United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
DEFENDANTS' MOTION TO DISMISS ORDER VACATING SEPTEMBER 4,
2019 HEARING (ECF Nos. 26-27, ) OBJECTIONS DUE WITHIN
before the Court is Defendants' motion to dismiss the
above referenced action on the grounds of qualified immunity.
The plaintiff 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
24, 2015, Tom Hyatt (“Plaintiff”) filed this
action against Defendants Edmond G. Brown, Jr., Arnold
Schwarzenegger, Jeffrey Beard, Matthew Cate, Scott
Frauenheim, Paul Brazelton, James A. Yates, and Felix
Igbinosa. 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. (ECF No. 51.) 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 receiving an extension of time
to respond to the complaint, the named defendants filed the
instant motion to dismiss.
is in the custody of the California Department of Corrections
(“CDCR”) and was transferred to Pleasant Valley
State Prison (“PVSP”) in 2010. Plaintiff is of
American-Indian descent and was diagnosed with Valley Fever
around May 2011. Arnold Schwarzenegger and Edmond Brown, Jr.
are former Governors of the State of California. The
remaining defendants are current or former prison officials.
Plaintiff brings this action alleging deliberate indifferent
in violation of the Eighth Amendment and racial
discrimination in violation of the Equal Protection Clause 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 in the the Central
Valley of California where PVSP is located. 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” is a
serious infection that 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. Approximately seventy-five
percent of the patients who stop taking the drugs will
relapse into life-threatening disease within one year.
contends that the named defendants were aware of the
prevalence of Valley Fever and located Avenal State Prison,
California Correctional Institution, California State
Prison-Corcoran, Wasco State Prison, North Kern 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. Plaintiff states the
defendants knew that the prisons were located in an area
which host the Valley Fever spores and that American Indians,
Asians, Blacks, and immune-compromised individuals were at
the highest risk of disseminated disease. A 2006 memo
described the infection rates within CDCR showing an increase
from 2001 to 2006 with a dramatic increase of incidents in
2006, with rates as high as 7 % during 2006-2010. Plaintiff
contends that the rate of Valley Fever is significantly
higher at PVSP where he was housed than the surrounding
county. Between 2006 and 2010, approximately 36 inmates died
from Valley Fever. In 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.
Plaintiff alleges 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