United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS BEARD, BRAZELTON, BROWN, CATE, HARTLEY, HUBBARD, ROTHCHILD, SCHWARZENEGGER AND YATES' MOTION TO DISMISS AND GRANTING DEFENDANTS IGBINOSA AND WINSLOW'S MOTION TO DISMISS (ECF No. 37, 38, 39, 61, 62, 64, 65) OBJECTIONS DUE WITHIN FOURTEEN DAYS
STANLEY A. BOONE, Magistrate Judge.
This action was filed on October 28, 2013. Currently before the Court are two motions to dismiss filed on May 5, 2014.
Plaintiffs Corey Lamar Smith, Dion Barnett, Christopher Garner, Rodney Ray Roberts, Jeremy Romo, and Danny Dallas ("Plaintiffs") filed a complaint in this action against Defendants Arnold Schwarzenegger, Jeffrey A. Beard, Paul D. Brazelton, Matthew Cate, J. Clark Kelso, James D. Hartley, Susan L. Hubbard, Deborah Hysen, Dr. Felix Igbinosa, Tanya Rothchild, State of California, Dr. Dwight Winslow, James A. Yates, and Edmund G. Brown in the Sacramento Division of the Eastern District of California on October 28, 2013. (ECF No. 1.) On January 16, 2014, this action was transferred to the Fresno Division of the Eastern District of California. (ECF No. 7.) On January 28, 2014 an order issued relating this action to Jackson v. State of California, , 1:13-cv-01055-LJO-SAB, a class action raising similar claims. (ECF No. 15.) On this same date, Plaintiffs filed a first amended complaint alleging reckless exposure to dangerous conditions and deliberate indifference to serious medical needs in violation of the Eighth Amendment and negligence under California law. (ECF No. 14.)
On March 27, 2014, this action was related to Beagle v. Schwarzenegger, , 1:14-cv-00430-LJO-SAB, a similar multi-Plaintiff action. Beagle v. Schwarzenegger, , 1:14-cv-00430-LJO-SAB at ECF No. 14.
On May 5, 2014, Defendants Beard Brazelton, Brown, Cate, Hartley, Hubbard, Rothchild, Schwarzenegger, and Yates filed a motion to dismiss and request for judicial notice. (ECF Nos. 37, 38.) On this same date, Defendants Igbinosa and Winslow filed a motion to dismiss and a notice of joinder in the motion to dismiss filed by the co-defendants. (ECF Nos. 39, 40.)
On May 9, 2014, the Court issued an order to show cause why this action should not be consolidated with the related cases. (ECF No. 42.) On May 20, 2014, Plaintiffs filed a notice of voluntary dismissal of Defendant Kelso. (ECF No. 46.)
On May 21, 2014, responses to the order to show cause were filed. (ECF No. 47, 48.) On May 22, 2014, Defendant Kelso was dismissed without prejudice and an additional response to the order to show cause was filed by Defendants Kelso and Winslow. (ECF Nos. 49, 51.) On May 28, 2014, Defendants filed an opposition to the order to show cause response. (ECF No. 53.) On May 29, 2014, Plaintiffs filed a notice of related case and Defendant Hysen filed a notice of joinder in Defendants' motion to dismiss. (ECF Nos. 54, 55.) On May 30, 2014, an order was signed relating this action to Abukar v. Schwarzenegger, , 1:14-cv-00816-SAB. Id. at ECF No. 11.
Plaintiffs filed two oppositions to the motions to dismiss on June 4, 2014. (ECF Nos. 61, 62.) On June 11, 2014, Defendants Beard, Brazelton, Brown, Cate, Hartley, Hubbard, Hysen, Rothchild, Schwarzenegger, and Yates filed a reply, and Defendants Igbinosa and Winslow filed a reply and notice of joinder in co-defendants reply. (ECF Nos. 67, 65, 66.)
The Court heard oral arguments on June 18, 2014. (ECF No. 68.) Counsel Benjamin Pavone appeared telephonically and counsel Gregg Zucker and David Elliot appeared for Plaintiffs; counsel Michelle Angus appeared for Defendants Schwarzenegger, Beard, Brazelton, Cate, Hartley, Hubbard, Hysen, Rothchild, Yates, and Brown; and counsel Susan Coleman appeared for Defendants Igbinosa and Winslow. Id . Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, arguments presented at the June 18, 2014 hearing, as well as the Court's file, the Court issues the following findings and recommendation.
Plaintiffs state that Coccidioidomycosis ("Valley Fever") is carried by organisms that live in the soil in certain limited geographic areas. (First Am. Compl. ¶ 5, ECF No. 14.) Most individuals who contract Valley Fever have no symptoms or mild to moderate flu-like symptoms. ( Id. at ¶ 6.) However, in certain ethnic and racial groups, including African-Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as those who are immune-compromised or immune-suppressed, the disease can rapidly progress to a disseminated form. (Id.) In the disseminated form, the disease attacks multiple organs requiring the individual to need life-long treatment and possibly causing brain damage or death. ( Id. at ¶ 7.)
Plaintiffs to this action are inmates or former inmates of the state correctional system that contracted Valley Fever. ( Id. at ¶ 8.) Plaintiffs contend that Defendants were aware of the danger of contracting Valley Fever and failed to take action to protect them from the disease. ( Id. at ¶¶ 9-12.)
Plaintiffs allege that Defendant Schwarzenegger was the Governor of California from 2003 through 2011 when the Valley Fever epidemic began and it sharply escalated during that time period. ( Id. at ¶ 14.) Defendant Schwarzenegger acknowledged that inmates were coming down with Valley Fever but took no action to address the epidemic. (Id.) Defendant Schwarzenegger had the authority to establish CDCR policies and practices and failed to adopt a policy that would have prevented high risk inmates from being located at or remaining at hyper-endemic prisons. ( Id. at ¶ 15.) Defendant Schwarzenegger condoned the decision by his subordinates to authorize major construction at or immediately adjacent to the hyper-endemic prison at Pleasant Valley. ( Id. at ¶ 17.)
Defendant Brown, the current Governor of California, continued the state policies and practices put in place by Defendant Schwarzenegger. ( Id. at ¶ 18.)
Defendant Beard is the current Secretary of the California Department of Corrections and Rehabilitation ("CDCR"). ( Id. at ¶ 20.) Defendant Beard is responsible for the policies and practices of the CDCR as well as the day to day operational decisions. (Id.) Defendant Beard allowed the policies set in place by his predecessor to continue. (Id.)
Defendant Cate was the Secretary of CDCR from 2008 through 2012. ( Id. at ¶ 21.) Defendant Cate created and continued policies that allowed transfer of inmates and failed to protect high risk prisoner groups. (Id.)
Defendant Hubbard is the former Director of CDCR's Division of Adult Operations and was personally involved in the decision to adopt a policy that continued to allow Plaintiffs to be housed in hyper-endemic prisons. ( Id. at ¶ 22.) The policy acknowledged the health risk to medically compromised inmate groups but omitted exclusion of inmates at risk due to ethnicity or race. (Id.)
Defendant Rothchild is the former Chief of CDCR's Classification Services Unit ("CSU"). ( Id. at ¶ 23.) The CSU is responsible for setting policies to assign or prevent assignment of inmates to prisons and making the ministerial decisions to assign each individual inmate to a specific prison. (Id.) Defendant Rothchild created and continued policies authorizing transfer of at risk inmates to hyper-endemic prisons. (Id.)
Defendant Hysen is the Chief Deputy Secretary of the CDCR Executive Office of Facility Planning, Construction and Management. ( Id. at ¶ 24.) Defendant Hysen did not implement any environmental mitigation measures that were identified to reduce the risk of infection to Plaintiffs. (Id.)
Defendant Meyer is Senior Chief of CDCR Executive Office of Facility Planning, Construction and Management. ( Id. at ¶ 25.) Defendant Meyer did not implement any environmental mitigation measures at the hyper-endemic prisons. (Id.)
Defendant Winslow is the former Statewide Medical Director for CDCR. ( Id. at ¶ 27.) In June 2007, Defendant Winslow authored a memo disclosing that CDCR was aware of the risk of infection at hyper-endemic prisons and that the risk was greater for certain ethnic groups. (Id.) The memorandum included recommendations to reduce the infection rate inside the prison. (Id.) In November 2007, Defendant Winslow made policy recommendations that did not include exclusion of inmates based upon their racial or ethnic group. (Id.) Defendant Winslow personally participated in the adoption of policies that allowed high risk inmates to continue to be transferred to institutions that were experiencing epidemic levels of Valley Fever. ( Id. at ¶ 28.)
Defendant Brazelton was Warden of Pleasant Valley State Prison ("PVSP") from summer of 2012 to fall of 2013. ( Id. at ¶ 29.) Defendant Brazelton failed to take any action to correct the unsafe conditions at the prison, to prevent Plaintiffs from being housed there, or to protect inmates from contracting Valley Fever. (Id.)
Defendant Yates was the Warden of PVSP from 2005 through 2012. ( Id. at ¶ 30.) Defendant Yates was aware of the Valley Fever epidemic yet failed to adopt policies or procedures to avoid the transfer of high risk inmates into the prison or protect those high-risk inmates housed at PVSP. (Id.)
Defendant Hartley is the current Warden at Avenal State Prison ("ASP"). ( Id. at ¶ 31.) Defendant Hartley made an independent decision to accept certain Plaintiffs at ASP. (Id.) Defendant Hartley is responsible for the operations of ASP and continued the policy to accept at-risk prisoners and failed to implement basic remedial measures to make the facility safe. (Id.)
Defendant Igbinosa is the Medical Director at PVSP. ( Id. at ¶ 32.) Defendant Igbinosa was aware of the epidemic incidence rates of disease and medical risks to Plaintiffs and failed to take any action to address the epidemic or reduce inmate exposure to the disease. (Id.) Defendant Igbinosa did not implement a prison-level policy of screening inmates for risk of contracting Valley Fever. (Id.)
Plaintiffs contend that Defendants have had notice of the risk of Valley Fever for over fifty years based upon publications in the American Journal of Public Health. ( Id. at ¶¶ 53-55.) Between 1987 and 1997, the CDCR built eight prisons within the endemic and hyper-endemic regions of the Central Valley. ( Id. at ¶ 55. Plaintiffs contend that PVSP was extraordinarily dangerous in regards to exposing inmates to Valley Fever because the soil surrounding and under PVSP is densely contaminated with Coccidioides fungus. ( Id. at ¶¶ 56, 58.) The prison grounds contain broad expanses of bare dirt without any vegetation which allows the spores to circulate in the air and into the buildings. ( Id. at ¶ 59.)
In November 2004, Renee Kanan, Deputy Director of Health Care Services, wrote a memo to all health care managers, staff and CDCR officials regarding Valley Fever and its origin in soil. ( Id. at ¶ 60.) The memo stated that Central Valley prisons are located within areas that host the fungus in the soil; Valley Fever can be lethal for people exposed to the fungus; winds and construction activity may cause the organism to be blown into the air where it could be inhaled; this may cause a percentage of individuals to catch pneumonia or disseminated disease; the risk of disseminated disease is highest in American Indians, Asians, Blacks, and immuno-compromised individuals. ( Id. at ¶ 61.) Plaintiffs contend this memo was and is still widely distributed within CDCR. ( Id. at ¶ 62.) A compromised immune system can be caused by chronic diseases such as diabetes, HIV, lung disease, organ transplant, or taking TNF inhibitators as medication for arthritis. ( Id. at ¶ 89.) Individuals over the age of fifty five have also been found to be at increased risk of developing severe disseminated disease. (Id.)
In 2005, PVSP began to experience an epidemic of Valley Fever. ( Id. at ¶ 63.) The infection rates at PVSP were as much as 1, 000 times the rate seen in the local population. ( Id. at ¶ 64.) An October 27, 2006 memo described the infection rates within the CDCR and the rates at PVSP had increased by more than 445% between 2001 and 2005, and by over 2, 500% by 2006. ( Id. at ¶¶ 65, 66.)
In 2005 a prisoner rights group sent an informational briefing to Defendant Schwarzenegger describing the threat of Valley Fever and the threat to African-Americans, Filipinos, elderly inmates, and the immune-compromised. ( Id. at ¶ 102.) In 2006, the prison system accounted for 30% of all Valley Fever cases reported to the State Department of Health. ( Id. at ¶ 67.)
After the 2005 outbreak at PVSP, California Corrections Health Care Services ("CCHCS") requested and received assistance from the California Department of Public Health ("CDPH") in assessing and controlling cocci at PVSP. ( Id. at ¶ 69.) CDPH reported that the rate of Valley Fever cases at PVSP was 38 times the rate of residents of Coalinga and 600 times the rate in Fresno County. ( Id. at ¶ 70.) The increased rate at CDPH was reported as associated with increased outdoor time, pre-existing health conditions, and African-American race. ( Id. at ¶ 70.)
An August 2006 internal memorandum confirmed that Defendants were aware that inmates were being housed in hyper-endemic locations. ( Id. at ¶ 71.) During 2006 through 2010 the rates of Valley Fever at PVSP, ASP, Wasco State Prison, and North Kern State Prison were significantly higher than rates in the counties in which they are located. ( Id. at ¶ 72.) Of the twenty-seven inmates who died of Valley Fever between 2006 and 2010 sixty eight percent of them were African-American. ( Id. at ¶ 74.) The rapid and continued increase in Valley Fever at PVSP in 2005/2006 was attributed to new construction next to the prison. ( Id. at ¶ 75.) Defendants increased this risk by deciding to construct a new mental hospital facility immediately adjacent to the prison. ( Id. at ¶ 76.)
Following the start of construction, the number of Valley Fever cases increased. ( Id. at ¶ 77.) By mid-August 2006, PVSP had recognized 300 new cases of Valley Fever. (Id.) The excavation and construction adjacent to the prison placed an inordinate amount of Coccidioides spores into the air in and around the prison. ( Id. at ¶ 78.)
In 2006 and 2007, a Fresno County Grand Jury evaluated inmate health status at PVSP and made a series of recommendations. ( Id. at ¶ 96.) The report stated that inmates and staff continue to be at great risk from Valley Fever, and that African-American, Hispanic, Filipino, and other Asian inmates were at a far greater risk than other ethnicities. ( Id. at ¶¶ 97, 100.) These reports were issued to Defendants Beard, Brazelton, Yates, and Cate and were forwarded to other CDCR officials. ( Id. at ¶ 98.)
In January 2007, a study by the California Department of Public Health, Center for Infectious Disease was published. ( Id. at ¶ 109.) The study found that the number of cases of Valley Fever reported at PVSP in 2005 was three times that of the rest of Fresno County. ( Id. at ¶ 110.) The study reported that individuals with a suppressed immune system, African-Americans, Hispanics, Filipinos, and other Asians are at a higher risk of developing disseminated disease. ( Id. ¶ 110.) The study, which was widely circulated within CDCR, recommended relocating those inmates at highest risk to areas not in the hyper-endemic area and to take steps to minimize exposure to Valley Fever, including ventilation, respiratory protection and dust suppression and soil control. ( Id. at ¶ 111.)
In a January 11, 2007 memo to the CDCR, the Department of Public Health ("DPH") informed the CDCR that studies have suggested that the risk of complications is increased for individuals of African or Filipino descent and heavily immuno-suppressed individuals. ( Id. at ¶ 92.) The DPH concluded that exclusion of these high-risk inmates was the most effective method to decrease the risk of Valley Fever infections. (Id.)
In June 2007, CCHCS issued recommendations, including landscaping with ground cover and concrete, diverting and relocating inmates at high risk, and not expanding prison beds in the hyper-endemic areas, especially at PVSP. ( Id. at ¶ 80.) In August 2007, Prison Legal News ran an article detailing the source, exposure, prognosis, and risk factors for Valley Fever in the subject prisons. ( Id. at ¶ 113.)
In September 2007, Defendant Schwarzenegger proposed that California construct new dormitories at PVSP to expand the number of prisoners housed there. ( Id. at ¶ 103.) When questioned during a press conference about the proposed expansion exposing more prisoners to Valley Fever, Defendant Schwarzenegger indicated he was not concerned and that they would go ahead and build. ( Id. at ¶ 104.)
In November 2007, prison officials issued a formal exclusion policy for inmates with certain medical conditions, but did not include inmates at high risk due to their ethnicity or race. ( Id. at ¶ 81.) During 2007, CDCR Facilities Department officials, including Defendant Hysen, stated that they were preparing measures to reduce the risk to inmates of contracting Valley Fever at PVSP. ( Id. at ¶ 116.) The plan, which included extensive measures to control inmate's exposure to contaminated soil and ventilation systems inside the buildings was never implemented. ( Id. at ¶¶ 117, 118.)
During 2007, Defendant Yates was quoted in an article by the New York Times as stating that inmates and staff at PVSP contracted Valley Fever from breathing the spores in the air as they walk around. ( Id. at ¶ 120.) From 2007 through 2010, the rate of Valley Fever at PVSP was six times higher than the rate of infection at the adjacent state mental health facility. ( Id. at ¶ 82.)
After a federal health agency project was terminated, in December 2009 officials from the Centers for Disease Control and National Institute for Occupational Safety and Health wrote letters to the CDCR stating that African-American, Asian or Filipino, or immuno-compromised individuals were at a greater risk of developing disseminated infection. ( Id. at ¶ 83.)
In 2011, CDCR sprayed a temporary sealant on some soils at PVSP. ( Id. at ¶ 181.) During an October 2011 press conference, Defendant Schwarzenegger announced that the State's policy and practice of transferring prisoners to PVSP would continue unabated despite the risk of Valley Fever. ( Id. at ¶ 84.) An April 2012 study reported that seven out of 100 inmates at PVSP became infected with Valley Fever. ( Id. at ¶ 68.)
In April 2012, the CCHCS released a report finding that CDCR had done nothing between 2006 and 2010 that had any effect on cocci incidence rates at PVSP and ASP. ( Id. at ¶ 125.) The report indicated that Valley Fever incidence rates were drastically elevated and that African-Americans in particular were at an increased rate of contracting Valley Fever in its disseminated form. ( Id. at ¶126.) The report found that PVSP had extensive areas of un-stabilized soil on its grounds. ( Id. at ¶127.) Over 80 CDCR facility staff members have contracted Valley Fever and there has been at least one correctional officer who died from the disease. ( Id. at ¶ 129.)
In November 2012, the court-appointed receiver managing the prison health care system issued a recommendation. ( Id. at ¶ 189.) The document recommended ceasing to transfer African-Americans, persons with diabetes, and those with no HIV results to PVSP and ASP. (Id.)
In March 2013, CDCR installed dust control devices, such as air filters and door sweeps, in some prison facilities. ( Id. at ¶ 181.) In April 2013, the Receiver's staff experts found that African-Americans were at a 90% higher risk for disseminated cocci disease than white inmates, and other race categories were at 100% increased risk, and inmates over 55 years of age had a 60% increased risk. ( Id. at ¶ 190.)
CDCR publishes an orientation manual for all medical personnel that discusses the Coccidioiditis epidemic in detail and notes that African-Americans, Filipinos, and those with compromised immune systems or chronic diseases are at an increased risk of contracting Valley Fever. ( Id. at ¶ 106.) The orientation manual is authorized and promulgated by Defendant Winslow. ( Id. at ¶ 107.)
Plaintiffs allege that the exposure to dangerous conditions subjects them to cruel and unusual punishment and exhibited deliberate indifference to serious medical needs in violation of the Eighth Amendment and is negligence under California law. ( Id. at ¶¶ 278-294; ...