United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
DEFENDANTS' MOTION TO DISMISS ORDER VACATING SEPTEMBER 4,
2019 HEARING (ECF Nos. 33-34, ) OBJECTIONS DUE WITHIN
before the Court is Defendants' motion to dismiss the
above referenced action on the grounds of qualified immunity.
Plaintiffs did not file an opposition to the motion to
Local Rule provides that a party who fails to file a timely
opposition is not entitled to be heard in opposition to the
motion at oral argument. L.R. 230(c). Accordingly, the Court
shall vacate the September 4, 2019 hearing on the motion to
dismiss and the parties are not required to appear on that
April 28, 2015, Melvin Cooper, individually and as successor
in interest to Rodney Allen Cooper filed this action against
defendants Edmund G. Brown Jr., Arnold Schwarzenegger,
Jeffrey Beard, Matthew Cate, Carl Wofford, and James Hartley.
A first amended complaint was filed on August 17, 2015,
adding John E. Rogers as the representative of the estate and
Kathy Mendoza-Powers as a defendant in the action. The matter
was stayed on November 30, 2015 pending the resolution of the
appeals in the related cases of Smith, et al. v.
Schwarzenegger, et al., appeal no. 15-17155, Hines
v. Youssef, appeal no. 15-16145, and Jackson, et al.
v. Brown, et al., appeal no. 15-17076. On February 1,
2019, the Ninth Circuit issued an order affirming the
district court decision in Smith, et al. v.
Schwarzenegger, et al., appeal no. 15-17155, and
Hines v. Youssef, appeal no. 15-16145, and affirming
in part and reversing in part in Jackson, et al. v.
Brown, et al., appeal no. 15-17076. The stay of this
matter was lifted on April 5, 2019. On July 25, 2019, after
being granted an extension of time to respond to the
complaint, the named defendants filed the instant motion to
Allen Cooper was a former inmate in the custody of the
California Department of Corrections (“CDCR”) and
was housed at Avenal State Prison (“ASP”) which
is located in the Central Valley of California beginning in
2007. Mr. Cooper was of African-American descent, was
diagnosed with Valley Fever around 2009, and died on April
27, 2013. Plaintiff Melvin Cooper is Rodney's father.
Plaintiff John E. Rogers is the appointed personal
representative of Rodney's estate. Arnold Schwarzenegger
and Edmond Brown, Jr. are former governors of the State of
California. The remaining defendants are current or former
bring this action against the state and prison officials
alleging deliberate indifferent in violation of the Eighth
Amendment, racial discrimination in violation of the Equal
Protection Clause and a substantive due process claim for
violation of the Fourteenth Amendment.
(“Valley Fever”) is a serious infectious disease
that is contracted through the inhalation of an airborne
fungus. Once the spores are inhaled and have lodged in
various locations of the respiratory system, they grow and
transform into large tissue-invasive parasitic spherules.
They can migrate through the blood into other tissues and
Fever spores are endemic in the soil of various areas of the
Southwest, but nowhere is more prevalent than in the the
Central Valley of California. Most people who get Valley
Fever have minor symptoms that resolve by themselves within
weeks. Certain individuals are at a particularly high risk of
developing the disseminated form of Valley Fever.
“Disseminated Valley Fever” commonly affects soft
tissues, bones, joints, and the membranes surrounding the
brain and spinal cord. It is progressive, painful, and
debilitating. If left untreated, it is uniformly fatal once
it progresses to meningitis.
is no cure for Disseminated Valley Fever and and surgical
excision of tissue and bone is the only medical response for
some extrapulmonary infections. There are some drugs that
have been found to be effective in treating Disseminated
Valley Fever, but they must be taken daily for the remainder
of the individual's life. Seventy-five percent of the
individuals who stop taking the drugs will relapse into
life-threatening disease within one year.
contend that the named defendants were aware of the
prevalence of Valley Fever and located ASP, California
Correctional Institution, California State Prison-Corcoran,
Wasco State Prison, North Kern State Prison, Pleasant Valley
State Prison (“PVSP”), California Substance Abuse
Treatment Facility and State Prison, and Kern Valley State
Prison in the hyper-endemic region of the San Joaquin Valley.
Plaintiffs contend that the defendants knew that the prisons
were located in an area which host the Valley Fever spores;
that certain inmates, such as Asians, Hispanics,
African-Americans, Filipinos, and American-Indians, and
immune-compromised individuals were at the highest risk of
disseminated disease; and failed to implement remedial
measures to reduce inmate exposure to Valley Fever. A 2006
memo described the infection rates within CDCR showing an
increase from 2001 to 2006 with a dramatic increase of
incidents in 2006. Infection rates were as high as 7 % during
2006-2010. The rate of Valley Fever is significantly higher
at PVSP and ASP than the surrounding county. Between 2006 and
2011, approximately 36 inmates died from Valley Fever. In
November 2007, CDCR implemented a policy that protected
persons with certain medical conditions but did not protect
other inmates who defendants knew were at risk and did not
stem the epidemic of Valley Fever.
the plaintiffs allege that each of the named defendants was
aware of the elevated risk of inmates in the hyper-endemic
areas of contracting Valley Fever and that failure to control
inmate exposure to the soil in the areas increased the risk.
Despite this knowledge, no efforts were taken to remediate
the inmates' exposure to Valley Fever spores. Plaintiffs
bring this action seeking monetary damages.
MOTION TO DISMISS LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6), a party may file a
motion to dismiss on the grounds that a complaint
“fail[s] to state a claim upon which relief can be
granted.” A motion to dismiss pursuant to Rule 12(b)(6)
tests the legal sufficiency of the complaint. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a
motion to dismiss, “[a]ll allegations of material fact
are taken as true and construed in the light most favorable
to the nonmoving party.” Cahill v. Liberty Mut.
Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The
pleading standard under Rule 8 of the Federal Rules of Civil
Procedure does not require “ ‘detailed factual
allegations,' but it demands more than an unadorned,
the-defendant-unlawfully harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In assessing the sufficiency of a complaint, all
well-pleaded factual allegations must be accepted as true.
Iqbal, 556 U.S. at 678-79. However,
“[t]hreadbare recitals of ...