United States District Court, C.D. California
Tom Findley, et al.
Pacific Gas and Electric Company, et al.
Present: Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE
(In Chambers) Granting Plaintiffs' Motion for Leave to
File Third Amended Complaint [Dkt. 68] and Denying
Defendant's Motion to Dismiss as Moot [Dkt. 47]
Tom Findley and Kimberly Blowney (“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.
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.
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. 29, 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.
28, 2016, Defendant filed a Motion to Dismiss the FAC. Dkt.
31. On August 2, 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. 43.
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. 44, SAC; Dkt. 45,
Memorandum of Points and Authorities; Dkt. 46, 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.
September 1, 2016, Defendant filed the instant Motion to
Dismiss the SAC. Dkt. 47, 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. 55, MTD Opp.; Dkt.
57, Memorandum of Points and Authorities; Dkt. 59,
Supplemental Memorandum of Points and Authorities. On
September 22, 2016, Defendant filed a Reply. Dkt. 61, MTD
November 8, 2016, Plaintiffs 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. 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. 77, Opp. On
December 2, 2016, Plaintiffs filed a Reply. Dkt. 79, 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” 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).