United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Granting Plaintiff's Motion for Leave to
File Third Amended Complaint [Dkt. 68] and Denying
Defendant's Motion to Dismiss as Moot [Dkt. 48]
Darlene Herring Jenkins (“Plaintiff”), proceeding
pro se, filed a Second Amended Complaint
(“SAC”) alleging defendants Pacific Gas and
Electric Company and Does 1 through 10 violated 42 U.S.C.
§§ 1983 and 1985(3). Defendant Pacific Gas and
Electric Company (“Defendant”) filed a Motion to
Dismiss the SAC (“Motion to Dismiss”). Plaintiff
then filed a Motion for Leave to File a Third Amended
Complaint (“Motion to Amend”). The Court finds
both motions suitable for decision without a hearing. For the
reasons set forth below, (1) Defendant's Motion to
Dismiss is DENIED as moot, and (2) Plaintiff's Motion to
Amend is GRANTED.
March 18, 2016, Plaintiff filed a civil rights complaint
(“Complaint”) alleging Defendant violated (1) the
Safe Drinking Water Act (“SDWA”); and (2)
Plaintiff's civil rights under 42 U.S.C. §§
1983, 1985(3), and 1986. See ECF Docket No.
(“Dkt.”) 1, Compl. Plaintiff alleged Defendant
poisoned “not only . . . the aquifer beneath the
Plaintiff's real property located in Hinkley, CA 92347,
but virtually . . . all aquifers beneath said town”
with “byproducts Arsenic and Uranium . . . in the
ground drinking water.” Id. at 4.
April 11, 2016, Defendant filed a Motion to Dismiss the
Complaint. Dkt. 3. On June 2, 2016, the Court granted
Defendant's Motion to Dismiss the Complaint finding the
SDWA preempts Plaintiff's civil rights claims under 42
U.S.C. §§ 1983, 1985(3), and 1986, and the
Complaint failed to state a claim under the SDWA, but
granting Plaintiff leave to amend. Dkt. 27.
7, 2016, Plaintiff filed a First Amended Complaint
(“FAC”) alleging Defendant violated
Plaintiff's civil rights under 42 U.S.C. §§
1983 and 1985(3). Dkt. 29, FAC. Plaintiff alleged
Defendant's remedial operations to remove hexavalent
chromium from Hinkley's Aquifer, to which Plaintiff and
“similarly situated Plaintiff(s)” are connected
“via private individual water well[s], ”
“has further caused poisoning of Plaintiff(s) private
well with ARSENIC or URANIUM, way over the Federal and State
EPA's limits, by injecting chemicals.” Id.
at 7, 12. Plaintiff claimed to have suffered
“irreparable harm health injuries as a direct result of
being poisoned with toxic chemicals by Defendant's
operations.” Id. at 6.
24, 2016, Defendant filed a Motion to Dismiss the FAC. Dkt.
32. On August 2, 2016, the Court granted Defendant's
Motion to Dismiss the FAC finding the SDWA preempts
Plaintiff's civil rights claims under 42 U.S.C.
§§ 1983 and 1985(3), but granting Plaintiff leave
to amend. Dkt. 44.
August 18, 2016, Plaintiff filed the SAC once again alleging
Defendant violated Plaintiff's civil rights under 42
U.S.C. §§ 1983 and 1985(3). Dkt. 45, SAC; Dkt. 46,
Memorandum of Points and Authorities; Dkt. 47, Decl. in
support of SAC. Plaintiff alleged Defendant's
“failed remedial operations, ” i.e.,
Defendant's “purported” removal of hexavalent
chromium “from the poisoned ground drinking water,
” caused “substantial poisoning of ground
d[r]inking and potable water, with the by-products Arsenic
and Uranium” and that Defendant “conced[ed]
(confess[ed]) of poisoned ground drinking water with URANIUM,
way over the legal limits.” SAC at 12, 15. Plaintiff
further alleged Defendant poisoned Plaintiff's drinking
water by “injecting ‘denature ethanol'
[‘E85 GASOLINE'].” Id. at 13
(brackets in original). Plaintiff also alleged the State of
California Water Board and the Lahontan Regional Water
Quality Control Board have never checked Plaintiff's well
or aquifer and have refused to acknowledge that
Plaintiff's wells are contaminated with Arsenic and/or
with Uranium. Id. at 5.
September 1, 2016, Defendant filed the instant Motion to
Dismiss the SAC. Dkt. 48, MTD. Defendant argues: (1) the SDWA
preempts Plaintiff's claims under 42 U.S.C. §§
1983 and 1985(3); (2) Plaintiff fails to allege
discrimination in her 42 U.S.C. § 1985(3) claim; (3)
Plaintiff's claims are untimely; and (4) Plaintiff fails
to allege she “suffered injury as a result of
[Defendant]'s concerted action with government
actors” in her 42 U.S.C. § 1983 (“Section
1983”) claim. Id. at 2-10. On September 15,
2016, Plaintiff filed an Opposition. Dkt. 56, MTD Opp.; Dkt.
58, Memorandum of Points and Authorities; Dkt. 60,
Supplemental Memorandum of Points and Authorities. On
September 22, 2016, Defendant filed a Reply. Dkt. 62, MTD
November 8, 2016, Plaintiff filed the instant Motion to Amend
with a proposed Third Amended Complaint (“Proposed
TAC”). Dkt. 68, Mot. to Amend; Dkt. 68-1, Proposed TAC;
Dkt. 71, Memorandum of Points and Authorities in support of
Motion to Amend and TAC (“TAC Mem.”). Plaintiff
incorporates the Memorandum filed in support of the Motion to
Amend into the Proposed TAC. See Proposed TAC at 3;
TAC Mem. at 11. The Proposed TAC again seeks relief pursuant
to Section 1983 alleging Defendant's “Agricultural
Operations, ” i.e., “failed remedial
operations, ” caused Plaintiff's ground drinking
water to be poisoned with the by-products Arsenic and
Uranium. Proposed TAC at 6. Plaintiff explains
Defendant's irrigation of its alfalfa fields using the
“ground drinking water” caused Uranium and
Arsenic to “seep back down to the aquifer, and did
poison the rest of the drinking water in such
aquifer.” Id. at 10. While Plaintiff alleges
the various regulatory agencies do not regulate private
wells, she attaches a letter from the Executive Officer of
the State of California Lahontan Regional Water Quality
Control Board (“State Board”) stating the State
Board has continuing authority to require Defendant to clean
up the discharges from the compressor station site and
expressing hope that the “citizens of Hinkley can
dispel health concerns about their community” because
the “levels of chrom-6 in current residential wells are
much lower (better) than the state's drinking water
standard.” TAC Mem., Ex. E. Plaintiff alleges the State
Board “is protecting the Defendant from prosecution, by
avoiding to order the Defendant to clean and abate their
byproducts Arsenic and Uranium from ground drinking water . .
. because Defendant has paid said State of California Board
millions of dollar, money talks and everyone else
walks.” TAC Mem. at 13. On November 28, 2016, Defendant
filed an Opposition to the Motion to Amend. Dkt. 77, Opp. On
December 2, 2016, Plaintiff filed a Reply. Dkt. 81, Reply.
matter is thus submitted for decision.
Rule of Civil Procedure 15(a)(2) provides: “The court
should freely give leave [to amend a pleading] when justice
so requires.” Fed.R.Civ.P. 15(a)(2). “In the
absence of . . . undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, or
futility of amendment” ...