United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANT'S MOTION TO DISMISS THE ACTION BE
GRANTED (DOC. NOS. 33, 40)
Morris Roberson is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. The matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
17, 2019, the assigned magistrate judge issued findings and
recommendations, (Doc. No. 40), recommending that
defendant's motion to dismiss, (Doc. No. 33), be granted.
The findings and recommendations were served on plaintiff and
contained notice that objections were due within twenty-one
(21) days. No objections have been filed and the time to do
so has passed.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the court has conducted a de novo
review of this case. Defendants argue that because it was not
clearly established that prisoners had a right to be free
from the risk of exposure to valley fever, defendant Pfeiffer
is entitled to qualified immunity on plaintiff's Eighth
Amendment claim. (Doc. 33-1 at 5.) Defendants point to the
Ninth Circuit's decision in Hines v. Youseff,
914 F.3d 1218 (9th Cir. 2019), noting that the court found it
was not “obviously unlawful” for prison officials
to expose individuals to the risk of contracting valley
Hines, a consolidated appeal, the plaintiffs
challenged the constitutionality of housing inmates in a
hyperendemic area for Valley Fever under the Eighth
Amendment's prohibition on cruel and unusual punishment
and the Fourteenth Amendment's Equal Protection Clause.
914 F.3d at 1226-27. The Ninth Circuit defined the Eighth
Amendment right at issue in the consolidated appeals before
it as “the right to be free from heightened exposure to
Valley Fever spores.” Id. at 1228. The Ninth
Circuit in Hines concluded that such a
constitutional right was not clearly established at the time
the defendant officials acted.
undersigned pauses to note that in Hines, the Ninth
Circuit did not decide whether exposing inmates to a
heightened risk of Valley Fever violates or could ever
violate the Eighth Amendment. Id. at 1229
(“The courts below did not decide whether exposing
inmates to a heightened risk of Valley Fever violates the
Eighth Amendment. Neither do we.”). Instead, the
Ninth Circuit, like the courts below, proceeded
“straight to the second prong of the qualified immunity
analysis: whether a right to not face a heightened risk was
‘clearly established' at the time” the
officials in the cases before the court had acted.
Id.; see also Saucier v. Katz, 533
U.S. 194, 201 (2001) (establishing the two-part inquiry for
qualified immunity: (1) whether the alleged facts violate the
Constitution, and (2) if so, whether the constitutional right
at issue was clearly established at the time of the
said, plaintiff's allegations in this case provide no
basis upon which to depart from the qualified immunity
analysis set forth in Hines. Plaintiff's
operative first amended complaint alleges the following facts
relevant to resolution of the pending motion to dismiss. At
all times relevant, plaintiff was a prisoner housed at Kern
Valley State Prison (“KVSP”). (Doc. No. 14 at 1.)
Plaintiff asserts that the soil surrounding KVSP is
“densely contaminated with Valley Fever fungus, ”
and that defendant Pfeiffer knew-as early as 2006-that KVSP
is a “cocci hot spot.” (Id. at 10-12.)
Likewise, plaintiff claims that defendant Pfeiffer was aware
that African- Americans and Asian-Americans are at greater
risk of contracting the disseminated form of valley fever.
(Id.) Nonetheless, plaintiff alleges, defendant
Pfeiffer failed to implement any policy to lessen the effects
of, and failed to take even the most basic precautions to
protect him from exposure to, valley fever. (Id. at
10-12, 16-17.) Although he does not specifically allege that
he contracted valley fever at KVSP, plaintiff does assert
that he was injured as the result of defendant Pfeiffer's
failure to protect him from exposure to valley fever.
plaintiffs allegations provide no basis upon which to
distinguish the Ninth Circuit's binding decision in
Hines or the qualified immunity analysis set forth
therein, the undersigned concludes that defendants'
motion to dismiss must be granted.
1. The findings and recommendations filed on July 17, 2019
(Doc. No. 40) are adopted in full;
2. Defendant's motion to dismiss this action on qualified
immunity grounds (Doc. No. 33) is granted; and
3. The Clerk of the Court is directed to close this case.