United States District Court, E.D. California
OSCAR H. VILLANUEVA, Plaintiff,
M. D. BITER, Warden at Kern Valley State Prison; S. Lopez, Chief Medical Executive at Kern Valley State Prison, Defendants.
ORDER DENYING DEFENDANTS MOTION TO DISMISS
Oscar H. Villanueva, a state prisoner appearing pro
se, proceeds on this civil rights claim pursuant to 42
U.S.C. § 1983, alleging that Defendants M. D. Biter and
S. Lopez (“Defendants”) have violated the Eighth
Amendment by failing to act to remedy the
arsenic-contaminated water at Kern Valley State Prison
(“KVSP”). Defendants have filed a motion to
dismiss, arguing that each is entitled to qualified immunity.
The only question presented to this Court is whether the
right at issue was clearly established. For the following
reasons, the question presented is foreclosed by the mandate
issued in the case. Defendants’ motion to dismiss will
2001, the Environmental Protection Agency ordered a reduction
in the maximum level of arsenic in drinking water from 50
parts per billion to 10 parts per billion. Compl. At 3.
According to Plaintiff, when KVSP opened in 2005, it was
known that a serious arsenic exposure problem existed.
Id. Plaintiff specifically contends that Defendants
Biter and Lopes both knew about the risk posed by the arsenic
level and disregarded that risk. Id. at 3-4.
December 20, 2010, Defendant Biter notified all KVSP inmates
of the status of the arsenic levels in the drinking water.
Doc. 1 at 18. It was reported that the average for the two
wells that service the prison had 15 parts per billion and 19
parts per billion, respectively. Id. The inmates
were informed that the contamination level “is not an
emergency, ” and that an alternative water supply was
not necessary. Id. Inmates were further informed
that KVSP was working to install an arsenic treatment system
to completely resolve the problem. Id.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Where the plaintiff
fails to allege “enough facts to state a claim to
relief that is plausible on its face, ” the complaint
may be dismissed for failure to allege facts sufficient to
state a claim upon which relief may be granted. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see Fed. R. Civ. P. 12(b)(6). “A claim has
facial plausibility, ” and thus survives a motion to
dismiss, “when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). On a Rule 12(b)(6)
motion to dismiss, the court accepts all material facts
alleged in the complaint as true and construes them in the
light most favorable to the plaintiff. Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the
court need not accept conclusory allegations, allegations
contradicted by exhibits attached to the complaint or matters
properly subject to judicial notice, unwarranted deductions
of fact or unreasonable inferences. Daniels-Hall v.
National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
defense of qualified immunity protects “government
officials...from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). At the 12(b)(6) phase, “dismissal is not
appropriate unless [the court] can determine, based on the
complaint itself [(or an material attached thereto or
incorporated therein)], that qualified immunity
applies.” O’Brien v. Welty, 818 F.3d
920, 936 (9th Cir. 2016) (quoting Groten v.
California, 251 F.3d 844, 851 (9th Cir. 2001).
Supreme Court established a two-step inquiry for determining
whether qualified immunity exists. First, “[t]aken in
the light most favorable to the party asserting the injury,
do the facts alleged show the officer's conduct violated
a constitutional right?” Saucier v. Katz, 533
U.S. 194, 201 (2001). If no constitutional right was violated
under the facts as alleged, the inquiry ends and defendants
prevail. See Id. If, however, “a violation
could be made out on a favorable view of the
[plaintiff’s complaint], the next, sequential step is
to ask whether the right was clearly established.”
Id. at 201. A government official violates clearly
established law when, “at the time of the challenged
conduct, ‘the contours of [the] right [were]
sufficiently clear’ that every ‘reasonable
official would have understood that what he [or she] [was]
doing violate[d] that right.’” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)).
instance, the Court is only asked to consider the second
step-whether the right at issue was clearly established.
However, the Ninth Circuit has made clear in this case that
water contamination issues that Plaintiff presented are
“‘sufficient to warrant ordering [defendants] to
file an answer.’” Doc. 25 at 2 (quoting,
inter alia, Wilhelm v. Rotman, 680 F.3d
1113, 1116 (9th Cir. 2012) (holding that an inmate had
alleged deliberate indifference to a serious medical need,
requiring reversal of the Magistrate Judge’s §
1915A screening decision)). The Ninth Circuit’s
reversal of the Magistrate Judge’s § 1915A
screening-applying the same standard as used for 12(b)(6)
motions, see Wilhelm, 680 F.3d at 1121-does not
leave room for Defendants to seek a determination that
entitlement to qualified immunity is clear from the face of
the complaint. See Chavez v. Robinson, 817 F.3d
1162, 1168-1169 (9th Cir. 2016) (Section 1915A
“allow[s] a court to dismiss sua sponte a prisoner
complaint that ‘seeks redress from [an] …
employee of a governmental entity’ on the grounds of
[qualified] immunity.”)) The Ninth Circuit noted that
it reviewed the Magistrate Judge’s screening order de
novo. Doc. 25 at 2. It was permitted to “affirm on any
basis supported by the record.” Valdez v. United
States, ___Fed.Appx.___ 2016 WL 3144005, *1 (9th Cir.
June 6, 2016); Columbia Pictures Indus. v. Fung, 710
F.3d 1020, 1030 (9th Cir. 2013). Yet, the Ninth Circuit
decided that the Magistrate Judge’s determination
should be reversed and the Defendants should be required
“to file an answer.” Doc. 25 at 2. That reversal
is inconsistent with qualified immunity being evident from
the face of the complaint.The rule of mandate does not allow this
Court to revisit any determination clearly foreclosed by that
mandate. Hall v. City of Los Angeles, 697 F.3d 1059,
1067 (9th Cir. 2012); accord Stacy v. Colvin,
___F.3d ___, 2016 WL 3165597, *3 (9th Cir. June 7, 2016).
This Court may only execute the Ninth Circuit’s
mandate. Id. In this case, a conclusion that
qualified immunity is clear from the face of the complaint is
clearly foreclosed by mandate.
ask the Court to take judicial notice of a “Groundwater
Information Sheet” made publicly available by the State
Water Resources Control Board. See Doc. 33-2
(“RJN”). The Court “may judicially notice 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)(2). The court may take
“judicial notice of records of state agencies and other
undisputed matters of public record.” Disabled
Rights Action Committee v. Las Vegas Events, Inc., 375
F.3d 861, 866 n.1 (9th Cir. 2004) (citing, inter
alia, Lee v. City of Los Angeles, 250 F.3d 668,
689 (9th Cir. 2001)). The State Water Resources Control
Board’s arsenic groundwater information sheet is
appropriately judicially noticed. That said, the only fact
contained in that report the Defendants direct the Court to
is “1, 034 of [the 7, 804] active wells tested in
California” (139 of which were located in Kern County)
are contaminated with arsenic. Doc. 33-1 at 9; RJN at 6.
Defendants ignore the remainder of that report, detailing
that “[a]rsenic is a known human carcinogen, and
ingestion of arsenic has been reported to increase the risk
of cancer in the liver, bladder, kidney, lung and skin,
” and that “the lifetime risk of developing
bladder or lung cancer from arsenic in tap water (assuming 2
liters consumption per day) is greater than 3 in 1, 000 for
an arsenic level of 10 g/L.” RJN at 10.
Defendants’ suggestions the Court could conclude from
the arsenic groundwater information sheet that Defendants
were unaware of a serious risk of harm or that no such risk
existed are unavailing. Insofar as this Court could depart
from the Ninth Circuit’s order based on information
presented that was not before the Ninth Circuit, it is not
justified here. Defendants’ motion will be denied on