Jimenez v. Department of Corrections

Filing 45

REPORT AND RECOMMENDATION re 24 MOTION to Dismiss for Failure to State a Eighth Amendment Claim filed by E. Ravelo, Dr. Silva. Court recommends that the motion to dismiss be granted as to claims and all defendants. Court also recommends that P laintiff Jimenez be given 30 days from the District Judge's ruling on this matter to file a second amended complaint on the sole issue of denied medical care. Upon being served this Report, he parties have 14 days to file objections. Upon being served with any objections, the party has 14 days to file any response. Signed by Magistrate Judge Andrew G. Schopler on 7/14/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Adam Jimenez, Case No.: 15-cv-2493-BAS-AGS 12 Plaintiff, 13 v. 14 Department of Corrections, et al., 15 REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS (ECF No. 24) Defendants. 16 17 Plaintiff sued prison officials for transferring him to an area with an increased Valley 18 Fever risk, notwithstanding his greater susceptibility to the disease. Those officials now 19 assert qualified immunity, which shields them from suit unless they violated a “clearly 20 established” constitutional right. In the nine years since this prison transfer occurred, a split 21 has developed among the district courts in our Circuit as to whether these facts might give 22 rise to a constitutional claim, with many finding that it does not. “If judges thus disagree 23 on a constitutional question, it is unfair to subject [officials] to money damages for picking 24 the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). 25 One day higher-risk prisoners may have a clearly established right to be free from a 26 heightened environmental chance of disease. But that day has not yet come. It certainly 27 had not nine years ago. The officials thus have qualified immunity. 28 1 15-cv-2493-BAS-AGS 1 BACKGROUND 2 Plaintiff Adam Jimenez asserts that he has a high risk of contracting Valley Fever 3 because he suffers from hepatitis C, breathing difficulties, kidney failure, and chest and 4 back pain. (ECF No. 12, at 3.) In November 2008, Jimenez learned he was being transferred 5 to Kern Valley State Prison, which is in an area where Valley Fever is more prevalent. (Id. 6 at 3-4.) He protested on the ground that, given his existing ailments, “the Desert would 7 [adversely] affect my health.” (Id. at 3.) But prison officials nevertheless transferred him 8 that same month. He eventually contracted Valley Fever, which was diagnosed in 2012. 9 (Id. at 4-5.) 10 Jimenez sued various officials at his original facility, R.J. Donovan Prison, for 11 violating his civil rights. Two of those defendants—E. Ravelo and Dr. Silva—move to 12 dismiss based on qualified immunity and failure to state a claim. 13 14 DISCUSSION A. Qualified Immunity 15 The qualified immunity doctrine immunizes government officials from civil liability 16 so long as “their conduct does not violate clearly established statutory or constitutional 17 rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 18 223, 231 (2009) (citation omitted). To pierce the qualified-immunity shield, the court must 19 find: (1) the facts alleged or shown “make out a violation of a constitutional right”; and 20 (2) that right was “‘clearly established’ at the time of defendant’s alleged misconduct.” Id. 21 (citations omitted). “[P]laintiff bears the burden of proof that the right allegedly violated 22 was clearly established.” Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) 23 (citation and bracketing omitted). Courts may “exercise their sound discretion in deciding 24 which of the two prongs of the qualified immunity analysis should be addressed first[.]” 25 Pearson, 555 U.S. at 236. 26 It is unclear whether transferring an immunocompromised inmate to an area with a 27 higher incidence of disease violates any constitutional right. Inmates certainly have a right 28 to be free from concentrated exposure to serious diseases, as might occur if prison officials 2 15-cv-2493-BAS-AGS 1 knowingly forced someone into the same cell as an infected person. See Hutto v. Finney, 2 437 U.S. 678, 682 (1978) (holding that Eighth Amendment prohibited forcing prisoners in 3 “punitive isolation” to share mattresses with inmates suffering “from infectious diseases 4 such as hepatitis and venereal disease”) (citation omitted); cf. Helling v. McKinney, 509 5 U.S. 25, 27, 33, 35 (1993) (holding that Eighth Amendment barred subjecting inmate to 6 dangerous amounts of second-hand smoke by placing him in a cell with “another inmate 7 who smoked five packs of cigarettes a day,” and analogizing this to “exposure of inmates 8 to a serious, communicable disease”). But it is less obvious that prisoners have a right to 9 be free from more generalized disease exposure, such as by housing vulnerable inmates in 10 a geographical area with a higher incidence of a particular illness. 11 Many federal courts have struggled to identify such a right in Valley Fever cases 12 like this one. In fact, they have not even been able to agree on how broadly or narrowly to 13 define the right purportedly violated. See, e.g., Williams v. Biter, No. 1:14-cv-02076-DAD- 14 EPG (PC), 2017 WL 431353, at *10-12 (E.D. Cal. Jan. 31, 2017) (reviewing Valley Fever 15 cases and arguing that most courts have defined the right at issue with an improper degree 16 of specificity). 17 Even assuming such a right exists, prison officials still have qualified immunity if 18 that right was not clearly established. While the “weight of authority is that an inmate 19 cannot state a claim for violation of the Eighth Amendment on confinement in a location 20 where Valley Fever is present,” there is some disagreement about whether a prisoner who 21 is particularly susceptible to Valley Fever might state such a claim. Smith v. 22 Schwarzenegger, No. 1:14-cv-00060-LJO-SAB, 2015 WL 2414743, at *20-21 (E.D. Cal. 23 May 20, 2015) (citation omitted) (collecting cases). In the nine years since Jimenez’s 24 transfer to a Valley Fever-endemic area, many courts have found no such clearly 25 established right, see id., including as recently as last month. See Duran v. Lewis, No. 26 1:16-cv-00468-AWI-SAB (PC), 2017 WL 2797743, at *1 (E.D. Cal. June 27, 2017) 27 (“Plaintiff cannot state a claim upon which relief may be granted based solely on the mere 28 3 15-cv-2493-BAS-AGS 1 exposure to Valley Fever spores,” even if “he was at a greater risk of contracting Valley 2 Fever due to []his race.”). 3 This Court will not hold prison officials acting in 2008 to a higher standard of 4 constitutional clairvoyance than the many federal judges who—even today—do not discern 5 a clearly established constitutional right in similar Valley Fever cases. After all, official 6 actions only violate clearly established law “when, at the time of the challenged conduct, 7 the contours of a right are sufficiently clear that every reasonable official would have 8 understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 9 741 (2011) (citation and internal punctuation omitted). Caselaw need not have addressed 10 the precise factual scenario before, “but existing precedent must have placed the statutory 11 or constitutional question beyond debate.” Id. (citations omitted). While the Valley Fever 12 debate rages on, defendants have qualified immunity. 13 B. Failure to State a Claim 14 Even if he had a constitutional right to avoid placement in an area where Valley 15 Fever is more common due to his greater vulnerability to the disease, Jimenez fails to state 16 a claim that either defendant violated that right. He alleges that Ravelo was responsible for 17 updating and reviewing his R.J. Donovan Prison casefile and that Dr. Silva was his primary 18 care provider there, but never claims these defendants were responsible for or knew about 19 his transfer to Kern Valley State Prison, where he contracted Valley Fever. (ECF No. 12, 20 at 2-3.) The Supreme Court has held that “a prison official cannot be found liable under 21 the Eighth Amendment for denying an inmate humane conditions of confinement unless 22 the official knows of and disregards an excessive risk to inmate health and safety[.]” 23 Farmer v. Brennan, 511 U.S. 825, 837 (1994). Because there is simply no allegation that 24 these defendants knew of or were involved in the prison transfer process—let alone that 25 they knew the new prison posed a higher disease risk—Jimenez has failed to state a claim. 26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a 27 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 28 that is plausible on its face.’”) (citation omitted). 4 15-cv-2493-BAS-AGS 1 C. Dismissal as to All Defendants 2 The same reasoning applies equally to dismissing the case against the remaining 3 codefendants. All of them would likewise have qualified immunity. And the first amended 4 complaint fails to specify anyone who knew of or was responsible for Jimenez’s transfer, 5 except for possibly defendant Tonya Rothchild.1 6 D. Injunctive Relief 7 Finally, Jimenez seeks an injunction barring the defendants from engaging in 8 “retaliatory actions” and requiring that “proper medication be administered” to him. (ECF 9 No. 12, at 7.) Since the defendants all work at R.J. Donovan Prison—an institution Jimenez 10 left nine years ago—his claim for injunctive relief is moot. See Incumaa v. Ozmint, 507 11 F.3d 281, 286-87 (4th Cir. 2007) (holding that “the transfer of an inmate from a unit or 12 location where he is subject to the challenged policy, practice, or condition, to a different 13 unit or location where he is no longer subject to the challenged policy, practice, or condition 14 moots his claims for injunctive and declaratory relief”); cf. Jones v. Williams, 791 F.3d 15 1023, 1031 (9th Cir. 2015) (finding injunction claim moot once inmate was released from 16 prison and citing Incumaa with approval). 17 E. Opportunity to Amend 18 A self-represented prisoner plaintiff is entitled to an “opportunity to amend the 19 complaint to overcome [any] deficiency unless it clearly appears from the complaint that 20 the deficiency cannot be overcome by amendment.” James v. Giles, 221 F.3d 1074, 1077 21 (9th Cir. 2000) (citations omitted). In light of this Court’s qualified immunity analysis, 22 amendment would be futile as to his prison-transfer claims. But Jimenez also alleges that 23 more recently he was “denied Valley [F]ever meds” by various doctors who are not named 24 25 Jimenez alleges that Rothchild was “responsible for setting policies to assign or prevent assignment of inmates to prisons and making ministerial decisions to assign each individual inmate to a specific prison.” (ECF No. 12, at 2.) Yet he still fails to state a claim as to her because he never alleges that Rothchild had any reason to know that Jimenez’s prison transfer placed him at greater risk of contracting Valley Fever. 1 26 27 28 5 15-cv-2493-BAS-AGS 1 defendants. (ECF No. 12, at 5.) While this allegation does not state a claim against any 2 current defendant, and the denial of medication alone does not necessarily demonstrate 3 unconstitutional “deliberate indifference,” Jimenez should be allowed to amend his 4 complaint one last time, as to this sole claim. But this amendment would create a venue 5 problem, as the alleged denial of medical care occurred at his current prison in Los Angeles 6 in the Central District of California. So, if Jimenez chooses to amend his complaint on this 7 sole ground, the case should be transferred to that district. 8 CONCLUSION 9 Thus, this Court recommends that the motion to dismiss be GRANTED as to all 10 claims and all defendants. The Court also recommends that Jimenez be given 30 days from 11 the District Judge’s ruling on this matter to file a second amended complaint on the sole 12 issue of denied medical care. Jimenez should name any defendants involved in the alleged 13 denial of medical care and set forth any facts that show those defendants acted with 14 deliberate indifference to a serious medical need. If Jimenez does so, this Court then 15 recommends the case be transferred to the Central District of California. 16 Upon being served with a copy of this report, the parties have 14 days to file any 17 objections. Upon being served with any objections, the party receiving such objections has 18 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). 19 Dated: July 14, 2017 20 21 22 23 24 25 26 27 28 6 15-cv-2493-BAS-AGS

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