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Hines v. Youseff

United States Court of Appeals, Ninth Circuit

February 1, 2019

Darnell T. Hines, Plaintiff-Appellant,
v.
Ashrafe E. Youseff, M.D.; Godwin C. Ugueze, M.D.; Joshua Garza, RNP; M. Aguirre, Defendants-Appellees. Arthur Duane Jackson; Leonard M. Lujan; Marcus Jackson; Rodney Taylor; Lacedric W. Johnson; L. T. Belton; Norman Johnson; Corey Lamar Smith; Frederick Beagle; Abdulle Abukar, Plaintiffs-Appellees,
v.
Edmund G. Brown, Jr., Governor; Matthew Cate, Secretary, California Department of Corrections and Rehabilitation; Jeffrey Beard, Secretary, California Department of Corrections and Rehabilitation; Paul D. Brazelton, Warden, Pleasant Valley State Prison; James D. Hartley, Warden, Avenal State Prison, Defendants-Appellants. Corey Lamar Smith; Dion Barnett; Christopher E. Garner; Rodney Ray Roberts; Jeremy Romo; Danny Dallas; Frederick Beagle; Don Belardes; Floyd Boyd; Richard Burke; Joseph Bustamonte; Charles Joseph Carter; Otha Clark; Donald Dibble; Jerome Felder; Candelario Garza; Jeremy Lee Hollis; Scott Imuta; George Johnson; Bruce Koklich; Grady Montgomery; Peter Romero; Josh Thomas; Aaron Tillis; Rene Villanueva; Bertrum Westbrook; Wayne James Woods; Abdulle Abukar; Ruben Arechiga; John Wesley Bess; Michael Blue; David Cox; Orlando Creswell; Daniel Dayton; Pablo Dominguez; Josh Draper; Kenji Dominique Jackson; Albert Sherrod; Adrian Sepulveda; Kirk Smith; Hector Talamantes; Ismael Torres-Robles; Kenneth Washington; Thomas Wiley; Darren Charles Williams; Theodore Wood; Donald Wright; George Yount; Garland Baker; Charles McQuarn; Richard Adams; David Atzet; Derrico Aubrey; Daniel Boland; Christopher Bonds; Keevan Burks; Kevin Call; Joseph DeJesus; Gerald W. Dickson; Eric Donaldson; Roy Lee Doss; Joseph Alfonso Duran; James Farr; Joseph Ferris; Alvin Flowers; Stephen Franklin; Aubrey Galloway; John Ray Gholar; Robert Gonzalez; Vernon Grant; Walter Green; Robert Harris; Sinoa Hercules; Bret Hill; Adrian Johnson; Ellis Clay Hollis; Edward Jones; Anthony R. Jones; Lawrence Kerner; Titi Lavea; Cleofas Lewis; Michael Manning; Robert Maeschek; Daniel Masushige; Ellis McCloud; Brandon McDonald; Jeffrey McDonald; Juan Meza; Herschel Mitchell; Noel Morales; Raymond Newsom; Jesus Antonio Perez; Harvey Rayburn; Jorge Augusto Reyes; Jay Roach; Paul Richardson; Tyrone Sanders; Johnny O. Sanchez; Edward Spence; Tracy L. Stewart; Louis Thomas; Elonza Jesse Tyler; Vance Utley; Byron West; William Wiley; Rodney Williams; Robert Wolters; Michael Morrow; Damor Hill; Corey Campbell; RobertConley; Sinohe Hercules; Juan Carlos Martinez; Juan Penalva; Robert Preston, Jr.; John Arthur Ruggles; Willie Steels; Solomon Vasquez; George Lewis; Richard Arteaga; Pablo Castaneda; Chaney Clifford; Campbell Corey; Robert Conley; Alvin Cooper; Kenneth Glen Corley; WalterCornethan; Roy Corning; Dennis Duree; Sinohe Hercules; Carlos Hernandez; Damor Hill; Danilo Jalotlot; Asad Lewis; George Lewis; Joe M. Lewis; Juan Martinez; Thomas Milford; Dale Miller; Daniel Molen; Andre Moody; Michael Morrow; Freddy Neal; Chek Ngoun; Sim Peav; Juan Penalva; Marvin Pierce; Robert Preston, Jr.; David Robinson; Ronald Rodriguez; John Arthur Ruggles; Lorenzo Sams; Leroy Smith; Willie Steels; Maurice Thomas; Tyrone Thompson; Roberto Vasquez; Solomon Vasquez; Patrick Wallace; Xavier S. Williams; Kenneth Yancey, Plaintiffs-Appellants,
v.
Arnold Schwarzenegger, Governor; Matthew Cate; James D. Hartley, Warden; Jeffrey A. Beard; Paul D. Brazelton, Warden; Susan L. Hubbard; Deborah Hysen; Scott Kernan; Chris Meyer; Tonya R. Rothchild; Teresa Schwartz; James A. Yates, Warden; Dwight Winslow, M.D.; Felix Igbinosa, M.D.; Edmund G. Brown, Jr., Governor, Defendants-Appellees. Lorenzo Gregge, Jr., Plaintiff-Appellant,
v.
Matthew Cate; Ralph Diaz, Secretary, California Department of Corrections and Rehabilitation;

          Argued and Submitted May 17, 2017 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California D.C. Nos. 1:13-cv-00357- AWI-JLT, 1:13-cv-01055- LJO-SAB, 1:14-cv-00060- LJO-SAB, 1:15-cv-00176- LJO-SAB Anthony W. Ishii, District Judge, Presiding.

          Gregg Zucker (argued) and Victoria Niewrzol, Affeld Grivakes Zucker LLP, Los Angeles, California; Tara Burd and Benjamin Pavone, Pavone & Fonner, San Diego, California; Matthew B. Pavone, Law Offices of Matthew B. Pavone, Novato, California; Frederik Spiess and Edward Burns, Burns & Schaldenbrand, Oceanside, California; David Elliot, Law Offices of David Elliot, San Diego, California; for Plaintiffs-Appellants Smith and Gregge, et al.

          Greg W. Garrotto (argued), Law Offices of Garrotto & Garrotto, Los Angeles, California, for Plaintiff-Appellant Hines.

          Milin Chun (argued), Brian M. Bush, and Raymond P. Boucher, Boucher LLP, Woodland Hills, California; Ian Wallach and Jason Feldman, Feldman & Wallach, Santa Monica, California; Mark Ozzello, Arias Ozzello & Gignac, Los Angeles, California; for Plaintiffs-Appellants/Cross-Appellees Jackson, et al.

          Jay Russell (argued), Supervising Deputy Attorney General; Kevin A. Voth, Martine D. Agostino, and Maureen Onyeagbako, Deputy Attorneys General; Jon S. Allin and Thomas S. Patterson, Supervising Attorneys General; Jonathan L. Wolff, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees/Cross-Appellants.

          Kristina Doan Gruenberg and Susan E. Coleman, Burke Williams & Sorensen LLP, Los Angeles, California, for Defendants-Appellees Igbinosa and Winslow.

          Before: Andrew J. Kleinfeld and Sandra S. Ikuta, [**] Circuit Judges, and Rosanna Malouf Peterson, [***] District Judge.

         SUMMARY[****]

         Prisoner Civil Rights

         In four consolidated appeals, the panel affirmed in part and reversed in part the district court's decisions pertaining to qualified immunity for prison officials in actions alleging that inmates at several California state prisons were exposed to a heightened risk of getting Valley Fever.

         Plaintiffs alleged that exposing them to a heightened risk of getting Valley Fever was cruel and unusual punishment in violation of the Eighth Amendment. African-American inmates also added a challenge under the Equal Protection Clause of the Fourteenth Amendment. They alleged that because African-American inmates were particularly likely to get Valley Fever and suffer serious consequences, they should have been segregated from the prisons with the highest infection rates.

         The panel first held that several of the defendants could not be sued at all because they were not personally involved in any alleged violations. The panel then held that in each of the four cases on appeal, state officials were entitled to qualified immunity against claims that they were deliberately indifferent to a substantial risk of serious harm in violation of the Eighth Amendment. The panel held that the specific right that the inmates claimed in these cases-the right to be free from heightened exposure to Valley Fever spores-was not clearly established at the time the officials acted. The panel further held that the cases did not involve "clear" or "obvious" violations given that a federal Receiver supervised the officials' actions, and there was no evidence that society's attitude had evolved to the point that involuntary exposure to such a risk violated current standards of decency.

         The panel held that officials were also entitled to qualified immunity against claims that they racially discriminated against African-American inmates. The panel held that even if state officials should have been more aggressive in excluding inmates whose higher risk appeared to be on account of (or at least connected to) their race, that did not mean their conduct violated clearly established law. The panel concluded that inmates did not have a clearly established right to be segregated from certain Central Valley prisons based on their race.

          OPINION

          KLEINFELD, Senior Circuit Judge.

         Inmates in several California state prisons were exposed to a heightened risk of getting Valley Fever, so they sued state officials for money damages under 42 U.S.C. § 1983. The inmates claim that exposing them to a heightened risk of getting Valley Fever was cruel and unusual punishment in violation of the Eighth Amendment. African-American inmates add a challenge under the Equal Protection Clause of the Fourteenth Amendment. They claim that because African-American inmates were particularly likely to get Valley Fever and suffer serious consequences, they should have been segregated from the prisons with the highest infection rates. In each of the four cases on appeal, we hold that the state officials are entitled to qualified immunity.

         FACTS

         A. The Federal Receiver

         For years, inmates in California state prisons have claimed that the state violates the Eighth Amendment by failing to provide sufficient medical care. Many inmates have sued. In 2002, California signed a consent decree in one such case, Plata v. Davis. As part of that decree, California promised to implement specific procedures to ensure that inmates statewide received constitutionally adequate medical care.[1] But the state did not satisfy the terms of the decree, so in 2006 the Plata district court appointed a federal Receiver.[2]The court conferred on the Receiver "all powers vested by law in the Secretary of the [California Department of Corrections and Rehabilitation] as they relate to the administration, control, management, operation, and financing of the California prison medical health care system."[3] The court concurrently "suspended" the Department of Corrections and Rehabilitation's exercise of those powers "for the duration of the Receivership."[4] The Receiver has filed papers with the Plata district court, and the district court has entered orders to improve medical care.[5]

         Therefore, since 2006, state officials have made decisions about prison medical care while under the control of a federal Receiver, appointed by a federal district court to ensure compliance with the Eighth Amendment. This case challenges how those state officials responded to Valley Fever outbreaks in several prisons in the Central Valley of California, despite the Receiver's control.

         B. Valley Fever

         Valley Fever is a disease caused by inhaling certain fungal spores. The spores, which live in dry soil, are common in much of the southwestern United States. Millions of people live where the spores are common, and tens of thousands of people are infected each year. Two-thirds of infections are reported in Arizona. One-fourth are reported in California. The rest are typically reported in Nevada, Utah, New Mexico, and Texas.[6]

         Once someone has been infected with the fungal spores, they are immune from future infections. But infections affect different people in different ways. About 60% of infected people do not develop any symptoms. Another 30% develop only mild flu-like symptoms (such as fever, cough, rash, headaches, and muscle aches) that usually go away after a few weeks. But around 10% of people develop a severe case of Valley Fever. About 8% of infections lead to a severe respiratory disease. And 1-5% of infections spread from the lungs to other parts of the body, a serious condition known as "disseminated cocci." Patients with disseminated cocci can be effectively treated, but they cannot be cured. Many disseminated cocci patients need expensive treatment for the rest of their lives to prevent their symptoms from recurring. In rare cases, such as when disseminated cocci spread to the brain and are not effectively treated, Valley Fever is fatal.

         Some groups of people have an above-average risk of experiencing severe symptoms or developing disseminated cocci. One risk factor is having an underlying medical condition, such as HIV, diabetes, or heart disease. Another risk factor is being on a medication that suppresses the immune system, such as chemotherapy. Adults over 55 and pregnant women are at a greater risk. Men are more likely than women to develop disseminated cocci. And for unknown reasons, people of African and Filipino descent are several times more likely to develop disseminated cocci than are people of other racial or ethnic backgrounds.

         C. Valley Fever in California Prisons

         In 2005, California prison officials noticed a "significant increase" in the number of Valley Fever cases among prisoners. The federal Receiver asked the California Department of Health Services to investigate the outbreak at Pleasant Valley State Prison, the prison with the highest infection rate. After its investigation, the Department of Health Services issued a report in January 2007. It stated that Pleasant Valley State Prison had 166 Valley Fever infections in 2005, including 29 hospitalizations and four deaths. The infection rate inside the prison was 38 times higher than in the nearby town and 600 times higher than in the surrounding county. According to the report, "the risk for extrapulmonary complications [was] increased for persons of African or Filipino descent, but the risk [was] even higher for heavily immunosuppressed patients." The report then explained that physically removing heavily immunosuppressed patients from the affected area "would be the most effective method to decrease risk." The report also recommended ways to reduce the amount of dust at the prisons. After receiving the health department's recommendations, the Receiver convened its own committee. In June 2007, the Receiver's committee made recommendations that were similar to those from the health department.

         In response, a statewide exclusion policy went into effect in November 2007. The inmates who were "most susceptible to developing severe or disseminated cocci" would be moved from prisons in the Central Valley or not housed there in the first place. The prisons used six clinical criteria to identify which inmates were most likely to die from Valley Fever: "(a) All identified HIV infected inmate patients; (b) History of lymphoma; (c) Status post solid organ transplant; (d) Chronic inmmunosuppressive therapy (e.g. severe rheumatoid arthritis); (e) Moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring ongoing intermittent or continuous oxygen therapy; [and] (f) Inmate-patients with cancer on chemotherapy." Inmates were not excluded from the Central Valley prisons based on race. The Receiver refined the exclusion policy in 2010 and created a list of "inmates who [were] at institutions within the Valley Fever hyperendemic area that [needed] to be transferred out." The record does not indicate that the 2010 policy excluded inmates from the outbreak prisons based on race.

         In April 2012, the prison system's own healthcare services released a report examining Valley Fever in prisons. The report concluded that despite the "education of staff and inmates" and the "exclusion of immunocompromised inmates," there had been "no decrease in cocci rates." The authors found that Pleasant Valley State Prison inmates were still much more likely to contract Valley Fever than citizens of the surrounding county. From 2006 to 2010, 7.01% of inmates at Pleasant Valley State Prison and 1.33% of inmates at Avenal State Prison were infected. By comparison, the highest countywide infection rate was 0.135%, and the statewide rate was just 0.007%. From 2006 to 2011, 36 inmates in the Central Valley prisons died from Valley Fever. Prison healthcare services also found that male African-American inmates were twice as likely to die as other inmates. Each year, about 29% of the male inmates in California are African-American, but 50% of the inmates who developed disseminated cocci between 2010 and 2012 were African-American, and 71% of the inmates who died from Valley Fever between 2006 and 2011 were African-American.

         Following this report, the Receiver issued another exclusion policy-one that would effectively suspend the transfer of African-American and diabetic inmates to the Central Valley prisons.[7] The state objected, [8] but the district court ordered the prisons to comply with the new exclusion policy.[9]

         There are several theories for why Valley Fever was more common inside the Central Valley prisons than in the surrounding areas. One theory is that new construction and excavation stirred up the soil, allowing the breeze to circulate the fungal spores. Many of the prisons were newly constructed or were being expanded during the outbreaks. Pleasant Valley State Prison, which had the highest rate of Valley Fever, was next door to a large construction project. Some prisons did not stop the airflow into their buildings on windy days. The prisons also might be built where there are more fungal spores or where the spores are more virulent.

         Prison demographics were certainly relevant, as inmates were more likely to have certain risk factors. For example, adult males are at greater risk than women and children, and the prisons at issue in this case housed only adult males. African-Americans were also over-represented in the prison population, and they are more likely to develop disseminated cocci.[10] Also, it could be that many prisoners were brought into the Central Valley from places that did not have the fungal spores, meaning that the inmates were not immune to the disease when they arrived at the prisons. By contrast, many civilians in the Central Valley could have been infected when they were young and healthy, and as a result, many civilians might have developed immunity without experiencing severe symptoms.

         Finally, there may be differences in identifying people with Valley Fever. Inmates may be more likely than civilians to seek and obtain medical attention when they are sick. They may know about Valley Fever and request medical attention, while civilians with flu-like symptoms that go away in a few weeks may not. Prison doctors may be more aware of the Valley Fever problem than many doctors or other medical care providers outside the prisons. And it may be that Valley Fever is more widespread among the civilian population than the statistics indicate, because of lower diagnosis rates rather than lower incidence rates among civilians.

         Even though Valley Fever is more common in prisons, it is important to remember that it is not unique to prisons. More than a million people freely live in the Central Valley, and many of them contract Valley Fever each year. Nor is the disease confined to the Central Valley. It occurs throughout the southwestern United States and is especially common in Arizona. Since the prisoners are confined together, it is especially important that Valley Fever is not contagious.

         D. The Cases on Appeal

         There are four cases consolidated on appeal. Each is a suit for money damages brought under 42 U.S.C. § 1983.

         In Smith v. Schwarzenegger, current and former inmates of prisons in the Central Valley who were diagnosed with Valley Fever sued various state officials for Eighth Amendment violations. They alleged that the officials were deliberately indifferent to the inmates' exposure to an unreasonable risk of getting Valley Fever and developing disseminated cocci. The defendants moved to dismiss the complaint under Rule 12(b)(6), claiming that they were entitled to qualified immunity. The district court granted the motion to dismiss. It did not grant leave to amend the complaint. The inmates appeal.

         In Gregge v. Cate, prison doctors diagnosed Gregge with cocci-meningitis while he was incarcerated at Pleasant Valley State Prison. He sued the prison warden and others for violating the Eighth Amendment. As in Smith, the district court dismissed the complaint under Rule 12(b)(6) based on qualified immunity. It did not grant leave to amend. Gregge appeals.

         In Hines v. Youseff, Hines was incarcerated at Corcoran State Prison when he contracted Valley Fever. He brought an Eighth Amendment claim. The officials moved for summary judgment based on qualified immunity. The district court granted that motion and denied leave to amend. Hines appeals.

         And in Jackson v. Brown, inmates at Pleasant Valley State Prison and Avenal State Prison who got Valley Fever sued various officials. The defendants moved for judgment on the pleadings under Rule 12(c). The district court held that the officials were entitled to qualified immunity against the inmates' Eighth Amendment claim. But a subgroup of African-American inmates in Jackson had also alleged that the officials violated the Equal Protection Clause of the Fourteenth Amendment by intentionally failing to protect African-American inmates, whom the officials knew had a heightened risk of developing disseminated cocci. The court held that the officials were not entitled to qualified immunity against the Fourteenth Amendment claim. The officials appeal that decision. The inmates do not appeal the ruling on their Eighth Amendment claim.

         STANDARDS OF REVIEW

         We have jurisdiction over all four appeals.[11] We do not have jurisdiction over the Plata decree, and it is not on appeal. We review whether the officials are entitled to qualified immunity de novo[12] and the denial of leave to amend for abuse of discretion.[13]

         In Smith and Gregge, the district court granted the officials' Rule 12(b)(6) motions to dismiss the complaint. And in Jackson, the district court denied the officials' Rule 12(c) motion for judgment on the pleadings. So for those three appeals, we must accept as true all of the inmates' factual allegations, and we must draw all reasonable inferences in their favor.[14] We must affirm the dismissal of the Smith and Gregge complaints if those complaints do not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."[15] We must reverse the denial of judgment on the pleadings in Jackson if "there is no issue of material fact in dispute" and the officials are "entitled to judgment as a matter of law."[16]

         Hines was decided at the summary judgment stage, not at the pleading stage. We therefore evaluate the grant of summary judgment based on the cognizable evidence. We must affirm the grant of summary judgment if there are no genuine issues of material fact and if, as the district court concluded, the officials are entitled to judgment as a matter of law.[17]

         Despite these different procedural stages and legal tests, the facts alleged in the Smith, Gregge, and Jackson complaints are largely identical to the evidence produced in Hines. Each of the appeals also presents the same basic question: whether the constitutional rights that the officials allegedly violated were "clearly established" when the officials acted. We therefore consider all four appeals together.

         ANALYSIS

         The officials in these cases are entitled to qualified immunity against claims that they were deliberately indifferent to a substantial risk of serious harm in violation of the Eighth Amendment. They are also entitled to qualified immunity against claims that they racially discriminated against African-American inmates. But first, we hold that several of the defendants cannot be sued at all because they were not personally involved in any alleged violations.

         I. Personal Involvement

         The inmates sued the officials under 42 U.S.C. § 1983. That means the inmates must show that each defendant personally played a role in violating the Constitution.[18] An official is liable under ยง 1983 only if "culpable ...


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