends that Plaintiff Boyd’s state law
6
claims be dismissed for failure to state a claim. Wickland Oil Terminals v. Asarco, Inc., 654
7
F.Supp. 955, 961 (N.D. Cal. 1987).
8
E.
Misjoinder of Parties
9
Defendants move to sever the claims against the individual defendants contending that the
10
parties are misjoined in this action. Plaintiffs counter that they are alleging that Defendants’
11
policies and systemic pattern of inaction exposed them to a greater risk of contracting Valley
12
Fever and they share common questions of law and fact making joinder of the parties and claims
13
proper.
14
Rule 20 of the Federal Rules of Civil Procedure provides for joinder of parties in a single
15
action where any right to relief is asserted by them or against them “jointly, severally, or in the
16
alternative with respect to or arising out of the same transaction, occurrence, or series of
17
transactions or occurrences; and any question of law or fact common to all plaintiffs [or
18
defendants] will arise in the action. Fed. R. Civ. P. 20(a)
19
The complaint in this action arises out of the policy of housing high risk inmates in the
20
endemic area which was allegedly promulgated and implemented by the defendants in this action.
21
While the defendants argue that the injuries do not arise out of the same transaction or
22
occurrence, other than Plaintiff Koklich as discussed above, the Court disagrees. Plaintiffs are all
23
alleging to have been harmed by the same policy. Similarly the claims by all these Plaintiffs will
24
share common questions of law and fact. Joinder is appropriate under Rule 20. While the Court
25
agrees with Defendants that the issue of joinder for all purposes may need to be readdressed at a
26
later stage of the proceedings, Defendants’ motion to dismiss for improper joinder should be
27
granted for Plaintiff Koklich and denied as to all other parties to this action.
28
36
1
F.
2
Finally, Defendants move to dismiss the complaint claiming it violates Rule 8 of the
3
Federal Rule of Civil Procedure. Plaintiffs oppose the motion on the ground that the complaint is
4
appropriately detailed and is organized to allow Defendants to understand the Constitutional
5
violations alleged.
Rule 8
6
While Defendants cite cases in which a complaint has been dismissed for being “prolix”
7
with evidentiary detail, the Court does not find Plaintiffs’ complaint to violate Rule 8. The Ninth
8
Circuit has held that a complaint may be dismissed where the allegations are such that the court
9
has difficulty determining the circumstances that gave rise to the cause of action. Gottschalk v.
10
City and County of San Francisco, 964 F.Supp.2d 1147, 1154 (N.D. Cal. 2013) “Rule 8(a) has
11
‘been held to be violated by a pleading that was needlessly long, or a complaint that was highly
12
repetitious, or confused, or consisted of incomprehensible rambling.’ ” Cafasso, U.S. ex rel. v.
13
General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (quoting 5 Charles A.
14
Wright & Arthur R. Miller, Federal Practice & Procedure § 1217 (3d ed.2010)).
15
While the complaint is seventy-nine pages long, it asserts claims for twenty-two plaintiffs
16
against thirteen defendants.
Although the complaint does contain some unnecessary and
17
repetitive detail, it is not so repetitious or confusing as to make it incomprehensible.
18
complaint is logically organized, divided into sections for parties, factual allegations, Plaintiffs
19
theories of liability, and causes of action. The complaint here clearly delineates the claims being
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brought and the defendants against whom the claims are being made. The complaint is this action
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is distinguishable from those cases in which courts have dismissed the complaint for violating
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Rule 8. See Cafasso, 637 F.3d at 1059 (affirming denial of motion to amend where complaint
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contained 733 pages); Gottschalk, 964 F.Supp.2d at 1155 (dismissing complaint that was
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rambling, confusing, and unintelligible).
The
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Further, while Defendants contend that Plaintiffs use terms such as high-risk or at-risk
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without defining the terms, the complaint makes it clear that certain racial groups, such as
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African-Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as those
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who are immune compromised are those at high risk for developing disseminated disease.
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Although Defendants contend that Plaintiffs fail to identity if they fall within these categories,
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each Plaintiff alleges which group he belongs to. Plaintiffs Boyd, Carter, Clark, Felder, Johnson,
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Montgomery, Romero, Thomas, Tillis, Westbrook and Woods identify themselves as African-
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American.
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Hispanic. Plaintiff Belardes identifies himself as American Indian and Plaintiff Plain5tiff Imuta
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identifies himself as Japanese, which would be other Asian. Additionally, Plaintiffs Clark and
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Dibble allege they suffered from respiratory problems that placed them at high risk of contracting
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Valley Fever prior to being transferred into PVSP.
Plaintiffs Bustamonte, Garza, Romero, and Villanueva identify themselves as
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Defendants also argue that Plaintiffs have failed to define certain terms such as hyper-
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endemic regions or prisons. However, the complaint identifies the prisons in the endemic and
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hyper-endemic regions as ASP, California Correctional Institution, California State Prison-
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Corcoran, Wasco State Prison, North Kern State Prison, PVSP, California Substance Abuse
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Treatment Facility and State Prison at Corcoran, and Kern Valley State Prison. (ECF No. 2 at ¶
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54.)
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The Court recommends that Defendants’ motion to dismiss the complaint for violating
Rule 8 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:
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1.
Defendants Winslow and Igbinosa’s motion to dismiss be GRANTED;
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2.
Defendants Beard, Brazelton, Brown, Cate, Hartley, Hubbard, Rothchild,
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Schwarzenegger, Meyer, and Yates motion to dismiss be DENIED IN PART AND
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GRANTED IN PART as follows:
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a.
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The motion to dismiss Defendants Brown, Schwarzenegger, Beard, Brazelton,
Hubbard, Rothchild, Hysen, Meyer, and Hartley be GRANTED;
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b.
The motion to dismiss Defendants Cate and Yates be DENIED;
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c.
Defendants’ motion to dismiss the claim of deliberate indifference to conditions of
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confinement in violation of the Eighth Amendment be DENIED;
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d.
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Defendants’ motion to dismiss the claim of deliberate indifference to serious
medical needs in violation of the Eighth Amendment be GRANTED;
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e.
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Defendants’ motion to dismiss the state law claims for failure to allege compliance
with the Tort Claim Act be GRANTED;
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f.
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Defendants’ motion to dismiss Plaintiffs’ complaint on all other grounds be
DENIED;
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g.
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Plaintiffs Beagle and Burke’s claims be dismissed with leave to amend for failure
to state a claim; and
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h.
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Plaintiffs Hollis and Koklich be dismissed, without leave to amend, for failure to
state a claim; and
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3.
Plaintiffs should be granted an opportunity to file an amended complaint to cure
the deficiencies identified in this findings and recommendations.9
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These findings and recommendations are submitted to the district judge assigned to this
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action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen
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(14) days of service of this recommendation, any party may file written objections to these
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findings and recommendations with the Court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
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district judge will review the magistrate judge’s findings and recommendations pursuant to 28
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U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified
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//
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//
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//
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Plaintiffs are not being granted an opportunity to file an amended complaint at this time. Once the district judge
issues an order on the findings and recommendations, Plaintiffs shall be provided with the date by which to file an
amended complaint.
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time may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
June 24, 2014
UNITED STATES MAGISTRATE JUDGE
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