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David Hassel, et al. v. D.K. Sisto

July 21, 2011

DAVID HASSEL, ET AL. PLAINTIFF,
v.
D.K. SISTO, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs are state prisoners proceeding through counsel with an action under 42 U.S.C. § 1983. They allege that they were exposed to and contracted tuberculosis while they were incarcerated at California State Prison-Solano (CSP-Solano). The court has ordered service on D.K. Sisto, the warden at CSP-Solano, and Alvaro Traquina, the chief medical officer (CMO) there.

This case came before the court on defendants' motion to dismiss the original complaint, heard on November 17, 2010. The magistrate judge then assigned to the case granted the motion with leave to amend. See Docket No. 25. Plaintiffs filed an amended complaint on December 1, 2010, and defendants again moved to dismiss it. That motion came for hearing on April 12, 2011.

I. Allegations of the first amended complaint

Plaintiffs allege they contracted TB as a result of defendants' deliberate indifference to the fact that other inmates at CSP-Solano were active, contagious carriers of TB. However, none of the plaintiffs have active TB. Rather, they all state in the amended complaint that they have latent TB, which is not contagious. First Am. Compl. ¶ 14. The amended complaint explains that latent TB "occurs when the infected individual's immune system is strong enough so that it prevents the more aggressive active form." Id. at ¶ 6. Still, the possibility that the mycobacteria could become active through subsequent exposure to TB or weakening of the immune system "require[s] treatment with anti-tuberculosis medications similar to the treatment of the active form." Id. Infected individuals require medical monitoring for the rest of their lives. Id.

The amended complaint names four inmates (none of them plaintiffs in this action) who had active TB while at CSP-Solano: (1) inmate Nguyen, who was discovered as a carrier and removed from the general population in April 2004; (2) inmate Dennison, who allegedly contracted TB from Nguyen and was identified as an active TB carrier in 2004 but remained in the general population at least through October 2007, despite showing signs of the infection through a persistent cough; (3) inmate Singletary, who tested positive for active TB in July 2008, some six months after plaintiffs tested positive for latent TB; and (4) an inmate called "Shorty," who was identified with active TB in May 2009 but was known as a TB-positive inmate as early as April 2004. Id. at ¶¶ 31-33, 40, 44-45.

The complaint alleges that since 1992, the California Department of Corrections and Rehabilitation (CDCR) has had procedures and protocols in place to control the spread of TB. The procedures include isolation of active carriers and screening of inmates in places where the bacteria could have spread. See First Am. Compl. ¶ 11. According to the amended complaint, CDCR policy places an institution's warden and CMO on the team responsible for managing TB infection once an "index case" is identified at a particular institution. Id.

Plaintiffs further allege that in June 2004, CSP-Solano enacted an institutional operations plan (IOP) for mandatory TB testing and processing. Id. at ¶ 12. According to the complaint, the IOP "requires annual review by Associate Wardens and the CMO, with the Warden having responsibility for final approval of the plan. Associate Wardens and the CMO have responsibility for daily functional implementation of the IOP." Id. However, defendant Traquina was a "signatory" to Solano's IOP no earlier than the May 2006 version, and Sisto became a signatory in 2007 (with Traquina signing on again). Id.

Against this background of the defendants' institutional responsibilities, the plaintiffs allege that Defendants Sisto and Traquina failed to implement the aforementioned protocols and procedures, thereby knowingly exposing Plaintiffs... to other inmates with active TB. Further, defendants... had personal knowledge that at CSP-Solano, the policies and protocols for prevention of tuberculosis were not being enforced and that some inmates, such as plaintiffs, would therefore be infected.

First Am. Compl. ¶ 13. Plaintiffs allege that after they were diagnosed with latent TB, "they were required to take dangerous anti-TB medications for many months and experienced side effects from these medications. They will also require medical monitoring for the rest of their lives, because they are at risk of developing active TB, especially if their immune systems become compromised by other disease states...." Id. at ¶ 14.

Plaintiffs seek "general damages," special damages that include the cost of future medical monitoring following release from prison, punitive damages, attorneys' fees and costs. Id., p. 17.

II. Defendants' motion to dismiss

Defendants have moved to dismiss under Rules 12(b)(1) and (6), arguing: (1) the court does not have jurisdiction under Article III because there is no case or controversy ripe for adjudication; (2) plaintiffs' Eighth Amendment claims should be dismissed to the extent they are based on the alleged failure to follow state policies or law; (3) plaintiffs cannot state a civil rights claim based on defendants' supervisory status; (4) plaintiffs have not alleged a causal ...


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