United States District Court, S.D. California
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (ECF NO. 24)
Andrew G. Schopler United States Magistrate Judge.
sued prison officials for transferring him to an area with an
increased Valley Fever risk, notwithstanding his greater
susceptibility to the disease. Those officials now assert
qualified immunity, which shields them from suit unless they
violated a “clearly established” constitutional
right. In the nine years since this prison transfer occurred,
a split has developed among the district courts in our
Circuit as to whether these facts might give rise to a
constitutional claim, with many finding that it does not.
“If judges thus disagree on a constitutional question,
it is unfair to subject [officials] to money damages for
picking the losing side of the controversy.” Wilson
v. Layne, 526 U.S. 603, 618 (1999).
higher-risk prisoners may have a clearly established right to
be free from a heightened environmental chance of disease.
But that day has not yet come. It certainly had not nine
years ago. The officials thus have qualified immunity.
Adam Jimenez asserts that he has a high risk of contracting
Valley Fever because he suffers from hepatitis C, breathing
difficulties, kidney failure, and chest and back pain. (ECF
No. 12, at 3.) In November 2008, Jimenez learned he was being
transferred to Kern Valley State Prison, which is in an area
where Valley Fever is more prevalent. (Id. at 3-4.)
He protested on the ground that, given his existing ailments,
“the Desert would [adversely] affect my health.”
(Id. at 3.) But prison officials nevertheless
transferred him that same month. He eventually contracted
Valley Fever, which was diagnosed in 2012. (Id. at
sued various officials at his original facility, R.J. Donovan
Prison, for violating his civil rights. Two of those
defendants-E. Ravelo and Dr. Silva-move to dismiss based on
qualified immunity and failure to state a claim.
qualified immunity doctrine immunizes government officials
from civil liability so long as “their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation omitted). To pierce the qualified-immunity shield,
the court must find: (1) the facts alleged or shown
“make out a violation of a constitutional right”;
and (2) that right was “‘clearly established'
at the time of defendant's alleged misconduct.”
Id. (citations omitted). “[P]laintiff bears
the burden of proof that the right allegedly violated was
clearly established.” Tarabochia v. Adkins,
766 F.3d 1115, 1125 (9th Cir. 2014) (citation and bracketing
omitted). Courts may “exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first[.]”
Pearson, 555 U.S. at 236.
unclear whether transferring an immunocompromised inmate to
an area with a higher incidence of disease violates any
constitutional right. Inmates certainly have a right to be
free from concentrated exposure to serious diseases,
as might occur if prison officials knowingly forced someone
into the same cell as an infected person. See Hutto v.
Finney, 437 U.S. 678, 682 (1978) (holding that Eighth
Amendment prohibited forcing prisoners in “punitive
isolation” to share mattresses with inmates suffering
“from infectious diseases such as hepatitis and
venereal disease”) (citation omitted); cf. Helling
v. McKinney, 509 U.S. 25, 27, 33, 35 (1993) (holding
that Eighth Amendment barred subjecting inmate to dangerous
amounts of second-hand smoke by placing him in a cell with
“another inmate who smoked five packs of cigarettes a
day, ” and analogizing this to “exposure of
inmates to a serious, communicable disease”). But it is
less obvious that prisoners have a right to be free from more
generalized disease exposure, such as by housing
vulnerable inmates in a geographical area with a higher
incidence of a particular illness.
federal courts have struggled to identify such a right in
Valley Fever cases like this one. In fact, they have not even
been able to agree on how broadly or narrowly to define the
right purportedly violated. See, e.g., Williams v.
Biter, No. 1:14-cv-02076-DAD-EPG (PC), 2017 WL 431353,
at *10-12 (E.D. Cal. Jan. 31, 2017) (reviewing Valley Fever
cases and arguing that most courts have defined the right at
issue with an improper degree of specificity).
assuming such a right exists, prison officials still have
qualified immunity if that right was not clearly established.
While the “weight of authority is that an inmate cannot
state a claim for violation of the Eighth Amendment on
confinement in a location where Valley Fever is present,
” there is some disagreement about whether a prisoner
who is particularly susceptible to Valley Fever might state
such a claim. Smith v. Schwarzenegger, No.
1:14-cv-00060-LJO-SAB, 2015 WL 2414743, at *20-21 (E.D. Cal.
May 20, 2015) (citation omitted) (collecting cases). In the
nine years since Jimenez's transfer to a Valley
Fever-endemic area, many courts have found no such clearly
established right, see id., including as recently as
last month. See Duran v. Lewis, No.
1:16-cv-00468-AWI-SAB (PC), 2017 WL 2797743, at *1 (E.D. Cal.
June 27, 2017) (“Plaintiff cannot state a claim upon
which relief may be granted based solely on the mere exposure
to Valley Fever spores, ” even if “he was at a
greater risk of contracting Valley Fever due to his
Court will not hold prison officials acting in 2008 to a
higher standard of constitutional clairvoyance than the many
federal judges who-even today-do not discern a clearly
established constitutional right in similar Valley Fever
cases. After all, official actions only violate clearly
established law “when, at the time of the challenged
conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (citation and internal
punctuation omitted). Caselaw need not have addressed the
precise factual scenario before, “but existing
precedent must have placed the statutory or constitutional
question beyond debate.” Id. (citations
omitted). While the Valley Fever debate rages on, defendants
have qualified immunity.