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Bolin v. Pacific Gas and Electric Co. PG And E

United States District Court, C.D. California

February 10, 2017

Carolyn Bolin, et al.
v.
Pacific Gas and Electric Company PG and E, et al.

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Granting Plaintiffs' Motion for Leave to File Third Amended Complaint [Dkt. 67] and Denying Defendant's Motion to Dismiss as Moot [Dkt. 48]

         I.

         INTRODUCTION

         Plaintiffs Carolyn Bolin and William Bolin (“Plaintiffs”), 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”). Plaintiffs 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) Plaintiffs' Motion to Amend is GRANTED.

         II.

         PROCEDURAL HISTORY

         On April 12, 2016, Plaintiffs filed a civil rights complaint (“Complaint”) alleging Defendant violated (1) the Safe Drinking Water Act (“SDWA”); and (2) Plaintiffs' civil rights under 42 U.S.C. §§ 1983, 1985(3), and 1986. See ECF Docket No. (“Dkt.”) 1, Compl. Plaintiffs alleged Defendant poisoned “not only . . . the aquifer beneath the Plaintiffs' 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.

         On June 10, 2016, Plaintiffs filed a First Amended Complaint (“FAC”) alleging Defendant violated Plaintiffs' civil rights under 42 U.S.C. §§ 1983 and 1985(3). Dkt. 30, FAC. Plaintiffs alleged Defendant's remedial operations to remove hexavalent chromium from Hinkley's Aquifer, to which Plaintiffs 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. Plaintiffs 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.

         On June 28, 2016, Defendant filed a Motion to Dismiss the FAC. Dkt. 31. On August 1, 2016, the Court granted Defendant's Motion to Dismiss the FAC finding the SDWA preempts Plaintiffs' civil rights claims under 42 U.S.C. §§ 1983 and 1985(3), but granting Plaintiffs leave to amend. Dkt. 44.

         On August 18, 2016, Plaintiffs filed the SAC once again alleging Defendant violated Plaintiffs' 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. Plaintiffs 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 drinking 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. Plaintiffs further alleged Defendant poisoned Plaintiffs' drinking water by “injecting ‘denature ethanol' [‘E85 GASOLINE'].” Id. at 13 (brackets in original). Plaintiffs also alleged the State of California Water Board and the Lahontan Regional Water Quality Control Board have never checked Plaintiffs' well or aquifer and have refused to acknowledge that Plaintiffs' wells are contaminated with Arsenic and/or with Uranium. Id. at 5.

         On September 1, 2016, Defendant filed the instant Motion to Dismiss the SAC. Dkt. 48, MTD. Defendant argues: (1) the SDWA preempts Plaintiffs' claims under 42 U.S.C. §§ 1983 and 1985(3); (2) Plaintiffs fail to allege discrimination in their 42 U.S.C. § 1985(3) claim; (3) Plaintiffs' claims are untimely; and (4) Plaintiffs fail to allege “they suffered injury as a result of [Defendant]'s concerted action with government actors” in their 42 U.S.C. § 1983 (“Section 1983”) claim. Id. at 2-10. On September 15, 2016, Plaintiffs 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 Reply.

         On November 8, 2016, Plaintiffs filed the instant Motion to Amend with a proposed Third Amended Complaint (“Proposed TAC”). Dkt. 67, Mot. to Amend; Dkt. 67-1, Proposed TAC; Dkt. 70, Memorandum of Points and Authorities in support of Motion to Amend and TAC (“TAC Mem.”). Plaintiffs incorporate the Memorandum filed in support of their 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 Plaintiffs' ground drinking water to be poisoned with the by-products Arsenic and Uranium. Proposed TAC at 6. Plaintiffs explain 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 Plaintiffs allege the various regulatory agencies do not regulate private wells, they attach 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. Plaintiffs allege 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. 78, Opp. On December 2, 2016, Plaintiffs filed a Reply. Dkt. 80, Reply.

         This matter is thus submitted for decision.

         III.

         STANDARD OF REVIEW

         Federal 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” leave to amend should be “freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

         IV.

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