United States Court of Appeals For the Ninth Circuit · roach, jay roberts, rodney ray robinson,...

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United States Court of Appeals For the Ninth Circuit

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Smith Ninth Circuit Case No.: 15-17155 Gregge Ninth Circuit Case: 15-17201

SMITH, et al., Smith E.D. No. 1:14-cv-00060-LJO-SAB Appellants, v. SCHWARZENEGGER, et al., Respondents. GREGGE, Gregge E.D. No. 1:15-cv-00176-LJO-SAB Appellant, v. Consolidated Appeal Case No: 15-16145 (Hines) CATE, et al., Consolidated Appeal Case No:

Respondents. 15-17076 (Jackson)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF CALIFORNIA HON. LAWRENCE J. O’NEILL, JUDGE PRESIDING

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SMITH & GREGGE CONSOLIDATED

AMENDED REPLY BRIEF _____________________

LAW OFFICES OF LAW OFFICES OF

. ═══════════ . ═════════════

PAVONE & FONNER, LLP AFFELD GRIVAKES ZUCKER LLP . ═══════════ . ═════════════

BENJAMIN PAVONE, ESQ., SBN 181826 GREGG ZUCKER, ESQ., SBN 166692 TARA BURD, ESQ. SBN 276676 VICTORIA NIEWRZOL, ESQ. , SBN 282889 7676 HAZARD CENTER DRIVE, 5TH FLOOR 2049 CENTURY PARK EAST, SUITE 2460 SAN DIEGO, CALIFORNIA 92108 LOS ANGELES, CALIFORNIA 90067 . TELEPHONE: 619 224 8885 TELEPHONE: 310 979 8700 FACSIMILE: 619 224 8886 FACSIMILE: 310 979 8701 EMAIL: [email protected] ZUCKER EMAIL: [email protected] EMAIL: [email protected] NIEWRZOL EMAIL: [email protected]

Case: 15-17155, 07/24/2016, ID: 10060846, DktEntry: 63, of 132

LAW OFFICES OF

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BURNS & SCHALDENBRAND ══════════

═════════════ DAVID ELLIOT, ESQ. EDWARD BURNS, ESQ., STATE BAR NO. 201913 ═══════════ FREDERIK SPIESS, ESQ., STATE BAR NO. 221421 DAVID ELLIOT, ESQ. 509 NORTH COAST HIGHWAY STATE BAR NO. 270381 OCEANSIDE, CALIFORNIA 92054 1405 MORENA BOULEVARD, STE. 200 TELEPHONE: 760 453 2189 SAN DIEGO, CALIFORNIA 92110 FACSIMILE: 760 453 2194 TELEPHONE: 858 228 7997 BURNS EMAIL: [email protected] FACSIMILE: 480 247 4553 SPIESS EMAIL: [email protected] EMAIL: [email protected] LAW OFFICES OF

═════════════ MATTHEW B. PAVONE, ESQ. ═════════════ MATTHEW B. PAVONE, ESQ. STATE BAR NO. 95964 COURTYARD SQUARE 750 GRANT AVENUE, SUITE 250 NOVATO, CALIFORNIA 94945-7003 TELEPHONE: 415 209 9610 FACSIMILE:415 892 0337 EMAIL: [email protected]

ATTORNEYS FOR APPELLANTS ABDULLE, ABUKAR ADAMS, RICHARD ARECHIGA, RUBEN ARTEAGA, RICHARD AUBREY, DERRICO ATZET, DAVID BAKER, GARLAND BARNETT, DION BEAGLE, FREDERICK BELARDES, DON BESS, JOHN WESLEY BLUE, MICHAEL BOLAND, DANIEL BONDS, CHRISTOPHER BOYD, FLOYD BRACAMONTE, RAY BRUCE, GORDON BURKE, RICHARD BURKS, KEEVAN BUSTAMONTE, JOSEPH CALL, KEVIN CAMPBELL, COREY CAMPOS, RUDOLPH

CARTER, CHARLES CASTANEDA, PABLO CHANEY, CLIFFORD CLARK, OTHA CONLEY, ROBERT COOPER, ALVIN CORLEY, KENNETH CORNETHAN, WALTER CORNING, ROY COX, DAVID CRESWELL, ORLANDO DALLAS, DANNY DEJESUS, JOSEPH DIBBLE, DONALD DICKSON, GERALD DOMINGUEZ, PABLO DONALDSON, ERIC DOSS, ROY DRAPER, JOSH DURAN, JOSEPH DUREE, DENNIS FARR, JAMES FELDER, JEROME

FERRIS, JOSEPH FLOWERS, ALVIN FRANKLIN, STEPHEN GALLOWAY, AUBREY GAMBOA, MANUAL GARNER, CHRIS GARZA, CANDELARIO GHOLAR, JOHN GONZALEZ, ROBERT GRANT, VERNON GREEN, WALTER GREGGE, LORENZO HARRIS, ROBERT HAYNES, HERMAN HERCULES, SINOA HERNANDEZ, CARLOS HILL, BRET HILL, DAMOR HOLLIS, ELLIS HOLLIS, JEREMY IMUTA, SCOTT INFINITY JACKSON, KENJI


JALOTLOT, DANILO JOHNSON, ADRIAN JOHNSON, DANIEL JOHNSON, GEORGE JONES, ANTHONY JONES, EDWARD KERNER, LAWRENCE KLVANA, MILOS KOKLICH, BRUCE LAVEA, TITI LEWIS, ASAD LEWIS, CLEOFAS LEWIS, GEORGE LEWIS, JOE MANNING, MICHAEL MAESHACK, ROBERT MARTINEZ, JUAN MASUSHIGE, DANIEL McCLOUD, ELLIS McDONALD, BRANDON McDONALD, JEFFERY McQUARN, CHARLES MERMEJO, JUAN MEZA, JUAN MILFORD, THOMAS MILLER, DALE MITCHELL, HERSCHEL MOLEN, DANIEL MONTGOMERY, GRADY MOODY, ANDRE MORALES, NOEL

MORROW, MICHAEL NEAL, FREDDY NEWSON, RAYMOND NGOUN, CHECK OCULAR, EMMANUEL PEAV, SIM PENALVA, JUAN PEREZ, JESUS PIERCE, MARVIN PRESTON, ROBERT RAYBURN, HARVEY REYES, JORGE RICHARDSON, PAUL RIPOYLA, RONNIE ROACH, JAY ROBERTS, RODNEY RAY ROBINSON, DAVID RODRIGUEZ, RONALD ROMERO, PETER ROMO, JEREMY RUGGLES, JOHN SAMS, LORENZO SANDERS, TYRONE SANCHEZ, JOHNNY SEPULVADA, ADRIAN SHERROD, ALBERT SMITH, COREY LAMAR SMITH, KIRK SMITH, LEROY SPENCE, EDWARD STEELS, WILLIE

STEWART, TRACY TALAMANTES, HECTOR THOMAS, JOSH THOMAS, LOUIS THOMAS, MAURICE THOMPSON, TYRONE TILLIS, AARON TYLER, ELONZA TORRES-ENOS, JOHN TORRES, ISMAEL UTLEY, VANCE VASQUEZ, SOLOMON VASQUEZ, ROBERTO VILLANUEVA, RENE WALLACE, PATRICK WASHINGTON, KEN WEST, BYRON WESTBROOK, BERT WILEY, THOMAS WILEY, WILLIAM WILLIAMS, DARREN WILLIAMS, RODNEY WILLIAMS, XAVIER WOLTERS, ROBERT WOOD, THEODORE WOODS, WAYNE WRIGHT, DONALD YANCEY, KENNETH and YOUNT, GEORGE


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TABLE OF CONTENTS

Brief/PDF

REPLY INTRODUCTION ......................................................................................... 1/16 STATEMENT OF FACTS ......................................................................................... 4/19 ARGUMENT ................................................................................................................ 5/20 I. THE DISTRICT COURT ERRED BECAUSE DEFENDANTS OBVIOUSLY VIOLATED THE EIGHTH AMENDMENT BY THEIR FAILURE TO PROTECT INMATES FROM AN EPIDEMIC. ....................................................................................................... 5/20 A. The 2015 Wheeler Study Supports Plaintiffs’ Argument that the Danger Was Obvious and Qualified Immunity is Unwarranted. ......................................................................................... 6/21 B. The Medical Officials “Obvious” Distinction is Academic Given that Their Conduct is Also Blameworthy ................................ 8/23

C. The District Judge Erred by Looking to the Holdings of Other Cases Rather than Studying the Facts of this Case ............... 12/27

D. The Lower Court Erred by Construing Contested Facts in Favor of State Officials Instead of Plaintiffs, as Required. ....... 13/28

II. THE DISTRICT COURT ERRED BECAUSE STATE OFFICIALS KNEW TO PROTECT INMATES FROM DISEASES BUT DECLINED ...................................................................................................... 14/29 A. A Toxin’s “Natural” Origin is Immaterial to its Dangerousness ... 14/29 B. Defendants’ Reference to Society’s Acceptance of a Degree Exposure to Valley Fever Proposes a False Comparison given the Relative Contraction Rates ........................................................... 16/31 C. Prison Officials Had Ample Time and Resources to Determine that Protection from Coccidioidomycosis Was Included within the Inmates’ More General Right to Protection from Diseases ...... 17/32


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SMITH/GREGGE REPLY BRIEF – ii

Brief/PDF D. The District Court Erred by Requiring Notice as to

Coccidioidomycosis Specifically ....................................................... 19/34

III. THE DISTRICT COURT ERRED BECAUSE NO PRIOR COCCIDIOIDOMYCOSIS CASE WAS NECESSARY. OFFICIALS HAD ADEQUATE NOTICE FROM EXISTING LAW TO PROTECT INMATES FROM THIS DISEASE ....................... 21/36 A. The Contours of the Constitutional Right To Protection from a Disease like Coccidioidomycosis Were Sufficiently Clear ................................................................................. 21/36 B. Guidance About How To Handle The Coccidioidomycosis Epidemic Was Manifestly Included within More General Applications of the Core Constitutional Principle of Protecting Inmates From Diseases ........................................................................ 22/37 C. Officials Had Fair Warning That They Were Violating the Inmates’ Constitutional Rights ................................... 22/37 1. Defendants Read Helling Too Narrowly ................................ 22/37

2. State Officials Cannot Escape Liability under Qualified Immunity by Quarrelling over the Exact Application of

the Helling Standard in the Context of an Epidemic ............ 24/39

3. Fair Warning May Come From Sources Other than Published Case Law .............................................. 28/43

IV. EVEN IF THE LAW HAD TO BE ESTABLISHED WITH RESPECT TO COCCIDIOIDOMYCOSIS SPECIFICALLY, THE DISTRICT JUDGE ERRED BY NOT CREDITING NINTH CIRCUIT OPINIONS THAT REMINDED DEFENDANTS THAT THE LAW WAS ESTABLISHED .............................................................................................. 29/44 A. The Lenoir Smith and Johnson Opinions from this Court Affirmed that Exposure to Diseases, including Coccidioidomycosis, Are Governed by Helling ............................... 29/44


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SMITH/GREGGE REPLY BRIEF – iii

Brief/PDF B. The District Judge Previously Ruled that Lenoir Smith and Johnson Established the Law Clearly Enough to Put Him on Notice that Coccidioidomycosis Plaintiffs Could State a Claim; if so, the Law Was Clear Enough to Put Defendants on Notice ............................................................................................... 31/46 V. A CONSENSUS OF DISTRICT COURT CASES ESTABLISHED THAT A COCCI CLAIM WAS COGNIZABLE. THE DISTRICT COURT ERRED BY HOLDING OTHERWISE ....................................... 31/46 A. The District Court Opinions Recognized Coccidioidomycosis as a Cognizable Claim If Pled Properly ............................................ 31/46 VI. IF THE QUALIFIED IMMUNITY ARGUMENT IS OVERTURNED, THE MOTION TO AMEND TO ADD TILTON AND SILLEN SHOULD BE REVERSED ................................................. 33/48 VII. MR. GREGGE’S DISMISSAL ON QUALIFIED IMMUNITY SHOULD BE OVERTURNED BECAUSE OFFICIALS WERE AWARE OF THE EPIDEMIC WELL BEFORE HE ARRIVED AT PVSP .......................................................................................................... 33/48 VIII. GREGGE PLED ADEQUATE FACTUAL DETAIL TO ESTABLISH WARDEN YATES’ KNOWLEDGE AND PERSONAL PARTICIPATION ................................................................... 34/49

A. Gregge’s Allegations against Warden Yates .................................... 34/49

B. Leave to Amend Was Incorrectly Denied ......................................... 35/50

IX. PLAINTIFFS PLED SUFFICIENT DETAIL TO ESTABLISH EACH DEFENDANT’S PERSONAL PARTICIPATION. ..................... 36/51 A. Sufficient Information Was Pled to Infer Knowledge by All Defendants .................................................. 36/51 B. Plaintiffs Pled Sufficient Information to Infer Personal Participation or Establish Supervisory Liability within Established Precedent .......................................................................... 39/54 CONCLUSION .......................................................................................................... 40/55


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SMITH/GREGGE REPLY BRIEF – iv

PDF

APPENDIX C – Incidence Rate Tables: State, Prison and County Comparisons .................................................. 58 Table 1 – Prison/County/State Comparative Incidence Rates ........................... 59 Table 2 – State Incidence Rates/Population 2003-2012 ...................................... 60 Table 3 – County Incidence Rates/Population 2003-2012 .................................. 61 Table 3A – Combined County Incidence Rates/Population 2003-2012 ............ 62 Table 4A – PVSP Incidence Rates/Population 2003-2012 ................................. 63 Table 4B – ASP Incidence Rates/Population 2003-2012 .................................... 64 Table 4C – PVSP/ASP Combined Incidence Rates/Population 2003-2012 ..... 65 Table 4D – ASP 2012 Extrapolation w/Chart 4D ................................................ 66 APPENDIX D - Summary of Allegations in Complaint, by Defendant ................. 68 Beard, Jeffrey ........................................................................................................... 69 Brazelton, Paul .......................................................................................................... 72 Cate, Matthew ........................................................................................................... 75 Hartley, James ........................................................................................................... 79 Hubbard, Susan ......................................................................................................... 82 Hysen, Deborah ........................................................................................................ 86 Igbinosa, Felix .......................................................................................................... 89 Kernan, Scott ............................................................................................................. 94 Meyer, Chris .............................................................................................................. 98 Rothchild, Tanya ................................................................................................... 101 Schwarzenegger, Arnold ....................................................................................... 104


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SMITH/GREGGE REPLY BRIEF – v

Schwartz, Teresa ..................................................................................................... 108 Winslow, Dwight .................................................................................................... 112 Yates, James ............................................................................................................ 115 APPENDIX E – List of Pro Per VF Cases ................................................................. 118 2006 Cases ............................................................................................................. 119 2007 Cases ............................................................................................................. 119 2008 Cases ............................................................................................................. 120 2009 Cases ............................................................................................................. 121 2010 Cases ............................................................................................................. 122 2011 Cases ............................................................................................................. 124 2012 Cases ............................................................................................................. 124 2013 Cases ............................................................................................................. 125


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SMITH/GREGGE REPLY BRIEF – vi

TABLE OF AUTHORITIES Cases

Brief Page Anderson v. Creighton 483 U.S. 635 (1987) ......................................................................................... 19 Ashcroft v. al-Kidd 131 S.Ct. 2074 (2011) .................................................................... 12, 17-18, 26 Ashcroft v. Iqbal 556 U.S. 662 (2009) ......................................................................................... 31 Ball v. LeBlanc 792 F.3d 584 (5th Cir.2015) ............................................................................ 15 Barkes v. First Medical 766 F.3d 307 (3rd Cir.2014) ............................................................................ 19 Barnhardt v. Tilton 2009 WL 56004 Civ.No. 1:07-CV-539 (E.D.Cal. January 7, 2009) .......................................... 32 Beanal v. Freeport 197 F.3d 161 (5th Cir.1999) ............................................................................ 36 Blankenhorn v. Orange, 485 F.3d 463 (9th Cir.2007) .............................................................................. 3 Blanton v. Womancare, 38 Cal.3d 396 (1985) ....................................................................................... 37 Board v. Farnham 394 F.3d 469 (7th Cir.2005) ............................................................................ 23 Boyd v. Benton 374 F.3d 773 (9th Cir. 2004) ........................................................................... 23 Brigaerts v. Cardoza 952 F.2d 1399 (9th Cir. 1992) ......................................................................... 33 Brown v. Mitchell 327 F.Supp.2d 615 (E.D.Va.2004) .................................................................. 22 Castro v. Los Angeles 797 F.3d 654 (9th Cir.2015) ...................................................................... 16, 24


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SMITH/GREGGE REPLY BRIEF – vii

DeShaney v. Winnebago County 489 U.S. 189 (1989) ......................................................................................... 17 DeSpain v. Uphoff 264 F.3d 965 (10th Cir.2001) .......................................................................... 15 Edison v. GEO 822 F.3d 510 (9th Cir.2016) ....................................................................... 7, 25 Estelle v. Gamble 429 U.S. 97, 102 (1976) ................................................................................... 27 Exergen v. Wal–Mart 575 F.3d 1312, 1327 (Fed.Cir.2009) ............................................................... 37 Farmer v. Brennan 511 U.S. 825, 114 S.Ct. 1970 128 L.Ed.2d 811 (1994) ............................................................. 3, 14, 17, 21, 30 Foulds v. Corley 833 F.2d 52 (5th Cir.1987) .............................................................................. 15 Furman v. Georgia 408 U.S. 238, 241 (1972) ........................................................................... 15, 26 Gaston v. Coughlin 249 F.3d 156 (2d Cir.2001) ............................................................................. 15 Gates v. Collier 501 F.2d 1291 (5th Cir.1974) .............................................................. 14-15, 22 Gates v. Cook 376 F.3d 323 (5th Cir.2004) ............................................................................ 15 Gregg v. Georgia 428 U.S. 153 (1976) ......................................................................................... 26 Haines v. Kerner 404 U.S. 519 (1972) ......................................................................................... 34 Hansen v. Black 885 F.2d 642 (9th Cir.1989) ............................................................................ 35 Helling v. McKinney 509 U.S. 25, 113 S.Ct. 2475 125 L.Ed.2d 22 (1993) .............................................................................passim


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SMITH/GREGGE REPLY BRIEF – viii

Hernandez v. Martinez 2016 WL 1408453 Civ.No. 1:10-cv-1064 (E.D.Cal.2016) ............................................................ 19 Hope v. Pelzer 536 U.S. 730 (2002) ..................................................................... 8, 9, 11, 28, 31 Hutto v. Finney 437 U.S. 678 (1978) ............................................................................. 22, 23, 26 In re Cathode Ray Tube 2010 WL 9543295 Civ. No. 07-5944 (N.D.Cal.2010) ................................................................... 36 Jackson v. Duckworth 955 F.2d 21 (7th Cir. 1992) ............................................................................. 15 Jones v. Igbinosa 467 Fed.Appx. 604 (9th Cir.2012) ........................................................... 29-30 Johnson v. Pleasant Valley 505 Fed. App’x 631 ................................................................................... 29-31 Jones v. Los Angeles 802 F.3d 990 (9th Cir.2015) .............................................................................. 9 Karim-Panahi v. Los Angeles Police Dept. 839 F.2d 621 (9th Cir.1988) ............................................................................ 34 Kearney v. Foley and Lardner 2011 WL 1119047 Civ. No. 05-cv-2112 (S.D.Cal.2011) ............................................................... 36 K.H. v. Kumar 122 A.3d 1080 (S.Ct.Pa.2015) ......................................................................... 12 Lacey v. Maricopa County 693 F.3d 896 (9th Cir.2012) ............................................................................ 39 Larez v. Los Angeles 946 F.2d 630 (9th Cir.1991) ............................................................................ 39 Lemire v. CDCR 726 F.3d 1062 (9th Cir.2013) .......................................................................... 39 Lenoir Smith v. Schwarzenegger 393 Fed.App’x 518 (9th Cir. 2010) ........................................................... 29-31


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SMITH/GREGGE REPLY BRIEF – ix

Lucas v. Dept’ of Corr. 66 F.3d 245 (9th Cir.1995) .............................................................................. 35 Manzarek v. St. Paul Fire 519 F.3d 1025 (9th Cir.2008) ............................................................................ 8 Mattos v. Agarano 661 F.3d 433 (9th Cir.2011) .............................................................................. 3 Maurer v. Los Angeles Sheriff's Dept. 691 F.2d 434 (9th Cir.1982) ............................................................................ 34 McGuckin v. Smith 974 F.2d 1050 (9th Cir.1992) .................................................................... 11, 27 Moreno v. Yates Civ. No. 1:07-cv-1404 (E.D.Cal.2007) ..................................................... 11, 38 Moss v. U.S. Secret Service, 711 F.3d 941 (9th Cir.2013) ................................................................ 35, 39, 40 Muhammad v. Turbin 199 F.3d 1332 (9th Cir. 1999) ......................................................................... 33 NLRB. v. Walton 369 U.S. 404 (1962) ........................................................................................ 13 Panah v. United States Civ.No. 2:09-cv-06535 (C.D.Cal.2009) ...................................................... 7, 34 Pearson v. Callahan 555 U.S. 223, 244 (2009) ............................................................................. 3, 17 Plata v. Brown 952 F.Supp.2d 901 (N.D.Cal.2013) 2013 WL 3200587 2013 U.S.Dist.Lexis 90669 Civ. No. C01-1351, Dkt. 2661 ....................................... 3, 25, 27, 28, 34, 37-38 Powers v. Snyder 484 F.3d 929 (7th Cir.2007) ............................................................................ 15 Public Works v. Malone 232 Cal.App.2d 531 (1965) ............................................................................. 38


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Randles v. Hester 2001 WL 1667821 Civ.No. 98-cv-1214 (M.D.Fla.2001) ............................................................... 22 Redman v. County of San Diego 942 F.2d 1435 (9th Cir. 1991) ............................................................. 35, 39-40 Rhodes v. Chapman 452 U.S. 337 (1981) ......................................................................................... 15 Richards v. FDIC 572 Fed.Appx. 499 (9th Cir.2014) .................................................................. 34 Saucier v. Katz 533 U.S. 194, 121 S.Ct. 2151 150 L.Ed.2d 272 (2001) ............................................................................ 17, 21 Schroeder v. Yates Civ. No. 1:10-CV-00433-OWW-GSA PC 2011 WL 23094 (E.D.Cal. 2011) ................................................................... 32 Tolan v. Cotton 572 U.S.__, 134 S.Ct. 1861 Civ. No. 13-551 (2014) ............................................................................. 13, 40 Satterwhite v. Dy 2013 WL 257420 Civ. No. C11-0528 (W.D.Wash.2013) ................................................ 12, 16, 25 Starr v. Baca 652 F.3d 1202 (9th Cir.2011) .............................................................. 35, 39, 40 Taylor v. Barkes 135 S. Ct. 2042 (2015) ................................................................... 17, 21, 24, 31 Taylor v. List 880 F.2d 1040 (9th Cir.1989) .......................................................................... 39 U.S. v. Ortega-Ascanio 376 F.3d 879 (9th Cir.2004) ............................................................................ 13 U.S. v. Pence 410 F.2d 557, 563 (8th Cir.1969) .................................................................... 18 United States v. Lanier 520 U.S. 259 (1997) ........................................................................................... 8


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Watkins v. Oakland 145 F.3d 1087 (9th Cir. 1998) ................................................................... 35, 39 Williams v. Adams 935 F.2d 960 (8th Cir.1991) ............................................................................ 15 Williams v. Griffin 952 F.2d 820 (4th Cir.1991) ............................................................................ 15 Wilson v. Layne 526 U.S. 603 (1999) ......................................................................................... 19 Wilson v. Seiter 501 U.S. 297 (1991) ......................................................................................... 26 Wilson v. Seiter 893 F.2d 861 (6th Cir.1990) ............................................................................ 26 Wright v. McMann 387 F.2d 519 (2d Cir.1967) ....................................................................... 26, 29 Young v. Reynolds Metals 685 F.2d 1091 (9th Cir.1982) ......................................................................... 13 Statutes & Rules CA Pen. Code, § 933.05 .......................................................................................... 38 Civ. Code, § 2356 ................................................................................................... 38 Fed.R.Civ.P. 15(a) ................................................................................................... 35 Fed.R.Civ.P. 9(b) .................................................................................................... 36 Fed.R.App.P 32(a) ................................................................................................... 42 Other Authority Ferry, David “The Fever” Mother Jones, p. 34 (January, 2015) .......................................... 29 Goodyear, Dana “Death Dust,” The New Yorker (January, 2014) ...................................... 16, 29 Granucci “Nor Cruel and Unusual Punishments inflicted: The Original Meaning,” 57 Calif.L.Rev. 839 (1969) ............................................. 15


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SMITH/GREGGE REPLY BRIEF – xii

Teixera, Use of Population Genetics to Assess the Structure of Coccidioides, Emerging Infectious Diseases, Vol. 22, No. 6 (June 2015). ........................................................................................... 24 U.S. Army Medical Department, Office of Medical History, Coccidioidomycosis, Ch. 16 ........................................................................ 7, 28 Wheeler, Rates and Risk Factors for Coccidioidomycosis among Prison Inmates, Emerging Infectious Diseases, Vol. 21, No. 1, January 2015 ............................ 5, 6, 7, 8, 14, 16, 17, 25, 35, 40


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REPLY INTRODUCTION

Government inaction in the face of an epidemic meets and exceeds the definition

of plain incompetence. Defendants here seek not just exoneration for their mistakes

but immunity from suit altogether, by claiming they did not have sufficient notice to

take precautions. Yet, they ignored a stack of health warnings, three unpublished

opinions from this Court, lessons from Helling v.McKinney taught 25 years ago, 30

lawsuits by panicked prisoners, and a uniform body of case law going back to the days

of disco that informed them to protect prisoners from diseases.

Notice is not the problem here; parsimony is.

Defendants claim a difference between naturally-occurring toxins versus man-

made ones. There is none. They argue that because society tolerates some level of

exposure to cocci spores, it tolerates exposure at any level. It does not.

Table 1 below reflects judicially-noticeable rate statistics comparing rates

between PVSP/ASP, their surrounding counties and the state. The data reveals that it

was 10-50 times more dangerous to be inside the subject prisons than to be in the

Central Valley, and 100-500 times more dangerous than the state as a whole. See

Appendix C [Tables 1, 2, 3, 3A, 4A, 4B, 4C, 4D].)

Table 1

Year CA

State Rate/ 100K

Central Valley Rate/ 100K

PVSP-ASP Rate/ 100K

PVSP-ASP/ State Rate

PVSP-ASP/

Central Valley

Severity Action Taken

2003-04 6.7 88.6 936 139x 11x Epidemic None 2005 8 83.5 1822 228x 22x Epidemic None 2006 8.7 107.7 4784 550x 44x Epidemic None 2007 8.2 104.9 3192 389x 30x Epidemic Policy (narrow) 2008 7 71.0 2397 342x 34x Epidemic None 2009 6.7 70.0 3561 531x 51x Epidemic None. 2010 12.4 159.7 4203 338x 26x Epidemic None 2011 14.6 188.7 5306 363x 28x Epidemic “Soil sealant” 2012 11.7 131.3 3412 292x 26x Epidemic None


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SMITH/GREGGE REPLY BRIEF – 2

Showing the raw rates from Columns 2-4 above:

RATE/100K

Thus, to validate the State’s “society” argument, this Court would have to agree

that the Central Valley population would accept a risk of contracting

coccidioidomycosis if residents were 10-50 times more likely to contract it – if,

effectively, they would be willing to live on the blue line in PVSP/ASP’s epidemic.1

State officials contend more generally that they were not given specific enough

guidance from the courts in terms of how to handle the matter.2 Yet, it is not the

courts’ function to micromanage safe prison practices. Officials were liberally

1 These events have been described as an “epidemic” by the California Department of Health (RJN 39), Judge Henderson (RJN 274) and the New York Times (RJN 93). There was an epidemic formally declared in Kern County in 1990, when rates reached 572/100K. Rates at PVSP/ASP were 2-20 times higher. See Appendix C, Tables 4A, 4B. 2 “DAB” refers Dr. Winslow and Dr. Igbinosa’s Answering Brief, the “medical officials.” The remaining defendants are identified as the “prison officials” and “SAB” for State’s Answering Brief. When reference is to all Defendants, Plaintiffs use the term “Defendants,” “officials,” or “state officials.”

0

1000

2000

3000

4000

5000

6000

2004 2005 2006 2007 2008 2009 2010 2011 2012

PVSP/ASP

County

State


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provided health warnings, scientific reports and professional recommendations to

guide them.

Notice is not the problem in this situation. State prison authorities have been

defying the courts for 15 years on issues relating to inmate health, most prominently in

the Plata action, but not insignificantly with respect to injunctive relief ultimately

obtained in that action relating to this epidemic.

The sheer magnitude of the health risks in this case – and documented physical

consequences, see Appendix B in the opening brief – satisfy all of the various

deferential formulations delineated in the case law that otherwise might insulate

officials based on the doctrine of qualified immunity:

• no reasonable officer could think that inaction in response to what was clearly an epidemic would comply with the 8th Amendment. Pearson v. Callahan, 555 U.S. 223, 244 (2009).

• prison officials had “fair warning” to act over the epidemic’s 10-year course,

given numerous warnings and reports provided to them early on. AOB 24. • officials’ made no “mistake” of law, mistake of fact, or other reasonable mistake

(Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011); Blankenhorn v. Orange, 485 F.3d 463, 471 (9th Cir.2007)). Officials, well aware of the epidemic, nevertheless decided that inmate safety was not a priority. 4 AER 572-581.

• the contours of the Eighth Amendment were “sufficiently clear” to alert every

reasonable state official that protective action was required in response to the spread of disease at this pace, given explanatory standards stated in the Helling and Farmer opinions;

• the volitional refusal to take any serious, precautionary action in light of the magnitude of this danger cannot be classified as anything but “plain incompetence.” Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011); and • prison officials “knowingly” violated the Eighth Amendment by exposing

inmates to cruel and unusual punishment, given their intentional decision to subject mass numbers of prisoners to what is an indisputably serious respiratory disease. 4 AER 585-586.

No matter how many iterations of analysis may emanate from the original

principles undergirding the qualified immunity doctrine, no deferential standard will


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ever so abrogate principles of responsible penology as to validate the decision of prison

officials to ignore an epidemic.

STATEMENT OF FACTS

A Statement of Facts was set forth in the opening brief. Plaintiffs note a few

undisputed matters.

Neither the prison officials nor the medical officials dispute that for over 50

years, employers in the area have taken precautions for people working in the area.

State officials did not.

There is no dispute that rates started climbing as early as 2003 and that the 2004

Kanan memo alerted officials about the severity of the problem. Defendants do not

dispute that they were provided a litany of warnings in relation to the epidemic. There

is no debate that construction of the state hospital next to PVSP aggravated the

situation and partly explains the spike of infections. There is no challenge to the fact

that rates at PVSP peaked at 1000 times the broader California state rate, 600 times the

rate of Fresno County and 38 times the City of Coalinga.

They do not deny that a wave of inmate lawsuits were filed complaining of

unlawful contraction prior to the initiation of the instant litigation. See Appendix E.

They do not deny that the district court did not seriously consider the facts of

this case in making his rulings, instead deferring to the holdings of other district courts

in other valley fever cases, which were uniformly pled by unsophisticated litigants.

In terms of the disease’s seriousness, no one denies that the disease is incurable.

The medical officials do not dispute that coccidioidomycosis is serious and prison

officials have twice admitted as much. Neither challenges that mitigation requires

powerful anti-fungal drugs, with significant side effects.

There is no debate that expert recommendations included spending $750,000 to

install ground cover, which was found to work well in a study for the military in the

1940’s, but was declined by PVSP’s warden, James Yates, citing cost. Instead, the

state spent $23M/year treating the infections.


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The medical officials do not dispute the stunning incidence rates. No one denies

knowledge of the extraordinary rates by 2006.

No one comments on Plaintiffs’ observation that both lower court judges

reversed their own positions on this issue only after being confronted with the

magnitude of Plaintiffs’ effort, an eyebrow-raising concern. Nor do they contradict

Plaintiffs’ claim that prison officials had systems and procedures in place to easily

reroute vulnerable inmates, but never displayed any initiative to do so.

For these reasons, there is no satisfying objection to the inmates’ arguments.

Rather, the defense is fundamentally premised on assertions relating to notice, by citing

various linguistic formulations of the qualified immunity doctrine. However, few civil

rights cases have ever seen as much notice as this one, in terms of reports, warnings

and recommendations. Again, the dynamic here was not ignorance, but defiance.

Defendants’ suggestion that the courts must encounter every particular disease

and publish a case on it before there will be accountability contradicts a mountain of

authority establishing that prison officials must protect inmates against all recognized

categories of danger, including diseases.

ARGUMENT I.

THE DISTRICT COURT ERRED BECAUSE DEFENDANTS OBVIOUSLY VIOLATED THE EIGHTH AMENDMENT BY THEIR FAILURE TO PROTECT INMATES FROM AN EPIDEMIC.

In the opening brief, the inmates argued that the danger in this case was obvious

and that this satisfied the clearly established test. AOB 13. The officials offer three

responses: (i) they cite the recent Wheeler study to argue that the danger was not

obvious; (ii) they argue that because the study debates the cause for the increased

incidence rates, officials cannot be charged with knowing how to act in response to

such mysterious danger; and (iii) the medical officials argue that plaintiffs have zeroed

in on the obviousness of the danger when the true inquiry is whether their conduct was

obviously illegal.


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The Wheeler study favors Plaintiffs; there can be no serious debate that

precautions should have been taken; and the medical officials’ linguistic distinction

does not assist them on this record. A. The 2015 Wheeler Study Supports the Inmates’ Argument that the Danger Was Obvious and Qualified Immunity is Unwarranted.

Two California Department of Health researchers, Drs. Wheeler and Mohle-

Boetani respectively, authored a study in 2015 trying to better understand the

contraction dynamics at PVSP and ASP. Wheeler, Rates and Risk Factors for

Coccidioidomycosis among Prison Inmates, Emerging Infectious Diseases, Vol. 21,

No. 1 (January 2015) (RJN 295, Ex. 86). Based on studying a sizeable 2011

population sample, they made a number of important findings touching upon the state

official’s knowledge and blameworthiness for the epidemic in question:

1) Combining the two populations, for the year 2011 the rate at PVSP and ASP is 363x the broader contraction rate in California.3 RJN 297 [Ex. 86, p. 72].

2) The study dispatches the state’s claim that the reason for the higher rates is because the state systematically tests for VF. RJN 298 [Ex. 86, p.73].

3) The study rejects another of the state’s theories, to wit, that the high turnover rate at the prisons, compared to an otherwise fixed local

population, was to blame for the high incidence rates. RJN 298 [Ex. 86, p.73].

4) The study defines “severe coccidioidomycosis” as hospitalization over

10 days, which places many Plaintiffs before the Court into this category RJN 296 [Ex. 86, p.71].

5) The study confirms that age is a significant vulnerability factor, with African Americans being susceptible at 40, while Hispanics are considered susceptible at 55 (at more than twice the risk of white persons). RJN 298 [Ex. 86, p.73]. African-Americans also suffer

3 As reported for 2011 (and which requires a calculation), the rate at PVSP was 475x the state rate (see Appendix C, Tables 1, 4A), and the rate at ASP was 260x, respectively (see Appendix C, Tables 1, 4B).


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dissemination more frequently. RJN 299 [Ex. 86, p.74].

6) Another key argument by the officials is that the number of persons suffering severe effects is low. The study finds, in contrast,

that about 20% of the afflicted inmates are either defined as having severe cases or have suffered dissemination. RJN 298 [Ex. 86, p.73].

7) The study finds that the specific cities where the prisons are located have

significantly higher rates than the surrounding areas, which partly explains why the rates at these specific prisons are much higher relative to the larger county population. RJN 298 [Ex. 86, p.73].

8) The study corroborates a contention by the inmates, that because they

are largely not from the local area, and thus have no innate immunity, they are more susceptible to contraction. RJN 299 [Ex. 86, p.74].4

With these findings in mind, the officials’ contention that the danger was not

obvious is untenable. The combined rate of 363x the larger California rate exceeds

acceptable standards by several orders of magnitude. This Court recently confirmed

that rates were considered “epidemic” at Taft prison; the rate there was “only” about

285x the California rate. Edison v. Geo, 822 F.3d 510, 514-515 (9th Cir.2016); see

Panah v. United States, Civ.No. 2:09-cv-06535, Dkt. 23:44 (C.D.Cal.2009); RJN 320,

Ex. 90 [Burwell study].

Prison officials seize on the finding that an explanatory factor for the high rates is

the particular city where the subject prisons are located. SAB 39; Wheeler, 73 [RJN

208, Ex. 86]. True, Coalinga and Avenal’s rates are much higher than their

surrounding counties. But as an argument for inaction, this is like saying that officials

can ignore inmates housed in an area where radiation levels have spiked because they

don’t know exactly where the melted reactor is.

The officials also contend that they should not be charged with seeing race or

ethnicity as a risk factor since medical researchers are still studying the exact

4 Smith, Charles, U.S. Army Medical Department, Office of Medical History, Ch. 16, p. 297-99, RJN 302 (“Studies completed just before World War II indicated that a very high infection rate occurs among newcomers to endemic areas.”).


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correlation between the two. SAB 40. But the Wheeler study observes that more

serious consequences to African Americans were chronicled as early as 1945, and that

elevated risk as to them is widely accepted by the scientific community. Wheeler, RJN

299 [Ex. 86, p.74]. Thus, Wheeler affirms, and builds on, what is already established.

Wheeler, RJN 299 [Ex. 86 p.74]; 4 AER 579-581.

In any event, even if the study were unhelpful to Plaintiffs – it is the opposite – it

would not be appropriate for this Court to affirm a 12(b)(6) ruling based on a single

source of expert input, tendered after the motion was decided in the trial court, and

prioritized over the allegations of the complaint. Manzarek v. St. Paul Fire, 519 F.3d

1025, 1031 (9th Cir.2008).

Along with the rampant incidence rates documented by multiple studies including

Wheeler, the officials’ reliance on this study as a basis to justify qualified immunity

should be respectfully declined.

B. The Medical Officials “Obvious” Distinction is Academic Given that Their Conduct is Also Blameworthy.

The medical officials dispute Plaintiffs’ contention about obvious danger. They

assert that the inmates have mistakenly analyzed this issue by asking whether the

danger was “obvious” rather than whether the officials’ conduct was “obviously

illegal.” DAB 9, 13-14.

Obvious danger is a recognized criterion for denying officials qualified

immunity. Hope v. Pelzer, 536 U.S. 730, 741-742 (2002). In Hope, a prisoner had

been handcuffed to a hitching post and left to suffer for seven hours in the sun. The

Court found an obvious 8th Amendment violation. Id. at 738. It then turned to

qualified immunity. It cited United States v. Lanier, 520 U.S. 259 (1997) for the

proposition that officials can still be on notice in novel circumstances if they have fair

warning based on established principles. Hope, at 741. Hope cited the established 8th

Amendment principle prohibiting unnecessary and wantonly-inflicted pain.

“Arguably, the violation was so obvious that our own Eighth Amendment cases gave


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respondents fair warning that their conduct violated the Constitution.” Hope, 741.

Thus, in Hope, obvious danger emanating from extended sun exposure drove a finding

that the officials’ immunity defense was not meritorious.

But other parts of the Hope opinion make room for an assessment of the official’s

blameworthiness. Linguistically, the case be read as asking whether the “violation” is

obvious. Nonetheless, the inmates’ argument spoke to this issue by contrasting the

danger with the officials’ conduct, specifically, their lack of response. AOB 14. Thus,

like Hope, this case presents a situation where the harm to the prisoner can be weighed

in light of the justification by officials. Hope, at 745-746. There, the Court concluded

that “obvious cruelty” provided sufficient notice to establish fair warning. So too here,

the gravity of the harm at issue, a serious disease contracted on a mass basis, coupled

with almost total inaction on the part of prison officials, exceeds Hope’s overall moral-

blameworthiness calculus.

A further review of the doctrine suggests that when the important elements

providing warning are obvious – Hope’s cruelty or obviously coercive tactics as seen in

Jones v. Los Angeles – officials are not entitled to qualified immunity. Jones v. Los

Angeles, 802 F.3d 990, 1005 (9th Cir.2015) (coercing medical consent to investigate

child abuse charges).

The medical officials quarrel with this conclusion as to them. They claim that

their conduct was the opposite of deliberate indifference. DAB 26-30. They cite the

fact that Dr. Winslow authored a manual about the disease and that he issued two

subsequent memorandums in June, 2007 and November 2007 suggesting ways to

reduce the incidence rate. DAB, 27-28.

Dr. Winslow’s recommendations are essentially irrelevant window dressing

relative to the dramatically more impactful policy memorandum he authored excluding


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but a tiny portion of ultra-susceptible inmates. See 4 AER 782-783; RJN 85.5 He is

akin to the chief fire fighter suggesting water to fight the fire, while declining to send

men in to rescue the family inside the burning house. An inference of deliberate

indifference can be drawn toward the charred family, no matter how many water

memos he wrote.

Furthermore, to relieve Dr. Winslow at this stage will create an unfair vacuum of

responsibility in any subsequent trial. If there is going to be finger pointing among the

defendants – there already is to a degree – the courts should require the most central

decision maker, Dr. Winslow, to explain to a jury why he decided to only save a select

few. And it should let the remaining defendants blame him in front of that jury before

any judgment is made as to whether Winslow acted with deliberate indifference. Dr.

Winslow wrote the fateful policy memo that set the course for the state’s tragic lack of

response to this epidemic. It is in no way appropriate for him to be exonerated in a

summary fashion within a 12(b)(6) motion on qualified immunity.

The defense for Dr. Igbinosa reflects blame directed at Dr. Winslow:

“Plaintiffs did not allege that [Dr. Igbinosa] was responsible for or

had any control over the policy of housing high risk inmates at PVSP

or any other institution.[6] Even assuming Plaintiffs’ allegations are

true and that Dr. Igbinosa failed to act, it would not be clearly

obvious that a CMO’s failure to unilaterally create his own transfer

policy to deal with Valley Fever, and ignore state housing and

5 The policy creates narrow exceptions: HIV-infected inmates, post-organ-transplant patients and four other categories reflecting rare medical scenarios. 4 AER 580; RJN 86 [Ex. 64]; RJN 258-259 [Ex. 82]. As one official observed to an inmate, staff interpreted these exceptions as effectively requiring the inmate to be ‘walking around with an oxygen tank.’ See 4 AER 744; RJN 259, 86 [criterion e].

6 Actually, Plaintiffs did allege this. 4 AER 762, 764 [¶¶ 2152, 2158, 2159].


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transfer guidelines would be unlawful given the context of the

allegations.” SAB 29.

In other words, Dr. Igbinosa was just following Dr. Winslow’s orders.

Yet, Dr. Igbinosa oversaw thousands of inmates contract the disease at PVSP

(where he was chief medical officer), watched them suffer the frightening interruption

of their ability to breathe, become marred with lesions, experience dissemination,

undergo organ failure, deal with the side-effects of fluconazole, numerous deaths, and

witnessed many relegated to some deteriorated physical fraction of a man. See AOB,

Appendix B.

Igbinosa argues that his blameworthiness is less than that of the officials in Hope,

the hitching post, sun exposure case. SAB 29-30. He cannot be serious. The hitching

post inmate suffered a bad day. The 270 coccidioidomycosis victims before this Court,

and thousands more that contracted the disease on his watch, are facing expensive

medical costs, periodic hospitalizations, prolonged suffering, disfigurement, organ

compromise, and premature death.7

The Court should not summarily validate Dr. Iginbinosa’s Nuremberg defense.

His conduct is as inexcusable as the decisions of the policy makers: he was at ground

zero of the epidemic watching the horror show from the front row, yet he did nothing

to stop it. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992) (inaction in the

face of another’s injury suggests callousness).

The precise reason given for his decision amounts to a cynical interpretation of

his role as CMO, by limiting his perceived function to treating the resulting infections

rather than making any preventative effort. See Moreno v. Yates, Civ.No. 1:07-cv-

01404-DGC, Dkt. 30-5, ¶¶ 21-26 (E.D.Cal.2007) [RJN 146, Ex. 69].

The Hippocratic Oath requires a doctor to swear that:

7 There are 160 appellants before the Court. Another 110 inmates in subsequent filings have now entered stipulated stays halting their lawsuits pending this Court’s decision. See AOB, p. 4; see, e.g., Birge v. Schwarzenegger, 1:15-cv-1901-LJO-SAB, Dkt. 20-21.


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“I WILL PREVENT DISEASE WHENEVER I CAN, FOR PREVENTION IS PREFERABLE TO CURE.”

See K.H. v. Kumar, 122 A.3d 1080, 1111 (S.Ct.Pa.2015).

Thus, Dr. Igbinosa is not only invoking discredited theories of blame, but he

basically abandoned his oath as a doctor when he chose treatment over prevention.

Ultimately, both doctors are centrally responsible for this mass tort and should be

held to account at trial.8

C. The District Judge Erred by Looking to the Holdings of Other Cases Rather than Studying the Facts of this Case.

Plaintiffs argued that the district court mistakenly looked to other cases in

characterizing them as unsettled instead of perusing the facts before it, and it invoked

the wrong standard by noting at one point that the violation had to be “overwhelmingly

obvious.” AOB 22, 25, 28; 1 AER 11; see, e.g. Satterwhite v. Dy, 2013 WL 257420,

*11, Civ. No. C11-0528 (W.D.Wash.2013) (studying facts of the case).

The inmates’ contention that the trial court improperly looked to the conclusions

of other cases rather than analyzing the facts of this case as pled is undisputed.9 This

8 The medical officials also seek protection under the umbrella of “mistaken judgments.” DAB 31, citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2090 (2011). Neither doctor admits to making any mistake. Neither claims to have had inadequate information about the nature or severity of the disease, nor claims he was unaware of its epidemic proportions. No conclusion at the appellate level can be drawn based on this unsupported showing. As to Dr. Igbinosa specifically, the just-following-orders defense is used as a justification for a volitional decision (to follow orders), and cannot be considered a mistake. See Moody v. Proctor, 986 F.2d 239, 242 (8th Cir. 1993), citing Little v. Barreme, 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804); Nugesie v. Holder, 555 U.S. 511, 526 (2015); see RJN 146 (Ex 69).


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was a significant error in the district court’s approach. It is akin to citing a series of

cases all involving a single wasp inside one’s office to conclude there is no major

danger for a case involving a swarm of wasps. When a trial court misapplies the law,

reversal is warranted. Young v. Reynolds Metals, 685 F.2d 1091, 1092-1093 (9th

Cir.1982); NLRB. v. Walton, 369 U.S. 404, 410 (1962); Tolan v. Cotton, 134 S.Ct.

1861, 1868 (2014).

The medical officials minimize the district court’s linguistic mistake in requiring

“overwhelmingly obvious” danger (DAB 30-31), but the court did in fact fail to clearly

articulate the correct standard for deciding the Plaintiffs’ primary argument in this

appeal. 1 AER 17; AOB 15-16; U.S. v. Ortega-Ascanio, 376 F.3d 879, 884-885 (2004). D. The Lower Court Erred by Construing Contested Facts in Favor of State Officials Instead of Plaintiffs, as Required.

Plaintiffs argued that the lower court improperly adopted contested facts in

Defendants’ favor, in violation of Tolan v. Cotton. AOB 25, 17 fn.3; Tolan v. Cotton,

572 U.S. –, 134 S.Ct. 1861, 1866-1867 (2014). In particular, the court asserted that the

incidence rate in the San Joaquin Valley was effectively the same as at the prisons, a

factual premise to finding that society accepts exposure to coccidioidomycosis. 1 AER

18, 67, 73.

Plaintiffs pled to the contrary. 4 AER 577 [¶ 71]; 4 AER 575 [¶ 59]; 4 AER 576

[¶¶ 64, 66]; 4 AER 565 [¶ 10]. They have also submitted detailed judicially-noticeable

data herein to contradict a comparison of the rates. See Appendix C. Plaintiffs also

alleged that they were more susceptible than local residents, both because of their lack

9 The medical officials quip “that Plaintiffs now want the Court to ignore certain facts from their own pleadings.” DAB 21. They are suggesting that because Plaintiffs mentioned in the complaint that cocci spores are naturally occurring, it is a valid distinction to draw. The reference in the complaint was to establish the background and origin of the disease, not to create a distinction between natural and man-made dangers. 4 AER 569 [¶ 37]. Regardless, it is not a response to the argument that the district court relied on the wrong input in deciding whether this case presented an obvious 8th Amendment violation.


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of innate immunity and their racial makeup, twin beliefs now corroborated by the

Wheeler study. 4 AER 579-581; Wheeler, pp. 74 [RJN 299, Ex. 86]. For these further

reasons, the society argument is unmeritorious. II.

THE DISTRICT COURT ERRED BECAUSE PRISON OFFICIALS KNEW TO PROTECT INMATES FROM DISEASES BUT DECLINED.

In the opening brief, Plaintiffs set forth the two-step structure of the qualified

immunity analysis and argued that since the district court conceded the first step, the

issue revolved around the “clearly established” test in the second. AOB 16-21. In

particular, Plaintiffs argued that for decisions allowing for time to deliberate, the

deference to law enforcement should be lessened. AOB 16-17.

Defendants respond by first taking issue with the question of whether there was

a constitutional violation at all, by drawing a distinction between man-made dangers

and naturally occurring ones, and by claiming that society accepts the risk of exposure

to cocci spores in the Central Valley.

A. A Toxin’s “Natural” Origin is Immaterial to its Dangerousness.

Both the prison officials and the medical officials repeatedly insist that there is

no constitutional violation in the first instance, because the health risks in this case

arise from a “natural” disease as opposed to a man-made phenomenon. SAB 10, 19, 31;

DAB 9, 20. They rely on a single citation: the Magistrate Judge’s finding. SAB 10,

citing 1 AER 81. The Magistrate argued that it was not beyond debate that housing

inmates in areas endemic for the disease, a “naturally occurring soil-borne fungus,”

would violate the prisoners’ 8th Amendment rights. 1 AER 81. Defendants do not

identify any other authority to support this distinction.

It is settled that a prison official may be held liable under the Eighth Amendment

for exposing a prisoner to any dangerous environmental condition – indeed any

“inhumane condition” at all – natural or unnatural, hot or cold, big or small, solid,

liquid or aerosol. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d

811 (1994); Gates v. Collier, 501 F.2d 1291, 1300-03 (5th Cir.1974) (listing dangers);


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see Furman v. Georgia, 408 U.S. 238, 244-245 (1972) (history of cruel and unusual

punishment); Granucci, “Nor Cruel and Unusual Punishments inflicted: The Original

Meaning,” 57 Calif.L.Rev. 839, 857-860 (1969).

This includes diseases. Powers v. Snyder, 484 F.3d 929, 931 (7th Cir.2007);

Gates v. Collier, 501 F.2d 1291, 1300-03 (5th Cir.1974) (cited with approval in Rhodes

v. Chapman, 452 U.S. 337, 352 n. 17 (1981)).

Thus, the “natural” character of a disease is an illusory distinction – a toxin can

be dangerous to prisoners regardless of its organic or inorganic origin. The idea of

even trying to classify toxins or diseases as natural or man-made proposes a difficult

debate. Ultimately, all things on the earth are made of its elements, and in this sense,

all things are fundamentally “natural.”

Numerous authorities have found constitutional violations from risks that are

clearly natural, even where the risk is prevalent in the surrounding area. Arizona and

Louisiana experience high temperatures in the summer, but excessive heat exposure

still triggers constitutional scrutiny. Graves v. Arpaio, 623 F.3d 1043, 1049 (9th

Cir.2010); Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir.2015). The Gates court cited a

laundry list of unsanitary conditions, without considering their organic source, finding

8th Amendment principles applied to all “general conditions of confinement.” Gates, at

1300-1301.10

Although the microorganism that causes coccidioidomycosis occurs naturally, so

too are the ones that cause tuberculosis and Ebola. No one would suggest that prison

10 See also Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir.2004) (human waste, mosquitos); DeSpain v. Uphoff, 264 F.3d 965, 977 (10th Cir.2001) (flooding); Williams v. Adams, 935 F.2d 960, 962 (8th Cir.1991) (unsanitary conditions); Gaston v. Coughlin, 249 F.3d 156, 165-166 (2d Cir.2001) (sewage, cold); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992) (numerous); Williams v. Griffin, 952 F.2d 820, 825 (4th Cir.1991) (various unsanitary conditions); Foulds v. Corley, 833 F.2d 52, 54 (5th Cir.1987) (rats, cold, unsanitary).


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officials may ignore these other mortal threats. See, e.g., Satterwhite v. Dy, 2013 WL

257420, *10-11, Civ. No. C11-0528 (W.D.Wash.2013).

In all, the natural or man-made origins of a substance make no moral, legal or

medical difference for purposes of enforcing the duties of prison officials to protect

prisoners from danger in light of 8th Amendment jurisprudence. B. Defendants’ Reference to Society’s Acceptance of a Degree

Exposure to Valley Fever Proposes a False Comparison given the Relative Contraction Rates.

Both the prison officials and the doctors insist that since society accepts some

amount of exposure to the risk of contracting coccidioidomycosis, as evidenced by the

fact that a million people live in the Central Valley, prisoners must accept all risk. SAB

19, 29, 32-33, 38-39; DAB 22, 26. As discussed above, this point proposes a fallacy of

degree. The risk of exposure in the prisons is more than an order of magnitude higher

than the risk in the Central Valley. See Table 1, supra; Appendix C.11 Furthermore,

prisoners are at higher risk than residents because they do not enjoy innate immunity

(Wheeler, RJN 299 [Ex. 86, p.74]), did not volunteer for this quantum of risk (see

Table 1), and cannot seek refuge by hiding in protected facilities. Goodyear, “Death

Dust,” The New Yorker (January, 2014).

The officials’ distinction also presents another Castro quarrel -- when a risk of

some harm becomes a substantial risk of serious harm – which this Court has already

decided requires a fact-bound inquiry, inappropriate for summary disposition. Castro v.

Los Angeles, 797 F.3d 654, 668 (9th Cir.2015). But the larger point is that this case

does not present a serious Castro debate: the prisons posed epidemic-level danger and

11 The inmates have constructed the incidence math in Table 1 along with the judicially-noticeable statistics that support it in Appendix C. See Appendix C, Tables 1, 2, 3, 3A, 4A-4C. However, the same information is also pled, albeit with less specificity, in the complaint. See, e.g., 4 AER 577 [¶ 71] (noting that rate at PVSP was 38x that of Fresno County); 4 AER 565 [¶ 10]; 4 AER 575 [¶ 59]; 4 AER 576 [¶¶ 64, 66].


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the surrounding Central Valley does not. Table 1; see Appendix C, Tables 1, 2, 3, 3A,

4A-4C; Wheeler, 73 [RJN 298 [Ex. 86, p.73].

Residents in the Central Valley chose to live there; they can take refuge: they

can purchase air conditioning; and maintain clean ventilation. Local residents are able

to make their own environmental safety calculus based on the benefits they get from

living there. Although prisoners relinquished their freedom by committing crimes,

they did not relinquish the right to live in a safe environment. DeShaney v. Winnebago

County, 489 U.S. 189, 199-200 (1989); Farmer v. Brennan, 511 U.S. 825, 832 (1994);

Pearson v. Callahan, 555 U.S. 223, 231 (2009). The barren, dust-laden prison

grounds, particularly at PVSP, reflect this lack of attention to safety. This sits in

contrast with the well-manicured state hospital next door, which boasts a contraction

rate that is but 1/6 of the prison. 4 AER 578.

For all of these reasons, the complaint here established an 8th Amendment

violation in the first step of a traditional Saucier analysis. 4 AER 811-823.

C. Prison Officials Had Ample Time and Resources to Determine that Protection from Coccidioidomycosis Was Included within the Inmates’ More General Right to Protection from Diseases.

Turning to the second step’s clearly established test, the prisoners questioned the

quantum of deference that should be given to officials’ decisions, in that unlike police

officers who make sometimes make split-second decisions, prison officials here had

the luxury of time, resources and deliberation – years in fact – to make an intelligent

decision. AOB 16-18.

The medical officials disagree. They say Plaintiffs’ argument is a logical fallacy

and contradicts the case law. DAB 14-18. They cite Ashcroft v. al-Kidd and Taylor v.

Barkes, neither involving exigency admittedly, but neither involving courts actually

affording deference to the government’s decision. In Ashcroft, the court scrutinized

former Attorney General Ashcroft’s policy relating to the detention of potential

terrorists. The court declined to decide constitutional wrongs based on his alleged

motives, since the policy he implemented was a matter of legal right. Ashcroft v. al-


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Kidd, 563 U.S. 731, 737 (2011). This case is not informative on the question of

whether there should be less deference to the judgment of an official depending on the

circumstances, because its outcome was not based on a judgment call. The policy was

legal and Ashcroft had a right to enforce it.

In Taylor, the suicide prevention case, the Supreme Court found there was no

obligation for institutions to have such procedures in place. There was no exigency in

that case either. But it involved the death of a single person. This foreclosed the kind

of contemplative hesitation that might occur if the question of protocols unfolded over

years, and after numerous deaths like the situation here. Taylor is therefore also

unhelpful to the officials, given the disparate magnitude of the comparative harms.

Fundamentally, Plaintiffs are respectfully questioning whether the present set of

deferential principles associated with qualified immunity – “every reasonable official,”

“all but the plainly incompetent,” “only those who knowingly violate the law, ‘the issue

must be “beyond debate”’ (principles all denominated in the recent Taylor opinion, at

2044) – make sense where officials have the time and resources to approximate a

decision consistent with the 8th Amendment.12

In a case like this, it is hard to understand why prison officials deserve to be

cloaked with Taylor-like deference. The contours of Taylor exceed any reasonable

buffer to protect officials’ obligation to make judgment calls. Instead, Taylor’s

rhetoric essentially insulates every government official who is not a criminal.

Put differently, if this epidemic unfolded at a Pasadena country club instead of a

state prison, every manager at the club who knew of the problem would probably be

facing felony reckless endangerment charges. But since it was a government official’s

12 Plaintiffs appreciate that there is a set of principles on the other side of the aisle applicable to cases where courts wish to decline immunity. See, e.g., Hernandez v. Martinez, 2016 WL 1408453, *6, Civ.No. 1:10-cv-1064 (E.D.Cal.2016). But acceptance of a system in which dueling postulates are available to cite depending on which outcome is preferable is a disservice to the law. It moves us backwards towards a government of men rather than laws. See U.S. v. Pence, 410 F.2d 557, 563 (8th Cir.1969)


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decision, criminal penalties are unthinkable and they can press for total immunity.

Plaintiffs wonder whether such deference truly reflects thoughtful policy or is one of

those telltale protectionist signs that marks the decline of a government.

The fact is that the qualified immunity doctrine has metastasized in the last 20

years from a doctrine that protect officials from reasonable judgments into a paradigm

by which officials are held to a shockingly-low competency standard.

The medical officials claim recent Supreme Court jurisprudence compels the

breadth of the constitutional right to be examined specifically, thus by definition

affording great deference. DAB 16-17. However, the level of specificity must

necessarily vary depending on the context, as exemplified by the uber-specificity

acknowledged in the analysis of the split-second 4th Amendment cases. Such

observations would be superfluous if the rules did not change for less pressing

situations. Plaintiffs’ only point here is that whatever greater specificity is utilized for

issues involving 4th Amendment split-second decisions, any lessened amount of

deference for a case like this should fall on the opposite end of that spectrum. D. The District Court Erred by Requiring Notice

as to Coccidioidomycosis Specifically.

Plaintiffs argued that the district court erred in two ways in terms of utilizing

an appropriate level of generality in framing the constitutional right: (i) the court

assumed that the level of generality was only an issue to be debated at the first step; (ii)

the court asserted that the correct level of generality at the second step required

reference to coccidioidomycosis in particular. AOB 18-19.

There is no argument within Defendants’ filings that the level of generality is a

debate only within the first step; the second step also clearly involves a question of

generality. Barkes v. First Medical, 766 F.3d 307, 326 (3rd Cir. 2014); Anderson v.

Creighton, 483 U.S. 635, 639 (1987); Wilson v. Layne, 526 U.S. 603, 614 (1999).

The question, then, is whether the correct level of generality requires reference

to the specific toxin, in this case, cocci spores. To put the issue in context, if the

constitutional right as framed is considered a right to protection specifically from


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diseases or any broader formulation, then Plaintiffs prevail and the analysis ends. If

the level of generality requires reference to coccidioidomycosis, then the matter must

be debated further.

Defendants point out that the Supreme Court has instructed lower courts not to

define the law at a high level of generality. SAB 24-25; DR 8-9. This merits an

itemization of what these options actually are: (1) the most specific phrasing would be

to define the right as protection from coccidioidomycosis; (2) the next level of

generality would be to define the right as protection from diseases; (3) next, protection

from environmental toxins; (4) protection from the universe of health dangers, as

suggested by Helling; and finally, (5) protection from all cruel and unusual

punishment, the text of the Eighth Amendment. Clearly (5) is too general. But

Defendants are necessarily saying that even (2) is too general.

Defendants offer little to explain why (2) is not specific enough for the clearly

established test. The prison officials only say the definition should be “very specific.”

SAB 26. The medical officials dispute level (4) generality, but base their position on

an illusory difference between natural hazards and man-made ones. DAB 20.

The medical officials go on to note that reliance on the Helling standard (4), or

to a more specific standard such as diseases in (2), does not provide officials sufficient

guidance to provide them fair warning. DAB 20-21. But officials had fair warning

from Helling, which suggested that inmates are entitled to protection from all dangers

meeting its standard, including diseases. Helling v. McKinney, 509 U.S. 25, 33 (1993).

Prison officials were obligated to turn to their own health and safety experts for

additional guidance. The courts’ purpose is not to act as the Department of Health or

the Center for Disease Control. The courts do not publish regulations directing

specific safety protocols. The officials have health experts, facilities professionals and

lawyers to design safe practices consistent with the current best practices given Eighth

Amendment principles.


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Accordingly, despite Defendants’ citation that the constitutional right should

be viewed in Saucier’s “specific context,” there is no good reason to require more

specificity than health dangers meeting the Helling standard. But even if the issue is

viewed in a gratuitously specific light, it is clearly established that inmates have a right

to protection from diseases that meet its standard. AOB 19.

III.

THE DISTRICT COURT ERRED BECAUSE NO PRIOR COCCIDIOIDOMYCOSIS CASE WAS NECESSARY. OFFICIALS HAD ADEQUATE NOTICE FROM EXISTING LAW TO PROTECT INMATES FROM THIS DISEASE.

In the event this Court considers qualified immunity to require an analysis of the

right in terms coccidioidomycosis specifically, Plaintiffs alternately contend that the

facts of this case fall within a series of formulations that put officials on sufficient

notice.

Plaintiffs analyzed the predominant formulations utilized by the courts to decide

whether prison officials were obligated to address a given danger. These include

asking whether the contours of the right were sufficiently clear (AOB 22), whether

guidance in handling a specific disease was manifestly included within more general

principles (AOB 23) and whether officials had fair warning that a given danger merited

constitutional protection (AOB 24). A. The Contours of the Constitutional Right To Protection From a

Disease like Coccidioidomycosis Were Sufficiently Clear given the Standards Set Forth in Helling.

The prison officials do not speak to the contour rubric, but the medical officials

argue that Helling and Farmer are too general to carve out the specific contours of the

right to protection from valley fever. DAB 19. The medical officials analogize to

Taylor v. Barkes in asserting that the broad right inmates possess to mental health

protection did not mean they have a right to specific suicide-prevention protocols.

DAB 20. But the comparison is not apt because there was no epidemic of suicides at


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Young Correctional Institution. Had it experienced suicide rates that were 100-500

times higher than the larger rate in the State of Delaware, a different outcome would

have been warranted.

What exactly is a contour, anyway? It seems to be the equivalent of a standard;

as such, Helling established (or perpetuated) a body of case law spanning 30 years that

established the contours of the right to protection from diseases. See Gates v. Collier,

501 F.2d 1291, 1300-1301 (5th Cir.1974); Hutto v. Finney, 437 U.S. 678, 682, 685

(1978); Helling v. McKinney, 509 U.S. 25, 33 (1993); Randles v. Hester, 2001 WL

1667821, *2, Civ.No. 98-cv-1214 (M.D.Fla.2001); Brown v. Mitchell, 327 F.Supp.2d

615, 631 (E.D.Va.2004). B. Guidance in Handling the Coccidioidomycosis Epidemic

Was Manifestly Included within More General Applications of the Core Constitutional Principle of Protecting Inmates From Diseases.

The inmates argued that notice to officials about valley fever in particular was

included within more general applications of the core constitutional principle of

protecting inmates from diseases. AOB 23. Neither the prison officials nor the medical

officials tendered a response to this point. C. Officials Had Fair Warning That They Were Violating The Inmates’ Constitutional Rights.

In the opening brief, the inmates argued that prison officials had fair warning to

take safety measures to protect inmates from the epidemic. AOB 24. Appellants

argued by way of comparison that this case, a sometimes fatal disease affecting

thousands of people, was dramatically more serious than Board v. Farnham, where the

deprivation of toothpaste was treated as an unconstitutional infringement. Board v.

Farnham 394 F.3d 469, 483 (7th Cir.2005).

1. Defendants Read Helling Too Narrowly.

The officials contend that they did not have fair warning. SAB 28-30. Their

position consists really of two qualitative points: that, impossibly, they did not know

they were supposed to protect inmates against the disease coccidioidomycosis at all,


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since it has never been the subject of a prior published opinion, but even if they did,

and in another iteration of their prior point, they were not sufficiently alerted to what

they were specifically supposed to do.

They first argue that Helling does not supply guidance beyond the factual

situation of second-hand smoke. They say it affirmed the court of appeal’s decision

that such dangers were not clearly established. SAB 29.13 Ergo, they imply that

Helling requires a toxin-by-toxin catalog approach before liability can be imposed for

any given substance.

But to look at Helling as limited to second-hand smoke overlooks its broader

language that establishes that any “condition of confinement” that subjects a prisoner

to a risk of serious illness is actionable. Helling, 33. Helling went on to cite Hutto v.

Finney, 437 U.S. 678 (1978), which named two diseases in support of a broader rule

that risk of disease is one of the original kinds of “conditions” the Eighth Amendment

protects prisoners against. Helling, 33.

Put another way, no reasonable state official could believe in light of Hutto and

Helling that a disease like coccidioidomycosis – in the same safety-protocol league as

the Ebola virus (4 AER 570) – could be ignored, just because Hutto and Helling had

not identified it by name. Cf. Boyd v. Benton, 374 F.3d 773, 781 (9th Cir. 2004) (law

does not need to be clearly established as to each new type of weapon).

If that were true, then the issue in Helling should not have been whether second-

hand smoke was dangerous, but whether the particular brand of cigarettes McKinney

secondarily inhaled was. After all, prison officials could maintain that second-hand

smoke from Lucky’s are more dangerous than Cool’s, and until a published case settles

the matter as to every name brand, there must be immunity. Indeed, that would also

mean that as of right now, prison officials could stand idly by during an Ebola

13 It is not clear whether the Supreme Court affirmed the court of appeal’s ruling on damages. Helling, at 29, 35. However, as the dangers of second-hand smoke were a truly novel study at the time, it would fit a proper qualified immunity narrative.


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outbreak. As far as Appellants’ research discloses, there is no published case placing it

on the list of dangers in Defendants’ hypothetical, toxin-by-toxin catalog.

Rather, Helling adds second-hand smoke as a new category of dangers for

qualified immunity purposes. Diseases have been recognized. To limit Helling to

second-hand smoke would irrationally immunize officials from liability unless Rocko

P. McSmashhappy had been the subject of a prior case before he attacked his

cellmate.14 The law is clearly established that authorities must protect inmates from

other dangerous inmates and from diseases, without a published opinion identifying

every one by name.

2. Prison Officials Cannot Escape Liability under Qualified Immunity by Quarrelling over the Exact Application of the Helling Standard in the Context of an Epidemic.

The officials’ alternative argument is that Helling set too vague a standard –

“substantial risk of serious harm” – for state agents to know exactly what to do in

response to this threat. SAB 30. They contend that such a standard does not inform

them at what point exposure to a hazard (such as cocci spores), which has little or no

effect on most people, becomes a substantial risk of serious harm. SAB 30. “Thus,

Helling lacks the specificity required under Taylor and Mullenix to have put

Defendants on notice about the unconstitutionality of their alleged conduct ... only

forty percent of those exposed to the spores will show symptoms of respiratory illness

and a smaller subset of those persons will show more severe symptoms.” SAB 30.

This argument is flawed in several particulars. First, generating semantic

disputes over the Helling standard does not provide grounds for officials to be

exonerated on qualified immunity. Castro v. Los Angeles, 797 F.3d 654, 668 (9th

Cir.2015).

14 Employing this logic, Arizona could argue that even if this Court ruled in favor of the inmates, it would not be sufficient future guidance as to it, since it would not address the cocci strain specific to that region. See Teixera, Use of Population Genetics to Assess the Structure of Coccidioides, Emerging Infectious Diseases, Vol. 22, No. 6, June 2015.


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Even so, this is not a plausible defense here. Defendants trumpet the fact that

serious illness, albeit usually temporal, only begets 40% of those infected. SAB 31.

That is 2 out of every 5 people. This is objectively a substantial risk in the disease

context. Satterwhite v. Dy, 2013 WL 257420, *11, Civ.No. C11-0528

(W.D.Wash.2013) (“Lacist cites to no case – and this Court can find none – standing

for the proposition that a 5% risk of developing a serious, potentially life-threatening

disease is, as a matter of law, not an objectively serious risk of harm.”)

Notwithstanding, by any rational standard on review of a 12(b)(6) dismissal,

Plaintiffs adequately pled that as to them, their risk of exposure to the disease was

substantial. 4 AER 563-564; 4 AER 568-572; see Table 1 (Appendix C); see AOB

Appendix A.

In terms of VF creating a risk of serious harm, Defendants admitted as much in

2006 and 2013. 4 AER 575; Plata v. Brown, 2013 WL 3200587, *14, Civ. No. C01-

1351, Dkt. 2618:10, 2661:17 (N.D.Cal.2013); see AOB, Appendix B; see RJN 250,

269. To minimize its danger would also contradict this Court’s recent observations.

Edison v. GEO, 822 F.3d 510, 514-515 (9th Cir.2016).

Dr. Winslow’s own November, 2000 policy memorandum named the impetus to

create the 2007 policy: “In calendar year 2005, two San Joaquin Valley institutions,

Pleasant Valley State Prison and Avenal State Prison, identified significant increases in

the number of inmate-patients presenting with cocci, with deaths attributed to this

disease.” RJN 85 (Ex. 64, Policy, Nov. 20, 2007, p. 1 [emphasis added]).

Beyond that, the coccidioidomycosis disease process is objectively frightening:

it starts a dissolution process of lung tissue – critical to the function of breathing – that,

as far as generally low-percentage events relating to diseases go, pretty frequently

causes real, permanent, and pervasive complications. 4 AER 563-564; 4 AER 568-572;

AOB Appendix B; Wheeler, p. 74 [RJN 298, Ex. 28 [reflecting that at least 20% of the

affected population (115/579) experienced the disease severely]; Edison v. Geo, at 514-

515.


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If Defendants are pleading uncertainty as to whether contraction rates 100-500

as high as seen in the general California population created such risk (see Table 1; 4

AER 575), then not only are they plainly incompetent within the meaning of Ashcroft

v. al-Kidd, but they are clearly indifferent to the needs of those they have an obligation

to protect. Gregg v. Georgia, 428 U.S. 153, 169 (1976).15

Once rates at PVSP became shockingly high, they were advised to exclude the

susceptible ones, to install suppression measures, keep the facilities clean, properly

warn the inmates, and take other safety measures. 4 AER 571-578, 583.

Moreover, Defendants had the entire prison medical system to advise them.

They had the receiver’s office. They had the state’s largest law firm at their fingertips,

which includes almost three dozen lawyers and legal professionals copied on the trial

court filings in this case.

Defendants cannot seriously maintain that they could not figure out whether

there was excess danger. Nor can they legitimately contend they were in the dark in

terms of how to responsibly deal with the epidemic. The record reveals that CDCR

officials were well aware of the problem and fully-apprised of potential solutions, all

detailed in memorandum after memorandum after memorandum. 4 AER 571-580,

15 The obligation to protect prisoners from cruel and unusual punishment dates back to 1689. Gregg v. Georgia, 428 U.S. 153, 169 (1976); Furman v. Georgia, 408 U.S. 238, 241 (1972). Litigation over the phrase mostly concerned deliberate punishments: ones viewed as medieval, or excessive relative to the crime. Gregg, 169-173; Estelle v. Gamble, 429 U.S. 97, 102 (1976). The state’s obligations to protect inmates from dangerous environmental conditions started appearing in published cases in the mid-late 1900’s. See Wright v. McMann, 387 F.2d 519, 526 (2d Cir.1967); Hutto v. Finney, 437 U.S. 678, 681-686 (1978); Wilson v. Seiter, 893 F.2d 861, 864-866 (6th Cir.1990), vacated in Wilson v. Seiter, 501 U.S. 297 (1991).


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583.16

The truth is they were not willing to spend the money. 4 AER 597 [¶ 181].

Qualified immunity is an excuse in this case to justify what was a conscious abrogation

of basic principles of responsible penology. 4 AER 585-586; See McGuckin v. Smith,

974 F.2d 1050, 1060 (9th Cir.1992) (“the fact that an individual sat idly by as another

human being was seriously injured despite the defendant's ability to prevent the injury

is a strong indicium of callousness”).

The state’s problem is not ignorance, but defiance. That defiance has been so

palpable that in twin rulings in June, 2013, one by a three-judge panel and a separate

opinion by Northern District Judge Thelton Henderson, the courts excoriated prison

officials for years of neglect in terms of refusing to deal with inmate health issues,

including this epidemic. Plata v. Brown, 952 F.Supp.2d 901, 904-906 (N.D.Cal.2013);

Plata v. Brown, 2013 WL 3200587, *8-12, Civ. No. C01-1351, Dkt. 2661

(N.D.Cal.2013) [RJN 253, Ex. 82]. Judge Henderson captured the problem by quoting

a leading valley fever expert, Dr. John Galgiani:

“The most disturbing aspect of defendant's response to plaintiffs'

Valley Fever motion is that defendants have known since at least 2005

that they are dealing with a public health emergency because of the

unfortunate regularity with which Valley Fever deaths are continuing

to occur in these two prisons. Public health emergencies require

16 See, e.g.:

11/2004 Kanan memorandum [4 AER 571, ¶ 45] 08/2006 Policy memo [4 AER 575, ¶ 63] 10/2006 Cocci report [4 AER 575, ¶ 61] 01/2007 CDHS report [4 AER 577, ¶ 71] 06/2007 Recommendations for mitigation memo [4 AER 576, ¶ 68] 09/2007 Pappagianis memo [4 AER 577, ¶ 69] 11/2007 Revised policy memo [4 AER 578, ¶ 74] 12/2007 Fresno grand jury report [4 AER 582, ¶ 95] 12/2009 NIOSH memo [4 AER 579, ¶ 78] 10/2012 CCHCS report [4 AER 576, ¶ 66].


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immediate action, not waiting for further study. It is deeply troubling

to me that CDCR proposes to deal with this public health emergency

by relying on measures which either have not worked in the past or

which are unsubstantiated mitigating strategies. In my opinion it will

take many years to determine whether certain environmental abatement

measures might lower the incidence of disseminated disease and death

caused by the existing Valley Fever problem. From a public health

standpoint, that is unacceptable. It would seem imperative that

prisoners of high risk for serious complications be transferred and

excluded from these two prisons as soon as possible.” Plata v. Brown,

2013 WL 3200587, *12, Civ. No. C01-1351, Dkt. 2661 [RJN 272].

Perhaps there is a case in another context where prison officials could be

legitimately confused as to whether a particular health threat meets the Helling

standard, but this is not it. Defendants’ request for immunity is based on arguing they

since they were not told whether to fight the fire with water or foam, they did nothing.

This is self-evidently unacceptable. 3. Fair Warning May Come From Sources

other than Published Case Law.

In Hope, the Supreme Court relied on a Department of Justice memorandum

advising the Alabama Department of Corrections that its practices relating to hitching

posts were unconstitutional. Hope, 536 U.S. 730, 744-745. Thus, fair notice does not

have to consist of published case law.

Plaintiffs pointed to a mountain of alerts, reports and studies provided to prison

officials that warned them to take precautions. 4 AER 572-579. There was even a

popular book published in 2008 named “Valley Fever Epidemic.” 4 AER 469, fn. 4.

Frankly, Defendants’ example has set responsible penology back 70 years to a

time when some prisoners-of-war were unable to persuade authorities to safeguard

them from the disease. See Smith, Charles, U.S. Army Medical Department, Office of


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Medical History, Ch. 16, p. 297-298 (RJN 307); Ferry, David: The Fever, Mother

Jones, p. 34 (January, 2015) (noting that German WWII prisoners were relocated); see

Goodyear, Dana, “Death Dust,” The New Yorker (January, 2014); compare Wright v.

McMann, 387 F.2d 519, 526 (2d Cir.1967) (early conditions case, cold exposure).

For all of these reasons, Defendants had ample information to take informed

steps within the meaning of 8th Amendment “fair warning” jurisprudence.

IV. EVEN IF THE LAW HAD TO BE ESTABLISHED WITH RESPECT TO COCCIDIOIDOMYCOSIS SPECIFICALLY, THE DISTRICT JUDGE ERRED BY NOT CREDITING NINTH CIRCUIT OPINIONS THAT REMINDED DEFENDANTS THAT THE LAW WAS ESTABLISHED.

A. The Lenoir Smith, Jones and Johnson Opinions from this Court

Affirmed that Inmates’ Exposure to Diseases, including Coccidioidomycosis, are governed by Helling.

In the opening papers, Plaintiffs argued that three unpublished opinions authored

by this Court during the epidemic alerted prison officials to take precautions. AOB 26-

27, citing Lenoir Smith v. Schwarzenegger, 393 Fed.App’x 518 (9th Cir. 2010), Jones

v. Igbinosa, 467 Fed.Appx. 604, 605 (9th Cir.2012), and Johnson v. Pleasant Valley,

505 Fed. App’x 631. Plaintiffs submitted that, fairly read, these opinions consistently

reminded officials that exposure to cocci states an 8th Amendment claim if the inmate

pleads danger exceeding the Helling standard. AOB 26-27.

Prison officials respond that there was no discussion in either Lenoir Smith or

Johnson about the merits, nor were the exact requirements to state an Eighth

Amendment violation explained, and therefore these cases did not provide officials

adequate notice. SAB 28. The medical officials offer a similar dissent stating that

these cases did not provide officials with specific guidance regarding an inmate’s right

to be free from valley fever exposure, much less put the statutory or constitutional

question beyond debate. DAB 22.

Plaintiffs disagree. All three cases reflect that an exposure-to-cocci claim is

cognizable if the prisoner’s pleading satisfies the Helling standard. Lenoir, 519; Jones,


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605; Johnson, *2. The medical officials insist that there is no discussion of what is

required to exactly state a claim. But this Court’s language contradicts their assertion:

“We... allow Smith the opportunity to amend his complaint to allege facts

demonstrating that the defendants are aware of a substantial risk to Smith's health and

have not taken action to prevent or minimize that risk.” Lenoir, 519. These opinions

expressly state the level of specificity that is required: facts meeting Helling’s standard.

The medical officials claim that Jones v. Igbinosa did not recognize an exposure-

to-cocci claim as cognizable, but there would be little point in the court’s decision to

cite Farmer if it was impossible to successfully plead such a claim. Jones, 605.

Though the medical officials insist that such shorthand is not enough, it is enough

when the case merely proposes to remind officials that the law is already established.

Turning to that point, neither the officials nor the medical officials respond to

Plaintiffs’ argument in the opening papers that none of these cases actually propose to

establish the law for the first time as to coccidioidomycosis; they reflect that the law is

already settled – the Helling standard governs environmental risks to inmate health.

Lenoir, 519; Jones, 605; Johnson, *2.

Accordingly, although these cases may not themselves be detailed studies in the

cocci epidemic, they remind authorities that an exposure-to-cocci claim is

constitutionally viable; that the essential pleading requirements revolve around the

familiar Helling standard; and that facts pled that meet that standard earn a litigant the

right to proceed beyond the pleading stage.

Accordingly, these cases put officials on notice that they ignored the epidemic at

their peril. No reasonable reader of them could conclude that an exposure-to-cocci

claim was doomed as a matter of law after observing these cases provide avenues for

inmates to push forward upon a sufficient factual showing.


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B. The District Judge Previously Ruled that Lenoir Smith and Johnson Established the Law Clearly Enough to Put Him on Notice that Coccidioidomycosis Plaintiffs Could State a Claim; if so, the Law Was Clear Enough to Put Prison officials on Notice.

Appellants argued that in earlier rulings, the district court had itself recognized

that exposure to cocci was a cognizable claim, based on the Lenoir Smith and Johnson

opinions, and only reversed its views after the magnitude of Plaintiffs’ effort became

apparent. AOB 27-28. Defendants do not respond to this point.

V.

A CONSENSUS OF DISTRICT COURT CASES ESTABLISHED THAT A COCCI CLAIM WAS COGNIZABLE. THE DISTRICT COURT ERRED BY HOLDING OTHERWISE.

A. District Court Opinions Recognize Exposure to Coccidioidomycosis

as a Cognizable Claim If Pled Properly.

In Appellants’ Opening Brief, the inmates cited about 20 pro per district court

cases that predated the instant action. AOB 28-32, fns. 7-8; see Appendix E (full pool

is closer to 40). Plaintiffs deduced from them a fundamental recognition that cocci

claims were constitutionally plausible, even though inmates almost uniformly failed to

plead them to Helling (and Iqbal) standards. AOB 28-32.

Prison officials respond, drawing from Taylor, that there was no “robust

consensus” among this pool of cases as to whether allowing inmates to be exposed to

valley fever was clearly unlawful, as do the medical officials. SAB 19, 23-24; DAB 24.

They characterize the pool of cases as a mixed bag of viewpoints and outcomes.

Preliminarily, there is something to be said for such a volume of lawsuits – 40

pro per cases in federal court alone between 2006 and 2013, before Plaintiffs filed their

first case. Appendix E. This kind of mass effort is unprecedented in the civil rights

arena and should have set off alarm bells for prison officials within Hope v. Pelzer’s

fair warning doctrine.

Prison officials cite snippets of language critical of a given inmate’s case to

create doubt as to whether such claims were viable. SAB 34-37. The pool as a whole


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falls into three categories: a few cases where the inmate was allowed to proceed or

amend, which means it was viable by definition; a larger number in which the inmate

did not plead facts to meet the Helling standard, which also reveals cognizability17; and

a few claims where the district court funneled a permanently adverse outcome through

the state’s “society” argument.18 See Appendix E.

A disposition based on the “society” group of cases is based on the fallacy that

the incidence rates are comparable. See Table 1, supra; Appendix C. As such, this

latter group of cases cannot be included in the pool of cases to be considered for

purposes of what constitutes a consensus, any more than one would include claims

filed by persons living in China for a reactor meltdown in California. See, e.g.,

Barnhardt v. Tilton, 2009 WL 56004, Civ.No. 1:07-CV-539, *4 (E.D.Cal. January 7,

2009) (dismissing valley fever claim because inmate did not actually contract valley

fever).19 Subtracting these cases, the balance of cocci cases create the necessary

consensus in recognizing that such claims are cognizable, despite a high failure rate

based on insufficient factual pleading.

17 Chaney v. Beard Jones v. Igbinosa

Clark v. Igbinosa Lua v. Smith Harvey v. Gonzalez Owens v. Trimble Hines v. Youssef Sparkman v. California Holley v. Scott Stevens v. Yates Hunter v. Yates Thurston v. Schwarzenegger James v. Yates Whitney v. Walker (Citations in Appendix E.)

18 Smith v. Brown Schroeder v. Yates Gilbert v. Yates

19 There is also something intangibly troubling about the idea of polling courts for a “consensus” opinion. The 8th Amendment is a fundamental constitutional right. Unlike legislation, which is subject to majority rule, such rights are not supposed to be subject to group thinking. The mass failure of virtually all of the pro per cases reflects a possible materialization of this risk. See Appendix E.


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VI.

IF THE QUALIFIED IMMUNITY ARGUMENT IS OVERTURNED, THE DENIAL OF THE MOTION TO AMEND TO ADD TILTON AND SILLEN SHOULD ALSO BE REVERSED.

In the opening brief, Plaintiffs noted that motions proposing to name two

additional defendants were litigated in the district court and denied as moot, based on

the qualified immunity ruling. AOB 32; 1 AER 194a; 2 AER 205-253.

No opposition argument appears. Both Messrs. Tilton and Sillen were involved

in the relevant events. 2 AER 226, 252. The Court should reverse these rulings if the

qualified immunity argument is reversed.

VII.

MR. GREGGE’S DISMISSAL ON QUALIFIED IMMUNITY SHOULD BE OVERTURNED BECAUSE OFFICIALS WERE AWARE OF THE EPIDEMIC WELL BEFORE HE ARRIVED AT PVSP.

In his opening brief, Mr. Gregge moved to overturn the judgment against him,

both in terms of reversing the qualified immunity ruling, dismissal of his complaint

against Yates, and denial of his motion to amend. AOB 33-34.

On qualified immunity, the officials point out that it could not have been settled

in 2006 that housing Gregge at Pleasant Valley violated the Constitution. SAB 52.

Gregge contracted the disease in September, 2006. 6 AER 1180.

Over a decade earlier, from the early 1990’s, officials were aware of the body of

case law obligating them to protect prisoners from being exposed to a substantial risk

of any serious harm, including from disease, by virtue of Helling, Brigaerts and

Muhammad. Defendants knew of the epidemic by 2005. Plata v. Brown, 2013 WL

3200587, *14, Civ. No. C01-1351, Dkt. 2661 (N.D.Cal.2013); RJN 272 [Ex 82]. In

fact, Defendant Yates, then Warden of PVSP, knew he had a serious problem on his

hands by 2004. See Table 1, supra; Appendix C; Plata v. Brown, 2013 U.S.Dist.Lexis

90669, 50 (N.D. Cal. June 24, 2013) (establishing that VF is serious). There were also

warnings discussing the gravity of the problem circulated several years before Gregge

contracted the virus. See 4 AER 573 [¶ 56]; RJN 6 [Ex. 58]. Dr. Galgiani informs us


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that public health emergencies require immediate action. Plata, at *14 [RJN 272, Ex

82]. Officials, including Yates, had at least a year to implement VF safety protocols

before Gregge came on the scene.

VIII. GREGGE PLED ADEQUATE FACTUAL DETAIL TO ESTABLISH WARDEN YATES’ KNOWLEDGE AND PERSONAL PARTICIPATION.

The Magistrate commented that the complaint could also be dismissed for failure

to adequately allege detail against Warden Yates: “The complaint is devoid of any

allegations that Defendant Yates implemented the policy or by virtue of his position as

Warden had the authority to decide to continue operating PVSP. Plaintiff fails to state

a plausible claim that Defendant Yates personally participated in a deprivation of his

rights.” 1 AER 91.

A. Gregge Adequately Pled Warden Yates’ Involvement.

Allegations of a pro se complaint are held to less stringent standards than formal

pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also

Maurer v. Los Angeles Sheriff's Dept., 691 F.2d 434, 437 (9th Cir.1982); Gillespie v.

Civiletti, 629 F.2d 637, 640 (9th Cir.1980). “In civil rights cases where a plaintiff

appears pro se, the court must construe the pleadings liberally and must afford plaintiff

the benefit of any doubt.” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,

623 (9th Cir.1988). Documents, such as exhibits, that are appended to a complaint are

a part of it. Fed.R.Civ.P 10(c); Richards v. FDIC, 572 Fed.Appx. 499, 500 (9th

Cir.2014).

Gregge’s complaint, neatly written, contained allegations supported by facts that

plausibly connected Yates to a decision to ignore the Valley Fever problem. He

alleged how then-warden Yates had personal knowledge and a responsibility to address

the VF problem, but declined to act. 6 AER 1178-1182 [¶¶ 1, 8, 15, 17]. Gregge

provided a wealth of factual information to infer Yates’ personal knowledge in citing

CDCR’s abandoned construction program in light of more than 900 VF cases since

2003. 6 AER 1187. Gregge cited a dozen deaths and included plenary information


____________________________________________________


about the public debate at the time. 6 AER 1187. Yates was at the informational center

of this controversy. 6 AER 1182 [¶¶ 16-17]. His inaction as warden in allowing Mr.

Gregge’s transfer to PVSP without scrutiny, and amidst an epidemic, plausibly led to

the resulting contraction. 6 AER 1178, 1179 [¶¶ 5, 10]; Redman v. San Diego, 942 F.2d

1435, 1447 (9th Cir.1991); Watkins v. Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998);

Moss v. U.S. Secret Service, 711 F.3d 941, 967-68 (9th Cir.2013).

Supervisory liability also exists for Warden Yates in not developing policies to

safeguard the grounds or protect/remove/isolate susceptible inmates like Gregge. See

Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989); Redman v. County of San Diego,

942 F.2d 1435, 1446-47 (9th Cir. 1991); Starr v. Baca, 652 F.3d 1202, 1206-07 (9th

Cir. 2011); see Wheeler, RJN 298-299 [Ex. 86, pp. 73-74]; 6 AER 1181-1182 [¶ 15].

B. Leave to Amend Was Incorrectly Denied.

Assuming Gregge’s complaint were insufficiently pled, prison officials maintain

that Gregge should not have been given even one chance to amend, because counsel

did not identify what deficiencies he would correct in Mr. Gregge’s pro se filing. SAB

78.

Leave is liberally granted. Fed.R.Civ.P. 15(a); Lucas v. Dept’ of Corr., 66 F.3d

245, 248 (9th Cir.1995). At the time Gregge’s counsel represented to the Court that he

desired to “comprehensively amend” the complaint (6 AER 1136), he had filed and

served six similarly-worded lawsuits ranging from 73 to 276 pages. 4 AER 554-828

[Smith Consolidated Complaint]; 6 AER 1221 [Beagle], 1243 [Abukar]; 6 AER 1255

[Adams] 6 AER 1260 [Morrow]; 6 AER 1265 [Campbell]. There was no

misunderstanding of what that term meant.

For the foregoing reasons, Mr. Gregge’s complaint was sufficient – in fact,

excellent work as far as pro per complaints go – to state his claim. Notwithstanding,

leave should have been perfunctorily granted once counsel became involved.


____________________________________________________


IX.

PLAINTIFFS PLED SUFFICIENT DETAIL TO ESTABLISH EACH DEFENDANT’S PERSONAL PARTICIPATION.

In the prison officials’ brief, they tender an argument that there is insufficient

information in the complaint to establish each defendant’s knowledge and personal

participation in the relevant events. SAB 47-51.

Plaintiffs’ consolidated complaint consisted of 276 pages of detailed factual

information as to each defendant to overcome Defendants’ unquenchable demand for

specificity with respect to every issue. See 4 AER 554-828; see Beanal v. Freeport,

197 F.3d 161, 164 (5th Cir.1999) (Rule 8 only requires sufficient information to

outline the elements of the claim or permit inferences to be drawn that these elements

exist); see In re Cathode Ray Tube, 2010 WL 9543295, Civ. No. 07-5944

(N.D.Cal.2010) (detailed “defendant by defendant” allegations not necessary).

The question of sufficient pleading as it relates to the knowledge and personal

participation elements of a 1983 claim was first addressed in an earlier series of

motions to dismiss. 6 AER 1223 [Dkt. 25]; 6 AER 1327 [Dkt 37]; 5 AER 896.

Plaintiffs opposed them and the Court granted leave. 6 AER 1331 [Dkt. 61]; 5 AER

853. Defendants then moved only on the basis of qualified immunity, which left their

personal participation challenge to the complaint unlitigated below. To save another

round of pleading challenges, which risks a further Rule 26 stay, Plaintiffs have no

objection to the Court addressing the sufficiency of the complaint.

A. All Defendants Had Knowledge of the Epidemic.

The prison officials fault Plaintiffs for systematically identifying each’s title and

job description in the state prison system heirarchy, and then generally alleging

knowledge of the problem by having read or received various internal state

memorandums. SAB 48; see, e.g., 4 AER 751-752. Knowledge may be generally pled.

Fed.R.Civ.P. 9(b); Kearney v. Foley and Lardner, 2011 WL 1119047, *6, Civ. No. 05-


____________________________________________________


cv-2112 (S.D.Cal.2011), citing Exergen v. Wal–Mart, 575 F.3d 1312, 1327

(Fed.Cir.2009).

In any event, half of the defendants authored these memos or are copied on

them, so their knowledge of the epidemic is established. See, e.g., 4 AER 756

(Hubbard); 4 AER 759 (Hysen); 4 AER 575, 770 (Mr. Kernan copied on both 2006

and 2007 policy memos); 4 AER 777-778 (Schwartz); 4 AER 779 (Schwarzenegger); 4

AER 782-783 (Winslow); 4 AER 784 (Yates); see Appendix D.

For the other half, it would have been impossible for them to not have known of

the problem given their position and title, as well as national media attention afforded

to the outbreak. See, e.g. 4 AER 586 (noting New York Times article) (RJN 91); see 4

AER 745-746 (Beard), 4 AER 747 (Brazelton); 4 AER 753 (Hartley); 4 AER 760

(Igbinosa); see Appendix D.

Defendants claim that 5 defendants – Beard, Brazelton, Cate, Meyer and

Rothchild – could not have had knowledge of memorandums in 2007 since they did

not work for CDCR at that time. SAB 48. Defendants seem to be suggesting that

knowledge of critical policy information chronicled in official state memorandums

ends at the date they are written; that later-hired officials do not become aware of

events that preceded their appointment. Respectfully, this viewpoint is nonsense. This

is why memos are written in the first place.

Regardless, Plaintiffs’ allegations permit a reasonable inference of knowledge.

As to Mr. Beard, he was represented by counsel as a defendant in filings speaking

directly to the valley fever problem in 2013, during the lead up to Judge Henderson’s

June 24, 2013 ruling. Mr. Beard personally filed 9 declarations within the same action,

and at the same time, as the cocci issues were being litigated. See Plata v. Brown, Civ.

No. 01-1351, Dkt Nos. 2508, 2544, 2574, 2603, 2641, 2673, 2680, 2706, 2714

(N.D.Cal.2001). As a matter of professional responsibility, Beard was required to have

knowledge of the case and to have given consent for the AG’s office to subsequently

take valley fever positions on his behalf. See Blanton v. Womancare, 38 Cal.3d 396,


____________________________________________________


403 (1985); Public Works v. Malone, 232 Cal.App.2d 531, 537 (1965); Civ. Code, §

2356.

Plaintiffs’ allegations as to Defendant Brazelton permit an inference of

knowledge. The suggestion that he, the 2012-2013 warden of PVSP at a time when

hundreds of inmates were contracting the disease on his premises, was not aware of the

VF problem should be rejected out of hand.

Secretary Cate had personal knowledge. He took the reigns from Former

Secretary Tilton beginning in 2008, and was a named official in the Fresno Grand Jury

2008-2009 report discussing the epidemic. 4 AER 752. As a matter of state law, he

was required to respond in writing to the report’s findings. CA Pen. Code, § 933.05.

He did, on June 30, 2008. RJN 126-129 [Ex. 67]. He was also served with Mr.

Gregge’s lawsuit in 2011. Gregge v. Cate, Civ. No. 1:15-cv-00176-LJO-SAB, Dkt. 1,

37 (E.D.Cal.2009) (RJN 205, Ex. 76).20

An inference of knowledge can be made against Facilities Chief Chris Meyer.

His direct subordinate, Deborah Hysen, had been intimately involved with the valley

fever problem since 2007. 4 AER 759. She was quoted in the 2007 New York Times

article. See 4 AER 586, 759 (RJN 94, Ex. 65). She authored a memorandum on July

20, 2007 proposing environmental solutions addressed to Former Secretary Tilton. 2

AER 252. She also appeared in the Plata litigation by providing an extensive history

of her involvement. Plata v. Brown, Civ. No. 01-1351, Dkt No.2614 (N.D.Cal.2001).

To think she could have participated in all of these endeavors without the knowledge

and consent of her immediate superior, Mr. Meyers, seems fanciful.

20 There is a subtle suggestion that the Secretary of CDCR would not be apprised of low level events. The record is to the contrary. Secretary Tilton personally signed a declaration in an individual valley fever case. Moreno v. Yates, Civ. No. 1:07-cv-1404, Dkt 30-3 (E.D.Cal.2007). Therefore, it is fair for Plaintiffs to allege that the much larger valley fever epidemic would have been widely known and discussed among the prison system’s top officials.


____________________________________________________


Finally, the allegations against Tanya Rothchild, the head of the Classification

Services Unit in the relevant time period, also support an inference of knowledge.

According to both the 2006 and 2007 policy memorandums, they were circulated to an

extensive list of lower level CSU employees. 4 AER 773; RJN 90, Ex. 64. It can be

reasonably inferred that Rothchild got word – if indeed, she was not informed at a

higher level, and earlier, as would be customary – based on this mass circulation. 4

AER 773; RJN 90.

For these reasons, all defendants either had provable actual knowledge, or,

reasonable inferences can be drawn from the information pled to support such a

conclusion.

B. Plaintiffs Pled Sufficient Information to Infer Personal Participation or Establish Supervisory Liability within Established Precedent.

The prison officials also contend that Plaintiffs did not plead their personal

participation in the decisions that led to their injuries. SAB 47-49. They remind us that

a supervisor is liable only if he or she participated in, or directed, a violation. SAB 47,

citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). The officials acknowledge

that a supervisor can also be liable for an omission if she knew of the violation, had the

authority to intervene and yet failed to act. SAB 47, citing Taylor, at 1045; see also

Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir.2011) cert. denied, 132 S.Ct. 2101

(2012); Larez v. Los Angeles, 946 F.2d 630, 645 (9th Cir.1991); Watkins v. Oakland,

145 F.3d 1087, 1093 (9th Cir.1998); Moss v. U.S. Secret Service, 711 F.3d 941, 967-68

(9th Cir.2013); Redman v. San Diego, 942 F.2d 1435, 1447 (9th Cir.1991); see also

Lemire v. CDCR, 726 F.3d 1062, 1074-75 (9th Cir.2013) (discussing causation

requirements); Lacey v. Maricopa County, 693 F.3d 896, 915-916 (9th Cir.2012).

Here, consistent with the Starr, Redman and other supervisory liability cases,

each defendant either participated in the unconstitutionally-narrow 2007 exclusion

policy or acquiesced to a non-existent policy, while having a domain of authority to

have implemented one that would have prevented the harm. See Appendix D. Under


____________________________________________________


the pleading standards established by this Court, see e.g., Starr, Redman, and Moss, the

factual allegations in the complaint were adequate. See Appendix D; 4 AER 745-785.

CONCLUSION

Appellants respectfully request the Court to find that there was an obvious 8th

Amendment violation when state officials ignored an epidemic.

In addition, the Court should find that the district court erred in its qualified

immunity analysis by looking to the holdings of other cases instead of analyzing the

facts alleged in this one, particularly since those other cases were not comparably

pleaded. The district court instead adopted facts inherent in Defendants’ view of the

case; this was impermissible under Tolan v. Cotton.

The Court should reject Defendants’ assumption that the constitutional right at

issue is protection from coccidioidomycosis specifically. Numerous cases have

established a broader right to protection from any disease that poses a danger to

inmates. State officials knew coccidioidomycosis was such a disease, but elected not

to act. It does not matter whether its origin is organic or inorganic.

The Court should reject Defendants’ society argument, because the contraction

risks at the prisons dramatically exceed the surrounding communities. Comparative

information was tendered in the complaint, and is supplemented by detailed statistical

information reviewable as a matter of judicial notice on appeal. This data is also

corroborated by the 2015 Wheeler study, which found in addition that prisoners are

often more vulnerable to this disease than local residents.

The Court should also note that its unpublished opinions reminded state officials

that the Helling standard governed such matters and they were not at liberty to ignore

their lessons. The lower courts understood this, yet reversed their own positions upon

being confronted with an organized wave of valley fever lawsuits.

State officials had fair warning from numerous sources directing them to protect

prisoners from diseases, including settled Supreme Court cases, as well as specific


____________________________________________________


warnings from their own experts, various health reports, published scientific literature,

and numerous pro per lawsuits they were already defending.

For all of these reasons, the district court’s rulings on qualified immunity should

be reversed, as to all the Smith plaintiffs and Mr. Gregge.

In addition, the ruling denying Plaintiffs the right to name Messrs. Sillen and

Tilton should be reversed.

Mr. Gregge’s case should be reinstated because he provided sufficient factual

information in his complaint to plausibly establish liability of Warden Yates, and in

any event, he should have been afforded leave to amend once he secured counsel.

Finally, the Court should end Defendants’ challenges to the knowledge and

personal participation requirements, as there is an extensive factual showing before the

Court connecting every Defendant to knowledge and responsibility for these wrongs.

Respectfully Submitted:

Date: July 24, 2016 PAVONE & FONNER, LLP

s/ Benjamin Pavone Attorneys for Plaintiffs

Date: July 24, 2016 BURNS & SCHALDENBRAND /s/ Edward Burns Edward Burns, Esq. Date: July 24, 2016 AFFELD GRIVAKES ZUCKER LLP

s/ Gregg Zucker Gregg Zucker, Esq. Date: July 24, 2016 LAW OFFICES OF DAVID ELLIOT

s/ David Elliot David Elliot, Esq.

Date: July 24, 2016 LAW OFFICES OF MATTHEW B. PAVONE /s/ Matthew Pavone Matthew Pavone, Esq.


____________________________________________________


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rules of

Appellate Procedure, rule 32(a)(7)(B) because the text that counts in this document

contains a total of 11,929 words, just under the 12,000 maximum per the Court’s ruling

of July 7, 2016. It complies with the typeface requirements of rule 32(a)(5) and the

type style requirements of rule 32(a)(6) because this brief has been prepared in a

proportionately spaced typeface using Microsoft Word version 2010 in 14-point Times

New Roman.

If the Court elects to count the words in the Appendices, which are reference

materials and will place the count above 12,000, Appellants respectfully withdraw

them, first E, then D, then C, and as necessary Table 1 in the brief.

Date: July 24, 2016 PAVONE & FONNER, LLP1 s/ Benjamin Pavone

Attorneys for Plaintiffs

1 Pavone & Fonner, LLP is a registered limited liability partnership.


APPENDIX C


SMITH, et al. v. SCHWARZENEGGER, et al.

CONTRACTION RATE/100K (PVSP/ASP, COUNTY, STATE)

APPENDIX C - TABLE 1

YEAR CA State Rate/ 100K1

Central Valley Rate/ 100K2

PVSP-ASP Rate/ 100K3

PVSP ASP/ State Rate4

PVSP ASP/

Central Valley5

2003-046 6.7 88.6 936 139x 11x 2005 8 83.5 1822 228x 22x 2006 8.7 107.7 4784 550x 44x 2007 8.2 104.9 3192 389x 30x 2008 7 71.0 2397 342x 34x 2009 6.7 70.0 3561 531x 51x 2010 12.4 159.7 4203 338x 26x 2011 14.6 188.7 5306 363x 28x 2012 11.7 131.3 3412 292x 26x

1 Derived from Table 2. 2 Derived from Table 3A. 3 Derived from Table 4C. 4 Derived by combining data (rates) from Tables 4A and 4B and dividing by State Rate. 5 Derived by combining data (rates) from Tables 4A and 4B and dividing by CV Rate. 6 Averaged, given constraints of the data.


SMITH v. SCHWARZENEGGER


RATE/100K OF VALLEY FEVER CASES

CALIFORNIA STATEWIDE

Year California Population

VF Cases all of CA2

CA Rate #/100K3

2003 35,253,1591 2,0912 6

2004 35,574,5761 2,6412 7.4

2005 35,827,9431 2,8852 8

2006 36,021,2021 3,1312 8.7

2007 36,250,3111 2,9912 8.2

2008 36,604,3371 2,5972 7

2009 36,961,2291 2,4882 6.7

2010 37,253,9561 4,6222 12.4

2011 37,536,8351 5,4752 14.6

2012 37,881,3571 4,4312 11.7

2013 38,239,2071 3,2722 8.5

2014 38,567,4591 2,2432 5.8

Average 36,830,964 3,239 8.79

1 Census data derived from from U.S. Census Bureau (RJN 315 [Ex 89].) (URL [as of 06/04/2016]: https://www.census.gov/popest/data/intercensal/state/state2010.html) 2 Figures derived from Center for Disease Control, VF Statistics (RJN 310-311 [Ex. 88].) (URL [as of 06/04/2016]: http://www.cdc.gov/fungal/diseases/coccidioidomycosis/statistics.html); see also Epidemiologic Summary of Coccidioidomycosis in California, 2009-2012 (RJN 241 [Ex. 79].)



NUMBER OF VF INFECTIONS BY YEAR WITH POPULATION FIGURES BY COUNTY


FRESNO COUNTY

Rep’t Rate/ 100K

Avg. Rate/ 100K

KINGS COUNTY

Avg. Rate/ 100K

KERN COUNTY

Avg. Rate/ 100K

#Cases / Population

#Cases / Population

#Cases / Population

2003 1412/ 853,057

16.42 16.4 504/ 140,688

35.54

12322/ 728,872

169.02

2004 1221 1322/ 866,0581

14.11

15.12 14.6 724/

143,607 50.14 14632/

750,969 194.82

2005 2911 3382/ 897,1281

32.41

37.92 36.3 1274/

146,045 86.94 15182/

774,062 196.12

2006 7441 6802/ 893,0881

83.312

74.72 79.7 2314/

148,933 155.14 10372/

795,982 130.22

2007 4501 4172/ 906,5211

49.61

44.92 47.8 1384/

151,106 91.34 13912/

812,830 171.12

2008 3091 3232/ 918,5601

33.61

34.12 34.4 1834/

151,816 120.54 8482/

825,503 102.72

2009 5181 5132/ 929,7581

55.71

53.22 56.1 2024/

152,717 132.24 6262/

837,074 74.72

2010 7261 7292/ 936,0891

77.61

74.12 77.7 3804/

152,533 249.14 19792/

844,480 234.32

2011 7201 7233 6995 / 943,5091

76.31

77.03

75.15

75.6 3733 3761

3535/ 151,774

242.0 25733/ 25685 849,982

302.4

2012 5021 4793/ 4756/ 953,1791

52.71

50.53

50.16

50.9 2206 2373/ 151,127

151.2 18596 18603/ 861,164

215.7

2013 3121 3073/ 964,0401

32.31

32.13 32.1 893/

150,181 59.33 16593/

873,092 190.03

1 County of Fresno CPRA Response Letter, October 29, 2014. (RJN 285 [Ex 84]). 2 California Department of Health, Coccidioidomycosis Yearly Summary Report 2001-2010 (RJN 166 [Ex. 72].) 3 California Department of Public Health, “Yearly Summaries Of Selected General Communicable Diseases In California, 2011-2014” (RJN 292 [Ex. 85].) 4 CDH Yearly Disease Statistics 2001-2010 (RJN 176 [Ex. 73].) 5 CDH Yearly Summary of Coccidioidomycosis in California, 2011 (RJN 180 [Ex. 74].) 6 CDH Yearly Summary of Coccidioidomycosis in California, 2012 (RJN 237 [Ex. 78].)



NUMBER OF VF INFECTIONS BY YEAR WITH POPULATION FIGURES BY COUNTY

APPENDIX C - TABLE 3A

YEAR TOTAL CV CASES1

CENTRAL VALLEY POPL’N1

RATE/ 100K

2003 1423 1,722,617 82.62004 1662 1,760,634 94.22005 1518 1,817,235 83.52006 1980 1,838,003 107.72007 1962 1,870,457 104.92008 1347 1,895,879 71.02009 1343 1,919,549 70.02010 3086 1,932,343 159.7

2011 3669 1,944,618 188.72012 2579 1,964,524 131.3

1 Derived from combining figures in Table 3.



NUMBER OF VF INFECTIONS BY YEAR PVSP

APPENDIX C - TABLE 4A

YEAR PVSP PVSPAVG

POPL’N RATE/ 100K

2003 674 1071 1272 1285

107 4479 2389

2004 701 711

674 714

70 503811 1389

2005 1001 1944

1944 1502 1505 1664

2414 1844

172 485111 3546

2006 5201

5142

5145

516 509611 10125

2007 3238 323 529411 6101 2008 1938 1947 194 508411 3816 2009 3018 3117 306 486811 6286 2010 3118 3157 313 457411 6843 2011 3173

3417 329 45723 7196

2012 1647 164 364412 4501

1 Kern County Health Department Handout (within June 2007 SMD Report (Attachment 1) (RJN 69 [Ex 63].) 2 Kern County Health Department Handout (within June 2007 SMD Report (Attachment 2) (RJN 70 [Ex 63].) 3 Wheeler, Rates and Risk Factors for Coccidioidomycosis among Prison Inmates, Emerging Infectious Diseases, Vol. 21, No. 1, January 2015 (RJN 297 [Ex. 86].) 4 Letter to the Record, California Department of Health, January 12, 2007 (RJN 52 [Ex 5, p. 72].)

5 Fresno County Grand Jury Final Report 2007-2008 (RJN 121 [Ex. 67, p. 153].) 7 County of Fresno CPRA Response Letter, October 29, 2014 (RJN 285 [Ex. 84].) 8 “Coccidioidomycosis in California Department of Corrections and Rehabilitation Institutions,” (October 2012) (RJN 209, 221 [Ex 77].) 11 “California Prisoners & Parolees” (2004-2010) (RJN 17 [2004], 25 [2005], 33 [2006], 102 [2007], 141 [2008], 155 [2009], 163 [2010]; Exs. 59, 60, 61, 66, 68, 70, 71.) 12 Department of Corrections and Rehabilitation, Monthly Population Report (January 3, 2013) (RJN 246, Ex. 80)



NUMBER OF VF INFECTIONS BY YEAR ASP

APPENDIX C - TABLE 4B

YEAR ASP1 ASP AVG5

ASP POP.

ASP RATE/ 100K

2003-04 222

225

710411 310

2005 472 475 717211 655 2006 912 915 759111 1199 2007 818 815 736311 1100 2008 858 855 655611 1297 2009 1098 1095 678611 1606 2010 1278 1275 589411 2154 2011 2183 9 2185 57383 3799 2012 1407 1214 1305 497312 2614

1 Number of reported ASP cases by year. 2 Kern County Health Department Handout (within June 2007 SMD Report (Attachment 2) (RJN 70 [Ex 63].) 3 Wheeler, Rates and Risk Factors for Coccidioidomycosis among Prison Inmates, Emerging Infectious Diseases, Vol. 21, No. 1, January 2015 (RJN 297 [Ex. 86].) 4 Extrapolated as a second estimate for 2012 ASP cases by relative percentages of PVSP/ASP cases over time, per Table 4D. 5 Average number of ASP cases (2012 is the only year with multiple reports to average).

7 “Coalinga considers putting unused, costly jail up for sale” Fresno Bee, December 3, 2014 (RJN 283 Ex 83) (This figure was extrapolated in an even downward trajectory based on 757 cases reported by the Dept. of Health from 2008-2013 and 6 cases as of December, 2014.) 8 “Coccidioidomycosis in California Department of Corrections and Rehabilitation Institutions,” (October 2012) (RJN 221 [Ex 77].) 9 Kings County Health Dept., Epidemiology of Coccidioidomycosis - 15 Counties 2007-2011, p. 31 reported 648 cases from 2007-2011, which was comparable to the total from the CCHCS report in that period, 620. (RJN 194 [Ex. 75].) 11 “California Prisoners & Parolees” (2004-2010) (RJN 17 [2004], 25 [2005], 33 [2006], 102 [2007], 141 [2008], 155 [2009], 163 [2010]; Exs. 59, 60, 61, 66, 68, 70, 71.) 12 Department of Corrections and Rehabilitation, Monthly Population Report (January 3, 2013) (RJN 246, Ex. 80)



VF INFECTIONS BY YEAR PVSP-ASP COMBINED

APPENDIX C - TABLE 4C

YEAR PVSP+ASP1

PVSP+ ASP

POPL’N1

PVSP-ASP

RATE/ 100K

2003-04 111 11863 936 2005 219 12023 1822 2006 607 12687 4784 2007 404 12657 3192 2008 279 11640 2397 2009 415 11654 3561 2010 440 10468 4203 2011 547 10310 5306 2012 294 8617 3412

1 Derived from Tables 4A and 4B.



EXTRAPOLATING A SECOND FIGURE FOR ASP 2012 INFECTIONS

APPENDIX C - TABLE 4D

RELATIVE CONTRACTION CHART ASP/PVSP – BY YEAR

1 2 3 4 5 YEAR PVSP

AVG1 ASP1 ASP/

PVSP%2Avg’d

Increase3 2005 172 47 27.3 9.14 2006 516 91 17.6 18.28 2007 312 81 25.9 27.42 2008 194 85 43.8 36.56 2009 306 109 35.6 45.70 2010 313 127 40.5 54.84 2011 329 218 66.2 64.98 2012 164 1214 74.12

1Taken from Tables 4A and 4B in Appendix C.

2 Percentage of cases ASP/PVSP per year (e.g., 2005: 47/172 = 27.3%).

3 Projection based on evening out the slope in Column 4. See Table 4E.

4 Column 4 (ASP/PVSP%) reflects the percentage of ASP cases compared to PVSP cases, in a given year. That percentage can be graphed on a line chart, in blue. (See Chart 4D below). A more consistent line reflecting the average slope increase of the Column 4 data, derived from even calculations in Column 5, is drawn in red in Chart 4D. Based on an extrapolation from Column 5’s red line, ASP was projected to suffer 74.12% as many contractions as PVSP in 2012. Based on PVSP’s absolute 2012 number, 164, that translates to 121 ASP contractions. This figure, 121, was ultimately averaged with the estimate of 140 from Table 4B (note 7) to reach Appellant’s best estimate of 130 infections for year 2012 at ASP.


APPENDIX C – CHART 4D

ASP/PVSP PERCENTAGE RATIO CHART

PERCENTAGE OF ASP/PVSP CASES

– GRAPHED BY YEAR

Blue: Appendix F1, Column 4 graphed.

Red: Line extrapolated based on averaging the figures in Table 4D, Column 4 into one consistent trajectory.

0

10

20

30

40

50

60

70

80

2005 2006 2007 2008 2009 2010 2011 2012

ASP/PVSP Contractions (%)

Averaged (Projected)


APPENDIX D



APPENDIX D

ALLEGATIONS BY DEFENDANT

DEF’T ISSUE AER CITE

CC CITE

JEFFREY BEARD – CDCR SECRETARY

Authority Beard, Jeffrey Defendant Jeffrey Beard is the current Secretary of the CDCR. 4 AER 566

4 AER 745 20, 2082

Beard, Jeffrey Mr. Beard succeeded Defendant Matthew Cate to the position of Secretary of the CDCR on or about December 27, 2012.

4 AER 566 4 AER 745

20, 2082

Mr. Beard has overseen prison policy since his appointment 4 AER 566

20

Beard, Jeffrey As Secretary, Mr. Beard is responsible for all policies and practices of the CDCR.

4 AER 745 2083

Beard, Jeffrey Mr. Beard is responsible for the CDCR’s operational decisions. 4 AER 745 2083 Beard, Jeffrey Mr. Beard has direct supervisory authority over every CDCR

employee. 4 AER 745 2083

Beard, Jeffrey During his time as Secretary of the CDCR, Mr. Beard acted under color of state law, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions

4 AER 811 2590

Knowledge Beard, Jeffrey Mr. Beard had sufficient knowledge to act on the conditions

described in the Compliant as of December 2012. 4 AER 745 2084

Beard, Jeffrey Mr. Beard knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 747 4 AER 787

2084, 2266

Beard, Jeffrey Mr. Beard knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 745 2084

Beard, Jeffrey Mr. Beard knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly

4 AER 745 4 AER 787

2084, 2266



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controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

Beard, Jeffrey Mr. Beard knew about the Valley Fever epidemic, which had been ongoing at the hyper-endemic prisons for 6 years by the time he took office.

4 AER 745 2084

Beard, Jeffrey Mr. Beard knew about approximately $23 million in annual expenses paid by the CDCR for medical care for the victims.

4 AER 745 2084

Beard, Jeffrey Mr. Beard knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons and also recommended ground cover throughout the prison property.

4 AER 746 2085

Beard, Jeffrey Mr. Beard knew about a January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER746 2085

Beard, Jeffrey Mr. Beard knew about the annual Fresno County Grand Jury reports which discussed the Valley Fever problem, and referenced “high risk inmates”

4 AER 746 2085

Beard, Jeffrey Mr. Beard knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 746 2085

Beard, Jeffrey Mr. Beard knew about the November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations.

4 AER 746 2085

Beard, Jeffrey Mr. Beard knew that inmates housed at hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater

4 AER 812 2595

Conduct/Causation Beard, Jeffrey Mr. Beard, as head of CDCR, continued to implement the 2007

exclusion policy despite the multiple sources of information that he received, which left hundreds of high-risk inmates exposed to the

4 AER 746 4 AER 812 4 AER 813 4 AER 814

2087, 2595, 2599, 2600,



CC CITE

disease. 2610 Beard, Jeffrey Mr. Beard failed to act to otherwise protect inmates from this

risk other than to acquiesce to the federal court’s June, 2013 Order to evacuate additional inmates from two of the hyper-endemic prisons.

4 AER 746 4 AER 812 4 AER 813 4 AER 814

2087, 2596, 2600, 2610

Beard, Jeffrey Mr. Beard failed to act to implement the recommended remedial measures.

4 AER 747 4 AER 813

2088, 2600

Beard, Jeffrey Mr. Beard continued the State’s policy of inaction even though at that time of his tenure as Secretary that remedial measures existed that could have been implemented at reasonable cost and that implementing those measures would reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons

4 AER 747 4 AER 812 4 AER 813 4 AER 814 4 AER 815

2088, 2596, 2600, 2610, 2612

Beard, Jeffrey Mr. Beard personally participated in the failure to protect inmates from Valley Fever despite having the ability and responsibility as Secretary of CDCR to protect inmates from such risks.

4 AER 747 4 AER 812

2089, 2596

Beard, Jeffrey Mr. Beard was deliberately indifferent to inmates’ risk of infection.

4 AER 747 4 AER 814

2089, 2610

Beard, Jeffrey Mr. Beard is liable to all Plaintiffs that contracted the disease in 2013 or later, as he took office in late 2012 and, as Secretary, became responsible for inmate well-being at all prisons as of this date.

4 AER 747 2090

Beard, Jeffrey Mr. Beard failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants themselves were responsible for the increased risk that Plaintiffs faced

4 AER 785 4 AER 815

2255, 2613

Beard, Jeffrey Mr. Beard had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613

Beard, Jeffrey Mr. Beard did not transfer inmates away from the most dangerous prisons, did not identify inmates at high risk in the classification process, and consequently, continued sending inmates including Plaintiffs to endemic and hyper-endemic prisons without regard to susceptibility or risk.

4 AER 813 4 AER 814 4 AER 815

2603, 2609, 2611, 2613

Beard, Jeffrey Mr. Beard failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced

4 AER 814 4 AER 815

2604, 2612

Beard, Jeffrey Mr. Beard engaged in a pattern and practice of conduct since at 4 AER 814 2607,



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which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury.

4 AER 815 2611

PAUL BRAZELTON – PVSP WARDEN

Authority Brazelton, Paul

Mr. Brazelton was warden of PVSP in 2012 and 2013, Brazelton.

4 AER 566 4 AER 747

19, 2090

Brazelton, Paul

As warden, Mr. Brazelton was responsible for the policies and practices of the prison as well as PVSP’s operational decisions, and had direct authority over every CDCR employee at PVSP.

4 AER 747 4 AER 747

2090, 2092

Brazelton, Paul

Mr. Brazelton occupied positions of authority at PVSP in the five years before his tenure as warden and has worked at the prison since 1994.

4 AER 747 2091

Brazelton, Paul

Mr. Brazelton had the ability to exclude high risk inmates as they were transferred to his facility.

4 AER 749 2098

Brazelton, Paul

Mr. Brazelton was given the power to install ground cover and implemented remedial measures pursuant to the November 20, 2007, policy memorandum.

4 AER 750 2100

Brazelton, Paul

Mr. Brazelton had an independent power to transfer inmates out of PVSP, or prevent their transfer to PVSP, based on their safety needs pursuant to Title 15, sections 3379(a)(4), 3379(a)(9), 3379(a)(9)(F)(2) and 3379(a)(9)(G)(1), and to adopt policies and procedures to avoid threats to inmate safety

4 AER 746 2096

Brazelton, Paul

Mr. Brazelton acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Brazelton, Paul

Mr. Brazelton had sufficient knowledge to act on the conditions described in the Compliant as of 2007.

4 AER 747 2093

Brazelton, Paul

Mr. Brazelton knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 747 2093

Brazelton, Paul

Mr. Brazelton knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 747 2093



CC CITE

Brazelton, Paul

Mr. Brazelton knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 747 2093

Brazelton, Paul

Mr. Brazelton personally observed the health problems occurring in front of him.

4 AER 747 2093

Brazelton, Paul

Mr. Brazelton knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of high-risk groups, such as African-Americans, American Indians, and Asians as well as immune-compromised/immune-suppressed individuals and also recommended ground cover throughout the prison property.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about the January 2007 memorandum written by the warden that immediately preceded him, Mr. James Yates, which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates” and which directed prison officials at the time to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about the June 2007 “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations and was directed to all wardens at the time.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about the various lawsuits against Mr. Brazelton personally from 2012 onward in which inmates described themselves as at high risk of infection due to risk factors.

4 AER 748 2094

Brazelton, Paul

Mr. Brazelton knew about the Fresno Grand Jury reports of 2012-2013, and received or was aware of the previous annual versions of those reports.

4 AER 749 2095

Brazelton, Paul

Mr. Brazelton was aware of the Valley Fever problem before he assumed the position of Warden in 2012.

4 AER 749 2097

Brazelton, Paul

Mr. Brazelton was aware that certain groups were at higher risk of suffering more serious complications from it.

4 AER 749 2097



CC CITE

Brazelton, Paul

Mr. Brazelton knew about the increased risk of Valley Fever at Pleasant Valley State Prison, and knew that recommended measures could reduce that risk.

4 AER 787 2264

Brazelton, Paul

Mr. Brazelton was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Brazelton, Paul

Mr. Brazelton acquiesced to the 2007 exclusion policy and failed to exercise his independent authority to transfer and protect susceptible inmates; and failed to implement remedial measures such as ground cover.

4 AER 749 4 AER 813 4 AER 815

2096, 2599, 2600, 2603, 2611

Brazelton, Paul

Mr. Brazelton acquiesced to the state’s narrow 2007 exclusion policy.

4 AER 749 2096

Brazelton, Paul

Mr. Brazelton left hundreds of high-risk inmates exposed to the disease.

4 AER 749 4 AER 813 4 AER 814

2096, 2600, 2603, 2609

Brazelton, Paul

Mr. Brazelton refused to exercise his independent authority as warden to transfer inmates out for their safety.

4 AER 749 4 AER 813

2096, 2599

Brazelton, Paul

Mr. Brazelton failed to adopt policies and procedures to avoid threats to inmate safety, and failed to implement such policies to reduce inmates’ risk of contraction of Valley Fever.

4 AER 749 4 AER 813 4 AER 814

2096, 2599, 2600, 2603, 2609

Brazelton, Paul

Mr. Brazelton continued to fail to intervene to protect inmates from the known greater risk of infection even though was named as a defendant in lawsuits by inmates, served on him personally, which further informed him that certain groups of inmates were especially susceptible Valley Fever.

4 AER 749 4 AER 815

2099, 2611

Brazelton, Paul

Mr. Brazelton participated in the decision not to install ground cover or other remedial measures at the prison.

4 AER 750 4 AER 813 4 AER815

2100, 2600, 2611

Brazelton, Paul

Mr. Brazelton was personally responsible for the injuries sustained by inmates who contracted Valley Fever at PVSP from early 2012 onward.

4 AER 750 4 AER 814

2101, 2609

Brazelton, Paul

Mr. Brazelton is liable to all Plaintiffs that contracted Valley Fever at PVSP during his tenure from 2012-2013

4 AER 750 2102

Brazelton, Paul

Mr. Brazelton failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it

4 AER 785 4 AER 815

2255, 2613



CC CITE

causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

Brazelton, Paul

Mr. Brazelton had a duty and could have disclosed those facts but instead failed to disclose them to each Plaintiff who contracted the disease at PVSP during his tenure or thereafter.

4 AER 785 4 AER 815

2256, 2613

Brazelton, Paul

Mr. Brazelton had the authority, the ability and the means to reduce the risk of infection but each was deliberately indifferent to those risks and failed to take action to prevent or reduce the risk, causing Plaintiffs’ constitutional injuries

4 AER 812 4 AER 813

2595, 2603

Brazelton, Paul

Mr. Brazelton proximately and substantially caused significantly increased risk to each Plaintiff who later became infected, and failed to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 4 AER 813

2596, 2603

Brazelton, Paul

Mr. Brazelton failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Brazelton, Paul

Mr. Brazelton engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates, including Plaintiffs, incarcerated at locations of unreasonable risk of personal injury.

4 AER 814 2607

Brazelton, Paul

Mr. Brazelton knowingly and recklessly promulgated or continued a policy or practice of transferring inmates to unreasonably dangerous prisons without regard to their health

4 AER 814 2609, 2610

MATTHEW CATE – CDCR SECRETARY

Authority Cate, Matthew Mr. Cate was Secretary of the CDCR from 2008-2012. 4 AER 566

4 AER 750 21, 2103

Cate, Matthew Mr. Cate was responsible for the policies and practices of the CDCR.

4 AER 750 2104

Cate, Matthew Mr. Cate was responsible for operational decisions of the CDCR.

4 AER 750 2104

Cate, Matthew Mr. Cate had direct authority over every CDCR employee. 4 AER 750 2104 Cate, Matthew Mr. Cate had the authority as head of the Department of Adult 4 AER 752 2112



CC CITE

Institutions to have excluded from hyper-endemic prisons all inmates at risk of infection, including the identified higher-risk groups.

Cate, Matthew Mr. Cate had the authority and means to have ordered ground cover to be installed at the hyper-endemic prisons throughout his tenure.

4 AER 753 2113

Cate, Matthew Mr. Cate acted under color of state law in that he is a state employee, operated the state prisons, and carry out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Cate, Matthew Mr. Cate knew about the 2004 Kanan memorandum, which

identified high-risk groups, such as African-Americans, American Indians, and Asians.

4 AER 582 92

Cate, Matthew Mr. Cate had sufficient knowledge to act on the conditions described in the Compliant as of 2007.

4 AER 751 2105

Cate, Matthew Mr. Cate knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 751 2105

Cate, Matthew Mr. Cate knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 751 2105

Cate, Matthew Mr. Cate knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 751 2105

Cate, Matthew Mr. Cate knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons and also recommended ground cover throughout the prison property.

4 AER 751 2106

Cate, Matthew Mr. Cate knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’

4 AER 751 2106



CC CITE

memorandum and implement the CDHS recommendation for ground cover.

Cate, Matthew Mr. Cate knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates” and which directed him to personally respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 751 2106

Cate, Matthew Mr. Cate knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 751 2106

Cate, Matthew Mr. Cate knew about the November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations.

4 AER 751 2106

Cate, Matthew Mr. Cate knew about numerous lawsuits against Mr. Cate personally from 2007 onward in which inmates described themselves as high risk identified the basis of that risk.

4 AER 751 2106

Cate, Matthew Mr. Cate received the 2008-2009 Grand Jury report when it was released.

4 AER 752 2111

Cate, Matthew Mr. Cate was named as a defendant in numerous lawsuits by inmates in which they protested their contraction of Valley Fever.

4 AER 752 2112

Cate, Matthew Mr. Cate knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Cate, Matthew Mr. Cate was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Cate, Matthew Mr. Cate, as head of CDCR, adopted and implemented only the

narrow 2007 exclusion policy, which left hundreds of high-risk inmates exposed to the disease.

4 AER 752 4 AER 813 4 AER 814

2107, 2599, 2600, 2603, 2609

Cate, Matthew Mr. Cate failed to act to otherwise protect inmates from this risk.

4 AER 752 4 AER 812 4 AER 813

2107, 2595, 2599, 2600

Cate, Matthew Mr. Cate failed to act to implement recommended remedial measures.

4 AER 752 4 AER 812

2108, 2595,



CC CITE

4 AER 813 2600 Cate, Matthew Mr. Cate declined to adopt recommendations for remedial

measures existed that could have been implemented at reasonable cost and that implementing those measures would reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons.

4 AER 752 4 AER 812 4 AER 813 4 AER 814

2108, 2595, 2599, 2600, 2603, 2609

Cate, Matthew Mr. Cate gave his input, approval and consent, to then-Governor Schwarzenegger in submission of state budgets that included line items for construction, renovation, and improvement projects at the hyper-endemic prisons, specifically including extensive work at PVSP, but failed to request funds for the remedial measures recommended to address the Valley Fever epidemic.

4 AER 752 2110

Cate, Matthew Mr. Cate personally participated in the decision not to exclude these high risk inmates from hyper-endemic prisons throughout his tenure from 2008-2012.

4 AER 752 4 AER 813 4 AER 814 4 AER 815

2110, 2599, 2600, 2603, 2609, 2610, 2611

Cate, Matthew Mr. Cate personally participated in the decisions and policy not to install ground cover and other remedial measures that would have protected all inmates.

4 AER 753 2113

Cate, Matthew Mr. Cate personally participated in the failure to protect inmates from increased risk of Valley Fever

4 AER 753 4 AER 812

2114, 2595

Cate, Matthew Mr. Cate was deliberately indifferent to inmates’ risk of contracting Valley Fever.

4 AER 753 4 AER 812

2114, 2595

Cate, Matthew Mr. Cate was personally responsible for the injuries sustained by inmates who contracted Valley Fever at any of the hyper-endemic prisons from 2008 onward.

4 AER 753 4 AER 813

2114, 2600

Cate, Matthew Mr. Cate is liable to all named Plaintiffs that contracted the disease based on the inadequate policies and practices of the State from 2006 forward.

4 AER 753 4 AER 813

2115, 2600

Cate, Matthew Mr. Cate failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Cate, Matthew Mr. Cate had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613



CC CITE

Cate, Matthew Mr. Cate proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 2596

Cate, Matthew Mr. Cate failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Cate, Matthew Mr. Cate engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

JAMES HARTLEY – AVENAL WARDEN

Authority Hartley, James Mr. Hartley was the warden of Avenal State Prison (ASP) from

2007 through part of 2014. 4 AER 566 4 AER 753

22, 2116

Hartley, James Mr. Hartley was responsible for the policies and practices of the prison as well as for its operational decisions, and had direct authority over every employee at ASP.

4 AER 753 2117

Hartley, James Mr. Hartley had independent power to transfer inmates out of ASP, or prevent their transfer to ASP, based on their safety needs pursuant to Title 15, sections 3379(a)(4), 3379(a)(9), 3379(a)(9)(F)(2) and 3379(a)(9)(G)(1).

4 AER 755 2120

Hartley, James Mr. Hartley acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Hartley, James Mr. Hartley had sufficient knowledge to act on the conditions

described in the Compliant as of 2007. 4 AER 753 2118

Hartley, James Mr. Hartley knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to

4 AER 753 2118



CC CITE

inmates from the disease. Hartley, James Mr. Hartley knew about the elevated risk of infection faced by

inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 753 2118

Hartley, James Mr. Hartley knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 753 2118

Hartley, James Mr. Hartley himself observed the large number of individuals contracting the disease at his place of work.

4 AER 753 2118

Hartley, James Mr. Hartley knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons, and also recommended ground cover throughout the prison property.

4 AER 754 2119

Hartley, James Mr. Hartley knew about the January 2007 memorandum written by the warden of PVSP, Mr. James Yates, which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 754 2119

Hartley, James Mr. Hartley knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates” and which directed PVSP prison officials at the time to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”

4 AER 754 2119

Hartley, James Mr. Hartley knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 754 2119

Hartley, James Mr. Hartley knew about the November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations and was directed to all wardens at the time

4 AER 754 2119

Hartley, James Mr. Hartley knew about the lawsuits against Warden Hartley personally from 2007 onward in which inmates described

4 AER 754 2119



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themselves as high risk and described the basis of that risk. Hartley, James Mr. Hartley was aware of the Valley Fever problem in general

when he assumed the position of Warden in 2007. 4 AER 755 2121

Hartley, James Mr. Hartley was aware that certain groups were at higher risk of suffering more serious complications from it.

4 AER 755 2121

Hartley, James Mr. Hartley knew of the increased risk of Valley Fever at Avenal State Prison, and knew that recommended measures could reduce that risk.

4 AER 787 2265

Hartley, James Mr. Hartley was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Hartley, James Mr. Hartley acquiesced to the state’s narrow 2007 exclusion

policy, which left hundreds of high-risk inmates to catch the disease.

4 AER 755 4 AER 813 4 AER 814

2120, 2599, 2600, 2603, 2609

Hartley, James Mr. Hartley refused to exercise his independent authority as warden to transfer inmates for their safety.

4 AER 755 4 AER 812 4 AER 813

2120, 2595, 2599, 2600

Hartley, James Mr. Hartley failed to implement policies and procedures to avoid threats to inmate safety.

4 AER 755 4 AER 812 4 AER 813

2120, 2595, 2600

Hartley, James Mr. Hartley personally participated in decisions not to exclude these high risk inmates.

4 AER 755 2122

Hartley, James Mr. Hartley oversaw and implemented the narrow exclusion policy for approximately (7) years, during his tenure from 2007-2014.

4 AER 755 4 AER 813 4 AER 814 4 AER 815

2122, 2599, 2600, 2603, 2610, 2611

Hartley, James Mr. Hartley personally participated in the decisions not to install ground cover and implement other remedial measures that would have protected inmates.

4 AER 755 2123

Hartley, James Mr. Hartley personally participated in the failure to protect inmates from increased risk of Valley Fever.

4 AER 755 4 AER 812

2124, 2595

Hartley, James Mr. Hartley was deliberately indifferent to inmates’ risk of contracting Valley Fever.

4 AER 755 4 AER 812

2124, 2595

Hartley, James Mr. Hartley is personally responsible for the injuries sustained by inmates who contracted Valley Fever at Avenal State Prison

4 AER 755 4 AER 813

2124, 2600



CC CITE

from 2007 onward. Hartley, James Mr. Hartley is liable to all Plaintiffs that contracted Valley

Fever at ASP during his tenure from approximately 2004-2014. 4 AER 755 4 AER 813

2125, 2600

Hartley, James Mr. Hartley failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that the Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Hartley, James Mr. Hartley had a duty and could have disclosed those facts but instead failed to disclose them to Plaintiffs who contracted the disease at ASP during his tenure and thereafter.

4 AER 785 4 AER 815

2257, 2613

Hartley, James Mr. Hartley proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 2596

Hartley, James Mr. Hartley failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 2604

Hartley, James Mr. Hartley engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury.

4 AER 814 2607

SUSAN HUBBARD – DIRECTOR, DAI

Authority Hubbard, Susan

Ms. Hubbard was director of the Division of Adult Institutions, having served in that capacity at least through 2007 – 2009, and author of the 2007 CDCR “exclusion” policy that resulted in highly-susceptible inmates continuing to be housed at hyper-endemic prisons.

4 AER 566 4 AER 756

23, 2126

Hubbard, Susan

Ms. Hubbard was responsible for the policies and practices of DAI.

4 AER 756 2127

Hubbard, Ms. Hubbard was responsible for the operational decisions of 4 AER 756 2127



CC CITE

Susan DAI. Hubbard, Susan

Ms. Hubbard had authority over all employees in this DAI. 4 AER 756 2127

Hubbard, Susan

Ms. Hubbard acted under color of state law in that she was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Hubbard, Susan

Ms. Hubbard knew about the 2004 Kanan memorandum, which identified high-risk groups, such as African-Americans, American Indians, and Asians.

4 AER 582 92

Hubbard, Susan

Ms. Hubbard had sufficient knowledge to act on the conditions described in the Compliant as of 2007.

4 AER 756 2128

Hubbard, Susan

Ms. Hubbard knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 756 2128

Hubbard, Susan

Ms. Hubbard knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 756 2128

Hubbard, Susan

Ms. Hubbard knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 756 2128

Hubbard, Susan

Ms. Hubbard knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons and also recommended ground cover throughout the prison property.

4 AER 756 2129

Hubbard, Susan

Ms. Hubbard knew about January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 756 2129

Hubbard, Ms. Hubbard knew about the 2008-2009 Fresno County Grand 4 AER 756 2129



CC CITE

Susan Jury report which discussed the Valley Fever problem, and which referenced “high risk inmates” and which directed prison authorities to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

Hubbard, Susan

Ms. Hubbard knew about June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 756 2129

Hubbard, Susan

Ms. Hubbard knew about the November 11, 2007, policy memorandum she personally authored, which discusses the various CDHS recommendations from the January 2007 memorandum.

4 AER 756 2129

Hubbard, Susan

Ms. Hubbard was aware of the Valley Fever problem from the January, 2007 CDHS report, among other documents noted.

4 AER 757 2132

Hubbard, Susan

Ms. Hubbard was aware that certain groups were at higher risk of suffering more serious complications from it.

4 AER 757 2132

Hubbard, Susan

Ms. Hubbard knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Hubbard, Susan

Ms. Hubbard was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation

Hubbard, Susan

Ms. Hubbard adopted the narrow 2007 exclusion policy, which left hundreds of high-risk inmates to catch the disease.

4 AER 757 4 AER 813 4 AER 814

2130, 2599, 2600, 2603, 2609

Hubbard, Susan

Ms. Hubbard failed to act to otherwise protect inmates from this risk.

4 AER 757 4 AER 812 4 AER 813

2130, 2595, 2599, 2600

Hubbard, Susan

Ms. Hubbard co-authored the CDCR policy to exclude what she described as high-risk inmates from the endemic-area prisons - identified only a limited set of immune-compromised persons as high-risk.

4 AER 757 2131

Hubbard, Susan

Ms. Hubbard knowingly disregarded all of the reports, medical literature, findings, studies and general knowledge about Valley Fever that included other high risk groups, such as African-American, Filipino, Latinos, Indians, and other races,

4 AER 757 4 AER 812 4 AER 813

2131, 2595, 2600



CC CITE

persons over 55 years old. Hubbard, Susan

Ms. Hubbard personally participated in the decision not to exclude these high risk inmates by virtue of her role in writing the 2007 policy.

4 AER 757 4 AER 813 4 AER 814

2132, 2599, 2600, 2603, 2609

Hubbard, Susan

Ms. Hubbard ignored the CDHS recommendation to exclude high-risk inmates.

4 AER 757 2132

Hubbard, Susan

Ms. Hubbard personally participated in the decision not to install ground cover, which would have protected all inmates, by not expressly mandating this protocol in the 2007 policy memorandum she authored.

4 AER 757 4 AER 812 4 AER 813 4 AER 814

2132, 2595, 2599, 2600, 2603, 2609

Hubbard, Susan

By failing to establish in 2007 a policy excluding all at-risk, or higher-risk, inmates from the hyper-endemic prisons, Ms. Hubbard caused all such inmates subsequently housed at those facilities to face an increased risk of infection.

4 AER 758 4 AER 813 4 AER 814 4 AER 815

2133, 2599, 2600, 2603, 2609, 2610, 2611

Hubbard, Susan

Ms. Hubbard personally participated in the failure to protect inmates from increased risk of Valley Fever.

4 AER 758 4 AER 812

2134, 2595

Hubbard, Susan

Ms. Hubbard was deliberately indifferent to inmates’ risk of contracting Valley Fever.

4 AER 758 4 AER 812

2134, 2595

Hubbard, Susan

Ms. Hubbard is personally responsible for the injuries sustained by inmates who contracted Valley Fever at any of the hyper-endemic prisons from 2007 onward.

4 AER 758 4 AER 813

2134, 2600

Hubbard, Susan

Ms. Hubbard is liable to all named Plaintiffs that contracted the disease based on the inadequate policies and practices of the State from 2007 forward.

4 AER 758 4 AER 813

2135, 2600

Hubbard, Susan

Ms. Hubbard failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Hubbard, Susan

Ms. Hubbard had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613

Hubbard, Susan

Ms. Hubbard failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation

4 AER 814 2604



CC CITE

systems and other measures, or even warning inmates about the danger they faced.

Hubbard, Susan

Ms. Hubbard engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

DEBORAH HYSEN –

DEPUTY DIRECTOR, FACILITIES

Authority Hysen, Deborah

Ms. Hysen was the Chief Deputy Secretary of FPCM from at least 2006 until 2014

4 AER 566 4 AER 758

24, 2136

Hysen, Deborah

Ms. Hysen is the current Director of CDCR’s Office of Facility Planning, Construction and Management (FPCM).

4 AER 758 2136

Hysen, Deborah

Ms. Hysen, as the Deputy Chief and then as the senior executive of Facilities and Construction for CDCR, had the ability to act no later than 2007 to implement the recommended remedial measures at PVSP, ASP, or any of the hyper-endemic prisons.

4 AER 758 2137

Hysen, Deborah

Ms. Hysen acted under color of state law in that she was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Hysen, Deborah

Ms. Hysen had sufficient knowledge to act on the conditions described in the Compliant no later than 2007.

4 AER 758 2138

Hysen, Deborah

Ms. Hysen knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 758 2138

Hysen, Deborah

Ms. Hysen knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 758 2138

Hysen, Deborah

Ms. Hysen knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy

4 AER 758 2138



CC CITE

conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

Hysen, Deborah

Ms. Hysen knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons and also recommended ground cover throughout the prison property.

4 AER 759 2139

Hysen, Deborah

Ms. Hysen knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 759 2139

Hysen, Deborah

Ms. Hysen knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, and which referenced “high risk inmates” and which directed prison authorities to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 759 2139

Hysen, Deborah

Ms. Hysen knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 759 2139

Hysen, Deborah

Ms. Hysen knew about the November 11, 2007, policy memorandum she personally authored, which discusses the various CDHS recommendations from the January 2007 memorandum.

4 AER 759 2139

Hysen, Deborah

Ms. Hysen announced publically that her department was designing and implementing a full suite of remedial measures to protect inmates at the hyper-endemic prisons including PVSP and ASP from infection by Valley Fever.

4 AER 759 2140

Hysen, Deborah

Ms. Hysen was quoted in public news media regarding both the Valley Fever epidemic and her department’s plans to address it.

4 AER 759 2140

Hysen, Deborah

Ms. Hysen knew of the increased risk of Valley Fever in the hyperendemic prisons, and knew that recommended measures could reduce that risk.

4 AER 786 2263

Hysen, Deborah

Ms. Hysen was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595



CC CITE

Conduct/Causation Hysen, Deborah

Ms. Hysen did not act as the Deputy Chief and then as the senior executive of Facilities and Construction for CDCR, to implement the recommended remedial measures at PVSP, ASP, or any of the hyper-endemic prisons until 2013, when minimal soil-stabilization was finally attempted.

4 AER 758 4 AER 813 4 AER 814

2137, 2599, 2600, 2603, 2609

Hysen, Deborah

Ms. Hysen failed to implement any remedial measures until at least 2013.

4 AER 759 4 AER 812 4 AER 813

2140, 2595, 2600

Hysen, Deborah

Ms. Hysen has yet to complete implementing the recommended measures.

4 AER 759 2140

Hysen, Deborah

Ms. Hysen declined to implement the recommended remedial measures while knowing that inmates were at elevated risk of infection, and that certain identified groups were at even more extraordinary risk.

4 AER 760 4 AER 812 4 AER 813 4 AER 814 4 AER 815

2141, 2595, 2599, 2600, 2603, 2609, 2610, 2611

Hysen, Deborah

Ms. Hysen personally participated in the failure to protect inmates from increased risk of Valley Fever, was deliberately indifferent to inmates’ risk of contracting Valley Fever.

4 AER 760 4 AER 812 4 AER 814 4 AER 815

2142, 2595, 2610, 2611

Hysen, Deborah

Ms. Hysen is personally responsible for the injuries sustained by inmates who contracted Valley Fever at any of the hyper-endemic prisons from 2006 onward.

4 AER 760 4 AER 813

2142, 2600

Hysen, Deborah

Ms. Hysen is liable to all named Plaintiffs that contracted the disease based on the inadequate policies and practices of the State from 2006 forward.

4 AER 760 4 AER 813

2143, 2600

Hysen, Deborah

Ms. Hysen failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Hysen, Deborah

Ms. Hysen proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times

4 AER 812 2596



CC CITE

subsequent. Hysen, Deborah

Ms. Hysen failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Hysen, Deborah

Ms. Hysen engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

FELIX IGBINOSA – CMO, PVSP

Authority Igbinosa, Felix Dr. Igbinosa is the former medical director of Pleasant Valley

State Prison and served in that capacity from approximately 2005-2013.

4 AER 567 4 AER 760

25, 2144

Igbinosa, Felix Dr. Igbinosa was charged by Defendant Winslow on or about January 16, 2007, with “ensuring health care staff [at PVSP] are trained in and comply with DCHCS [Division of Correctional Health Care Services] policy for identifying, confirming, and reporting symptomatic or disseminated Coccidioidomycosis and be provided the reporting forms.” [D. Winslow, January 16, 2007, Memo to, inter alia, Chief Medical Officers, entitled “Coccidioidomycosis (Valley Fever) Identification and Reporting,” at p. 2.]

4 AER 762 2151

Igbinosa, Felix Dr. Igbinosa required that training regarding the medical issues identified in the Complaint was “mandatory,” and required that the training “must be conducted by Thursday, February 16, 2007.” [Ibid.]

4 AER 762 2151

Igbinosa, Felix Dr. Igbinosa decided the Second Level Response to appeals from inmates challenging their medical or other treatment for Valley Fever, including requests for transfer out of PVSP.

4 AER 762 2152

Igbinosa, Felix Dr. Igbinosa had independent authority as chief medical officer to transfer inmates for their safety based on his independent power to consider transferring inmates based on their medical needs pursuant to Title 15, sections 3379(a)(9), 3379(a)(9)(F)(2) and 3379(a)(9)(G)(1)

4 AER 763 2154

Igbinosa, Felix Dr. Igbinosa acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590



CC CITE

Knowledge Igbinosa, Felix Dr. Igbinosa had sufficient knowledge to act on the conditions

described in the Compliant as of 2005. 4 AER 760 2145

Igbinosa, Felix Dr. Igbinosa knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 760 2145

Igbinosa, Felix Dr. Igbinosa knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 760 2145

Igbinosa, Felix Dr. Igbinosa knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 760 2145

Igbinosa, Felix Dr. Igbinosa made weekly visits to PVSP’s various facilities, as required by California Code of Regulations, Title 15, section 3384, and noticed the vast areas of open dirt, blowing dust, and inmates walking around without protective masks, including the named PVSP Plaintiffs.

4 AER 761 2148

Igbinosa, Felix Dr. Igbinosa knew about the 2004 Kanan memorandum, which identified high-risk groups, such as African-Americans, American Indians, and Asians.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the January 2007 California Department of Health Services memorandum, widely circulated for the record, which recommended exclusion of such high-risk groups and also recommended ground cover throughout the prison property.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the January 2007 memorandum written by former warden James Yates, the warden while he was at PVSP, which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates” and which directed prison officials at PVSP respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the June 2007 report 4 AER 762 2153



CC CITE

“Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

Igbinosa, Felix Dr. Igbinosa knew about the September 9, 2007, news article in the Sacramento Bee, which reflected his statement that experts had made it clear that it was not safe to engage in additional construction at PVSP.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew about the lawsuits against Dr. Igbinosa personally from 2007 forward in which inmates described themselves as high risk and which entitled them to special consideration on a risk basis.

4 AER 762 2153

Igbinosa, Felix Dr. Igbinosa knew that remedial measures existed that could have been implemented at reasonable cost, and that implementing those measures would reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons, as reflected for example by the observation that such cover had reduced the incidence rates from one-half to two-thirds when employed at a military base.

4 AER 761 2146

Igbinosa, Felix Dr. Igbinosa was aware of the Valley Fever problem as witnessed before him at the institution where he practiced.

4 AER 764 2157

Igbinosa, Felix Dr. Igbinosa was aware that certain groups were at higher risk of suffering serious complications from it.

4 AER 764 2157

Igbinosa, Felix Dr. Igbinosa was named as a defendant in numerous lawsuits by inmates in which they protested their contraction of Valley Fever.

4 AER 764 2158

Igbinosa, Felix Dr. Igbinosa knew of the increased risk of Valley Fever at Pleasant Valley State Prison, knew that recommended measures could reduce that risk.

4 AER 787 2264

Igbinosa, Felix Dr. Igbinosa was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Igbinosa, Felix In and before November 2007, but after the prevalence of

Valley Fever was well known to officials of the CDCR, including Defendant Igbinosa, inmates were issued protective masks from medical staff at PVSP upon request.

4 AER 761 2146



CC CITE

Igbinosa, Felix In or about late 2007, Defendant Igbinosa implemented a policy restricting the issuance of masks to a limited group of inmates, and denying masks, even to inmates who requested one, to inmates who did not meet certain criteria.

4 AER 761 2146

Igbinosa, Felix Inmates who did not fit the stated criteria were not able to obtain protective masks, even for use in windy and dusty outdoor conditions at PVSP.

4 AER 761 2146

Igbinosa, Felix Dr. Igbinosa implemented this narrow policy for the issuance of protective masks even though the policy was in deliberate disregard of the significant medical needs of the ethnic, racial and immune-compromised groups identified by the California Department of Public Health and Safety as Valley Fever at-risk groups particularly susceptible to contracting coccidioidomycosis.

4 AER 761 2147

Igbinosa, Felix Dr. Igbinosa deliberately failed to modify the PVSP policy denying protective masks to inmates upon request unless they satisfied the limited policy criteria.

4 AER 761 2148

Igbinosa, Felix Dr. Igbinosa drafted and implemented a policy that systematically discontinued and delayed inmates’ pain management medications, and contrary to the reasonable medical needs of the inmates, including those suffering from Valley Fever.

4 AER 761 2149

Igbinosa, Felix Dr. Igbinosa personally instructed his medical staff at PVSP not to provide certain preventative and palliative treatments to inmates even though the denied medical treatment was medically necessary.

4 AER 762 2150

Igbinosa, Felix Dr. Igbinosa failed to adequately train PVSP staff in a timely fashion as directed by Defendant Winslow.

4 AER 762 2151

Igbinosa, Felix Dr. Igbinosa was personally involved in denying relief to inmates, including Plaintiffs, seeking additional medical care or other relief (e.g., transfer out of PVSP) for Valley Fever.

4 AER 762 2152

Igbinosa, Felix Dr. Igbinosa acquiesced to the state’s narrow 2007 exclusion policy, which left hundreds of high-risk inmates to catch the disease.

4 AER 763 4 AER 813 4 AER 814

2154, 2599, 2600, 2603, 2609

Igbinosa, Felix Dr. Igbinosa refused to exercise his independent authority as chief medical officer to transfer them for their safety based on his independent power to consider transferring inmates based on their medical needs pursuant to Title 15, sections 3379(a)(9), 3379(a)(9)(F)(2) and 3379(a)(9)(G)(1).

4 AER 763 4 AER 812 4 AER 813

2154, 2595, 2599, 2600

Igbinosa, Felix Dr. Igbinosa refused to exercise his independent authority as chief medical officer to adopt policies and procedures to avoid threats to inmate safety.

4 AER 763 4 AER 812 4 AER 813

2154, 2595, 2599, 2600



CC CITE

Igbinosa, Felix Dr. Igbinosa failed to act to implement recommended remedial measures.

4 AER 763 4 AER 812 4 AER 813

2155, 2595, 2600

Igbinosa, Felix Dr. Igbinosa personally participated in decisions not to exclude these high risk inmates despite his power and right, as chief medical officer over many years at PVSP, to take a variety of steps to ameliorate the problem.

4 AER 764 4 AER 812 4 AER 813 4 AER 814

2158, 2595, 2599, 2600, 2603, 2609

Igbinosa, Felix Dr. Igbinosa did not intervene, review nor reconsider the narrow exclusion policy, nor implement his own policies to transfer inmates under his regulatory power.

4 AER 764 4 AER 812 4 AER 813

2158, 2595, 2599, 2600

Igbinosa, Felix Dr. Igbinosa acquiesced in the failure to protect inmates from Valley Fever despite having the ability and responsibility as Chief Medical Officer of PVSP for many years to protect inmates from the unacceptable Valley Fever risks that they faced.

4 AER 764 4 AER 813 4 AER 814 4 AER 815

2159, 2599, 2600, 2603, 2609, 2610, 2611

Igbinosa, Felix Dr. Igbinosa did not adopt protective or precautionary policy to interrupt the mass contraction of the disease.

4 AER 764 4 AER 812

2159, 2595

Igbinosa, Felix Dr. Igbinosa did not authorize transfers on request, though it was within his power.

4 AER 764 2159

Igbinosa, Felix Dr. Igbinosa failed to take sufficient steps, such as providing masks to all who needed them, to reduce the incidence rate.

4 AER 764 2159

Igbinosa, Felix Dr. Igbinosa was deliberately indifferent to the health and safety of inmates in relation to the risk of contracting Valley Fever.

4 AER 764 4 AER 812

2159, 2595

Igbinosa, Felix Dr. Igbinosa is liable for all Plaintiffs that contracted Valley Fever at PVSP during his tenure, which was from approximately 2005-2013.

4 AER 764 4 AER 813

2160, 2600

Igbinosa, Felix Dr. Igbinosa failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Igbinosa, Felix Dr. Igbinosa had a duty and could have disclosed those facts but instead failed to disclose them to each Plaintiff who contracted the disease at PVSP during Dr. Igbinosa tenure or thereafter.

4 AER 785 4 AER 815

2256, 2613

Igbinosa, Felix Dr. Igbinosa proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by

4 AER 812 2596



CC CITE

failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

Igbinosa, Felix Dr. Igbinosa failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Igbinosa, Felix engaged in a pattern and practice of conduct since at least 2006 which they knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

SCOTT KERNAN – DIRECTOR, DAI

Authority Kernan, Scott Mr. Kernan was the Chief Deputy Secretary of Adult

Institutions (DAI) for CDCR from 2007 to 2014. 4 AER 567 4 AER 768

27, 2175

Kernan, Scott Mr. Kernan was the Deputy Director and Acting Director of DAI before becoming Chief Deputy Secretary.

4 AER 768 2175

Kernan, Scott Mr. Kernan and DAI are responsible for the operation of California’s adult prisons.

4 AER 768 2176

Kernan, Scott Mr. Kernan was the direct superior of Hubbard, co-author of the 2007 policy.

4 AER 769 2180

Kernan, Scott Mr. Kernan, as Chief Deputy Secretary of DAI, was in a position to directly influence and control the policy governing inmate safety at the prisons.

4 AER 770 2183

Kernan, Scott Mr. Kernan is listed as a lead official in the policy document itself.

4 AER 770 2183

Kernan, Scott Mr. Kernan, as chief deputy secretary of the branch of CDCR, was tasked with safety of the operation of the prisons.

4 AER 770 2185

Kernan, Scott Mr. Kernan acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge



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Kernan, Scott Mr. Kernan had sufficient knowledge to act on the conditions described in the Compliant by no later than 2007.

4 AER 768 2177

Kernan, Scott Mr. Kernan knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 768 2177

Kernan, Scott Mr. Kernan knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 768 2177

Kernan, Scott Mr. Kernan knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 768 2177

Kernan, Scott Mr. Kernan knew about the January 2007 California Department of Health Services memorandum, widely circulated, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons, and also recommended ground cover throughout affected prison properties.

4 AER 768 2178

Kernan, Scott Mr. Kernan knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 768 2178

Kernan, Scott Mr. Kernan knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, and which referenced “high risk inmates” and which directed prison authorities to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 768 2178

Kernan, Scott Mr. Kernan knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and recommended environmental mitigation measures to minimize further harm.

4 AER 768 2178

Kernan, Scott Mr. Kernan knew about the November 11, 2007, policy memorandum Kernan was personally provided, which discusses CDHS’s recommendations from the January 2007

4 AER 768 2178



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memorandum. Kernan, Scott Mr. Kernan was aware of the Valley Fever problem in general. 4 AER 769 2179 Kernan, Scott Mr. Kernan was aware that certain groups were at greater risk

of suffering more serious complications from the disease. 4 AER 769 2179

Kernan, Scott Mr. Kernan knew that that policy was deficient. 4 AER 769 2180 Kernan, Scott Mr. Kernan knew of the increased risk of Valley Fever in the

hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Kernan, Scott Mr. Kernan was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Kernan, Scott Mr. Kernan failed to act to protect susceptible inmates from the

known risk. 4 AER 769 4 AER 812 4 AER 813

2180, 2595, 2599, 2600

Kernan, Scott Mr. Kernan failed to act to require the hyper-endemic prisons to implement recommended remedial measures.

4 AER 769 4 AER 813 4 AER 814

2181, 2599, 2600, 2603, 2609

Kernan, Scott Mr. Kernan merely suggested wardens consider such steps, even though he knew at that time that the remedial measures could have been implemented at reasonable cost, that implementing those measures would reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons, and that making those remedial measures optional for the prisons was unlikely to result in their implementation.

4 AER 769 4 AER 812 4 AER 813

2181, 2595, 2600

Kernan, Scott Mr. Kernan approved implementation of the policy to exclude from the hyper-endemic prisons only certain medically immune-compromised persons, he knowingly disregarded reports, medical literature, findings, studies and general knowledge about Valley Fever that all showed categorically that other groups such as African-American, Filipino, Latinos, Indians, and other races, persons over 55 years old, were also at increased risk.

4 AER 770 4 AER 813 4 AER 814 4 AER 815

2182, 2599, 2600, 2603, 2609, 2610, 2611

Kernan, Scott Mr. Kernan failed to implement any of the other recommendations to minimize the Plaintiffs’ risks of infection.

4 AER 770 4 AER 812

2182, 2595

Kernan, Scott Mr. Kernan personally participated in the decision not to exclude these high risk inmates by virtue of his central oversight role of the 2007 policy, which ignored the CDHS

4 AER 770 2183



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recommendation to exclude high-risk inmates. Kernan, Scott Mr. Kernan, by not mandating this protocol in the 2007 policy

memorandum he directly oversaw, he personally participated in the decision not to install ground cover, which would have protected all inmates.

4 AER 770 2184

Kernan, Scott Mr. Kernan personally participated in and acquiesced in the failure to protect inmates from Valley Fever despite having central responsibility as the DAI representative directly overseeing the 2007 policy memorandum authored by Director Hubbard.

4 AER 770 4 AER 813

2185, 2600

Kernan, Scott Mr. Kernan failed to carry out his duty to protect inmates from the unacceptable Valley Fever risks that they faced.

4 AER 770 2185

Kernan, Scott Mr. Kernan was deliberately indifferent to the health and safety of inmates in relation to the risk of contracting Valley Fever, including Plaintiffs identified herein.

4 AER 770 4 AER 812

2185, 2595

Kernan, Scott Mr. Kernan is liable to all Plaintiffs that contracted Valley Fever as a result of the policies and practices implemented around 2007 and that subsequently governed the issue until 2013.

4 AER 770 4 AER 813

2186, 2600

Kernan, Scott Mr. Kernan failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Mr. Kernan proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 2596

Mr. Cate failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Mr. Cate engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607



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CHRIS MEYER – DIRECTOR, FACILITIES

Authority Meyer, Chris Mr. Meyer was the Senior Chief of Facility Planning,

Construction and Management from 2009 to 2014, succeeded by Defendant Hysen as head of that office. It was Meyer’s responsibility to employ best practices at the prisons to ensure their safety

4 AER 567 4 AER 771

28, 2187

Meyer, Chris Mr. Meyer had the authority, the ability and the means to have implemented remedial measures to reduce the risk of infection to all of the Plaintiffs.

4 AER 771 2187

Meyer, Chris Mr. Meyer could have required construction activities at the prisons to be carried out so as to minimize risks of Valley Fever exposure.

4 AER 771 2187

Meyer, Chris Mr. Meyer supervised Hysen in announcing publically that the department was designing and implementing a full suite of remedial measures to protect inmates at the hyper-endemic prisons including PVSP and ASP from infection by Valley Fever.

4 AER 772 2192

Meyer, Chris Mr. Meyer, as the senior executive of Facilities and Construction for CDCR, had the ability to act no later than 2007 to implement the recommended remedial measures at PVSP, ASP, or any of the hyper-endemic prisons.

4 AER 773 2198

Meyer, Chris Mr. Meyer acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Meyer, Chris Mr. Meyer knew that fully implemented environmental

mitigation measures could have reduced the risk to all of the Plaintiffs.

4 AER 771 2189

Meyer, Chris Mr. Meyer had sufficient knowledge to act on the conditions described in the Compliant as of 2007.

4 AER 771 2190

Meyer, Chris Mr. Meyer knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease

4 AER 771 2190

Meyer, Chris Mr. Meyer knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-

4 AER 771 2190



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compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases

Meyer, Chris Mr. Meyer knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions

4 AER 771 2190

Meyer, Chris Mr. Meyer knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons and also recommended ground cover throughout the prison property.

4 AER 771 2191

Meyer, Chris Mr. Meyer knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 771 2191

Meyer, Chris Mr. Meyer knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, and which referenced “high risk inmates” and which directed prison authorities to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 771 2191

Meyer, Chris Mr. Meyer knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 771 2191

Meyer, Chris Mr. Meyer knew about the November 11, 2007, policy memorandum she personally authored, which discusses the various CDHS recommendations from the January 2007 memorandum.

4 AER 771 2191

Meyer, Chris Mr. Meyer knew of the increased risks to all inmates housed at the hyper-endemic prisons, and in particular to inmates of the identified higher-risk racial, ethnic and age groups.

4 AER 773 2197

Meyer, Chris Mr. Meyer knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Meyer, Chris Mr. Meyer was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at

4 AER 812 2595



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elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

Conduct/Causation Meyer, Chris Mr. Meyer supervised Hysen in announcing publically that the

department was designing and implementing a full suite of remedial measures to protect inmates at the hyper-endemic prisons including PVSP and ASP from infection by Valley Fever, decided not to implement any of the announced remedial measures.

4 AER 772 4 AER 813 4 AER 814 4 AER 815

2192, 2599, 2600, 2603, 2609, 2610, 2611

Meyer, Chris Mr. Meyer declined to implement the recommended remedial measures even knowing that inmates were at elevated risk of infection.

4 AER 772 4 AER 812 4 AER 813

2193, 2595, 2599, 2600

Meyer, Chris Mr. Meyer was deliberately indifferent to the increased risk of serious harm to one or more named plaintiffs.

4 AER 772 4 AER 773 4 AER 812

2194, 2200, 2595

Meyer, Chris Mr. Meyer personally participated in the failure to reduce the risk to inmates.

4 AER 772 2195

Meyer, Chris Mr. Meyer failed to adequately supervise Hysen who was also responsible for implementing measures to reduce risk of infection.

4 AER 772 2196

Meyer, Chris Mr. Meyer did not implement the recommended remedial measures at PVSP, ASP, or any of the hyper-endemic prisons until 2013, when minimal soil-stabilization was finally attempted.

4 AER 773 2198, 2595, 2599, 2600, 2603, 2609

Meyer, Chris Mr. Meyer failed to act to reduce the risks faced by Plaintiffs although had the authority and the means to implement these measures.

4 AER 773 4 AER 812 4 AER 813

2199, 2595, 2599, 2600

Meyer, Chris Mr. Meyer is liable to all named Plaintiffs that contracted the disease based on the inadequate policies and practices of the State from 2007 forward

4 AER 773 4 AER 813

2201, 2600

Meyer, Chris Mr. Meyer failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Meyer, Chris Mr. Meyer proximately and substantially caused significantly 4 AER 812 2596



CC CITE

increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

Meyer, Chris Mr. Meyer failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Meyer, Chris Mr. Meyer engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

ROTHCHILD – DIRECTOR, CSU

Authority Rothchild Tanya

Ms. Rothchild is the former Chief of CDCR’s Classification Services Unit (CSU), the agency department in charge of transferring inmates to specific prisons, in a period of approximately 2008-2012.

4 AER 567 4 AER 773

29, 2202

Rothchild Tanya

Ms. Rothchild had the independent power to classify inmates to not be endorsed to dangerous prisons, based on their safety needs pursuant to Title 15, sections 3375(b) and to adopt policies and procedures to avoid such threats to inmate safety.

4 AER 774 2206

Rothchild Tanya

Ms. Rothchild had the legal right and power to reverse, adjust or expand the classification criteria so as to protect inmates from the contraction of lifelong diseases.

4 AER 775 2208

Rothchild Tanya

Ms. Rothchild acted under color of state law in that she was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Rothchild Tanya

Ms. Rothchild was aware of the epidemic of Valley Fever because she received August 3, 2006 and November 20, 2007 memoranda directed at all classification and parole

4 AER 773 2203



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representatives, which discussed the problem and set the exclusion policies.

Rothchild Tanya

Ms. Rothchild had sufficient knowledge to act on the conditions described in the Compliant as of the beginning of her tenure at CSU in 2008.

4 AER 773 2204

Rothchild Tanya

Ms. Rothchild knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease

4 AER 773 2204

Rothchild Tanya

Ms. Rothchild knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases

4 AER 773 2204

Rothchild Tanya

Ms. Rothchild knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions

4 AER 773 2204

Rothchild Tanya

Ms. Rothchild knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of such high-risk groups and also recommended ground cover throughout the prison property and which was closely tied to the two policy memoranda circulated to all CSU agents.

4 AER 774 2205

Rothchild Tanya

Ms. Rothchild knew about the January 2007 memorandum written by James Yates, which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 774 2205

Rothchild Tanya

Ms. Rothchild knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates” and which directed prison officials at the time to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 774 2205

Rothchild Tanya

Ms. Rothchild knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 774 2205

Rothchild Tanya

Ms. Rothchild was aware of the Valley Fever problem in general before she became the head of the CSU and she was also aware that certain groups were at higher risk of suffering

4 AER 775 2207



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more serious complications from it. Rothchild Tanya

Ms. Rothchild knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Rothchild Tanya

Ms. Rothchild was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Rothchild Tanya

Ms. Rothchild acquiesced to the state’s narrow 2007 exclusion policy, which left hundreds of high-risk inmates to catch the disease.

4 AER 774 4 AER 813 4 AER 814

2206, 2599, 2600, 2603, 2609

Rothchild Tanya

Ms. Rothchild refused to exercise her independent authority as head of the classification services unit to significantly reduce the risk of Valley Fever to such inmates.

4 AER 774 4 AER 812 4 AER 813

2206, 2595, 2599, 2600

Rothchild Tanya

Ms. Rothchild personally participated in decisions not to endorse inmates away from dangerous prisons by considering their high risk susceptibility to Valley Fever in the classification process during her tenure.

4 AER 775 4 AER 813 4 AER 814 4 AER 815

2208, 2599, 2600, 2603, 2609, 2610, 2611

Rothchild Tanya

Ms. Rothchild created and continued policies that authorized the transfer of high-risk and other inmates to the hyper-endemic prisons, without regard to those inmates’ susceptibility to infection.

4 AER 775 4 AER 813 4 AER 814 4 AER 815

2209, 2599, 2600, 2603, 2609, 2610, 2611

Rothchild Tanya

Ms. Rothchild failed to adequately supervise subordinates who were responsible for individual classification and transfer decisions that exposed Plaintiffs to the risk of infection by virtue of transfer to hyperendemic prisons.

4 AER 775 2210

Rothchild Tanya

Ms. Rothchild failed to act to reduce the risks faced by Plaintiffs.

4 AER 775 4 AER 812

2211, 2595

Rothchild Tanya

Ms. Rothchild was deliberately indifferent to the increased risk of harm these Plaintiffs faced, causing their constitutional injuries.

4 AER 775 4 AER 812

2211, 2595

Rothchild Ms. Rothchild is liable to all named Plaintiffs that contracted 4 AER 775 2212,



CC CITE

Tanya the disease based on the inadequate transfer policies and practices of the State from 2008 forward.

4 AER 813 2600

Rothchild Tanya

Ms. Rothchild failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Rothchild Tanya

Ms. Rothchild proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 2596

Rothchild Tanya

Ms. Rothchild failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Rothchild Tanya

Ms. Rothchild engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

ARNOLD SCWARZENEGGER – GOVERNOR

Authority Schwarzng’r, Arnold

Governor Schwarzenegger is the former Governor of California, having acted in that position from 2003 through 2011.

4 AER 568 4 AER 779

31, 2225

Schwarzng’r, Arnold

Governor Schwarzenegger was ultimately responsible for the policies and practices of the State of California, and had direct authority over every state employee.

4 AER 779 2226


Governor Schwarzenegger acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590



CC CITE

Knowledge Schwarzng’r, Arnold

Governor Schwarzenegger received the 2004 Kanan Memo and was familiar with its conclusions that inmates of identified ethnic, racial, age, and medical status were at increased risk from Valley Fever.

4 AER 582 92


Governor Schwarzenegger had sufficient knowledge to act on the conditions described in the Compliant as of 2007.

4 AER 779 2227


Governor Schwarzenegger knew about the prevalence of Valley Fever in the locations of the hyper-endemic prisons and the serious risks to inmates from the disease.

4 AER 779 2227


Governor Schwarzenegger knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 779 2227


Governor Schwarzenegger knew about the need for remedial measures to address and reduce the risk of Valley Fever, such as landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 779 2227


Governor Schwarzenegger knew about the informational briefing from a 2005 prisoners’ rights group, Prison Movement, sent directly to Governor Schwarzenegger that he would have received, describing the threat posed by Valley Fever, and especially its threat to susceptible groups including African-Americans, Filipinos, elderly inmates and the immune-compromised.

4 AER 780 2228


Governor Schwarzenegger knew about the January 2007 California Department of Health Services memorandum, which recommended exclusion of such high-risk groups and also recommended ground cover throughout the prison property.

4 AER 780 2228


Governor Schwarzenegger knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover.

4 AER 780 2228


Governor Schwarzenegger knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, referenced “high risk inmates,” and which directed prison officials to respond to a recommendation to look for

4 AER 780 2228



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ways to “minimize the threat of Valley Fever”. Schwarzng’r, Arnold

Governor Schwarzenegger knew about the June 2007 report “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 780 2228


Governor Schwarzenegger knew about the November 11, 2007, policy memorandum authored by Susan Hubbard, which discussed the various CDHS recommendations about exclusion and remediation.

4 AER 780 2228


Governor Schwarzenegger knew that construction presented particular danger to prisoners by acknowledging the reporter’s question with an answer, and by overruling those concerns.

4 AER 781 2230


Governor Schwarzenegger knew of the increased risk of Valley Fever in the hyperendemic prisons, and knew that recommended measures could reduce that risk.

4 AER 786 2263


Governor Schwarzenegger was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Schwarzng’r, Arnold

Governor Schwarzenegger announced in a 2007 press conference that the State’s policy and practice of transferring inmates to serve their sentences in Pleasant Valley State Prison would continue unabated, and that he intended to house even more inmates there in the future by increasing construction pursuant to AB900.

4 AER 780 2229


Governor Schwarzenegger brushed off a specific question about inmate safety due to Valley Fever when specifically asked about it by a reporter, a question phrased as: “there are a lot of experts who are saying that if you go ahead with the construction program at some of these prisons, the infill construction program, it’s going to lead to more inmates and staff members getting sick and possibly dying. Do you need to adjust the infill component of AB 900?” Schwarzenegger responded: “We will go ahead and build.”

4 AER 780 2229


Governor Schwarzenegger knew about risks and danger, and reflected his deliberate indifference to, were not just the general risk of Valley Fever at the prisons but the risk that more construction would increase exposure to Valley Fever – the very opposite of the remedial measures recommended by

4 AER 781 2230



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experts to avoid broadcasting the spores found in the soils in the hyperendemic region.


Governor Schwarzenegger, as the chief executive of the State of California, adopted or acquiesced to a narrow 2007 exclusion policy, which left hundreds of high-risk inmates to catch the disease.

4 AER 781 2231


Governor Schwarzenegger prepared and approved state budgets for 2006 through 2011. These budgets included bold new construction initiatives entailing massive expenditures at California prisons.

4 AER 781 2232


Governor Schwarzenegger failed to request, budget or appropriate a single dollar for Valley Fever prevention and remedial measures at the prisons and instead pressed forward with construction projects that created an unacceptable risk to Plaintiffs.

4 AER 781 2232


Governor Schwarzenegger engaged in additional and continuing acts of deliberate indifference that further increased the excessive risk faced by these Plaintiffs.

4 AER 781 2232


Governor Schwarzenegger either personally ratified or personally acquiesced in the failure to protect inmates from Valley Fever despite having the ability and responsibility as Governor to protect state residents, including inmates, from the unacceptable health risks that they faced.

4 AER 781 4 AER 813 4 AER 814 4 AER 815

2233, 2599, 2600, 2603, 2609, 2610, 2611


Governor Schwarzenegger was deliberately indifferent to the health and safety of inmates in relation to the risk of contracting Valley Fever, including Plaintiffs.

4 AER 781 4 AER 812

2233, 2595


Governor Schwarzenegger is liable with respect to all Plaintiffs that contracted Valley Fever as a result of the policies and practices implemented around 2007 and that subsequently governed the issue until 2013.

4 AER 782 4 AER 813

2234, 2600


Governor Schwarzenegger failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613


Governor Schwarzenegger had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613

Schwarzng’r, Governor Schwarzenegger proximately and substantially 4 AER 812 2596



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Arnold caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.


Governor Schwarzenegger failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612


Governor Schwarzenegger engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

TERESA SCHWARTZ – DIRECTOR, DAI

Authority Schwartz, Teresa

Ms. Schwartz is the former Associate Director of Adult Institutions at CDCR and held this position as of January, 2007 when the recommendations and policy decisions about the Valley Fever epidemic were being made. Before then, she was a warden at Vacaville in 2004 and an Associate Director of Reception at CDCR from 2005-2006.

4 AER 568 4 AER 776

30, 2213

Schwartz, Teresa

Ms. Schwartz held a position and title to correct Mr. Yates’ assertion that ground cover was not an option. She had the authority to overrule his decision as the party that Mr. Yates directly advised with his positions on the CDH recommendations, and as an Associate Director of DAI.

4 AER 778 2222

Schwartz, Teresa

Ms. Schwartz, as an Associate Director of the Department of Adult Institutions, was given the ability, and charged with the responsibility, to protect inmates from the unacceptable health risks that they faced.

4 AER 778 2223

Schwartz, Teresa

Ms. Schwartz acted under color of state law in that she was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge



CC CITE

Schwartz, Teresa

Ms. Schwartz had sufficient knowledge to act on the conditions described in the Compliant by January 2007.

4 AER 776 2214

Schwartz, Teresa

Ms. Schwartz knew about the elevated risk of infection faced by inmates in various ethnic and racial groups, including African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons such as those taking medication for chronic arthritis and other diseases.

4 AER 776 2214

Schwartz, Teresa

Ms. Schwartz knew about the need for remedial measures to address and reduce the risk of Valley Fever, including landscaping, paving, soil stabilization, limiting and strictly controlling excavation and soil-disturbing activities at the prisons, limiting inmate exposure outdoors during windy conditions, and providing respiratory protection for inmates who worked outdoors or went out under adverse conditions.

4 AER 776 2214

Schwartz, Teresa

Ms. Schwartz knew about the January 2007 California Department of Health Services memorandum, widely circulated, which recommended exclusion of African Americans, Filipinos and other Asians, Hispanics, and American Indians, as well as elderly inmates and immune-compromised or immune-suppressed persons, and also recommended ground cover throughout the prison property.

4 AER 776 2215

Schwartz, Teresa

Ms. Schwartz knew about the January 2007 memorandum written by former warden James Yates which considered whether to relocate the high risk groups mentioned in the CDHS’ memorandum and implement the CDHS recommendation for ground cover written directly to her.

4 AER 776 2215

Schwartz, Teresa

Ms. Schwartz knew about the 2008-2009 Fresno County Grand Jury report which discussed the Valley Fever problem, and which referenced “high risk inmates” and which directed prison authorities to respond to a recommendation to look for ways to “minimize the threat of Valley Fever”.

4 AER 776 2215

Schwartz, Teresa

Ms. Schwartz knew about Dr. Winslow’s widely-circulated June 2007 “Recommendations for Coccidioidomycosis Mitigation in Prisons in the Hyperendemic Areas of California,” which suggested the diversion and relocation of high risk inmates and contained a myriad of environmental suggestions to minimize further harm.

4 AER 776 2215

Schwartz, Teresa

Ms. Schwartz knew about the November 11, 2007, policy memorandum she was provided as an associate director, which discusses the various CDHS recommendations from its January 2007 memorandum.

4 AER 776 2215

Schwartz, Teresa

Ms. Schwartz knew at that time that remedial measures existed that could have been implemented at reasonable cost, and that

4 AER 777 2218



CC CITE

implementing those measures could reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons.

Schwartz, Teresa

Ms. Schwartz was aware of the Valley Fever problem in general by her receipt of Yates’ January 2007 memo.

4 AER 778 2220

Schwartz, Teresa

Ms. Schwartz was aware that certain groups were at higher risk of suffering more serious complications from it based on its discussion of CDH’s underlying recommendations at that time, as well as from other sources.

4 AER 778 2220

Schwartz, Teresa

Ms. Schwartz knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Schwartz, Teresa

Ms. Schwartz was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Schwartz, Teresa

Although Ms. Schwartz was aware that CDH had made recommendations about exclusion for high risk inmates she adopted Warden Yates’ recommendation to only exclude based on certain medical criteria, which was a much narrower policy, and left hundreds of high-risk inmates at PVSP to catch the disease.

4 AER 777 4 AER 813 4 AER 814

2216, 2599, 2600, 2603, 2609

Schwartz, Teresa

Ms. Schwartz failed to act to protect inmates from the disease by adopting the overly narrow policy.

4 AER 777 4 AER 812 4 AER 813

2216, 2595, 2599, 2600

Schwartz, Teresa

Ms. Schwartz failed to act to implement recommended remedial measures by CDH.

4 AER 777 4 AER 812 4 AER 813

2217, 2595, 2600

Schwartz, Teresa

Ms. Schwartz declined to adopt remedial measures that could have been implemented at reasonable cost, and knew that implementing those measures could reduce the risk to inmates who were housed at PVSP or any of the hyper-endemic prisons.

4 AER 778 2219

Schwartz, Teresa

Ms. Schwartz disregarded the CDH’s recommendation on ground cover and remedial measures.

4 AER 778 2219

Schwartz, Teresa

Ms. Schwartz personally participated in the decision not to exclude these high risk inmates by virtue of her decision to ignore the CDHS recommendation to exclude high-risk inmates and instead adopt Yates’ recommendation which only addressed high-risk medical inmates.

4 AER 778 4 AER 813 4 AER 814

2221, 2599, 2600, 2603, 2609

Schwartz, Ms. Schwartz was in a direct position to challenge Mr. Yates’ 4 AER 778 2221



CC CITE

Teresa decision that ignored exclusion criteria based on high risk categories tracing to race and national origin, and if she so desired, to overrule his decision in order to carry out her fundamental purpose to guarantee the safety of the prisons and the persons housed and employed within them.

Schwartz, Teresa

Ms. Schwartz personally participated in the decision not to install ground cover, which would have protected all inmates and staff, by rejecting this option as did Mr. Yates.

4 AER 778 4 AER 812 4 AER 813 4 AER 814

2222, 2595, 2599, 2600, 2603, 2609

Schwartz, Teresa

Ms. Schwartz acquiesced to his position in this regard, despite the encouraging statistics reported by CDHS about the effectiveness of ground cover at a military base, and thereby failed to protect inmates from Valley Fever.

4 AER 778 4 AER 813 4 AER 814 4 AER 815

2222, 2599, 2600, 2603, 2609, 2610, 2611

Schwartz, Teresa

Ms. Schwartz did not act to intervene in this life threatening emergency, because, based on all of the above circumstances reflecting her knowledge of the problem, and her lack of action, to assure inmate safety, she was deliberately indifferent to the health and safety of inmates at PVSP, and all hyperendemic prisons, including Plaintiffs.

4 AER 778 4 AER 812

2223, 2595

Schwartz, Teresa

Ms. Schwartz is liable to all Plaintiffs that contracted Valley Fever as a result of the policies and practices implemented around 2007 and that subsequently governed the issue until 2013.

4 AER 779 4 AER 813

2224, 2600

Schwartz, Teresa

Ms. Schwartz failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Schwartz, Teresa

Ms. Schwartz had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613

Schwartz, Teresa

Ms. Schwartz proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue

4 AER 812 2596



CC CITE

unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

Schwartz, Teresa

Ms. Schwartz failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612, 2613

Schwartz, Teresa

Ms. Schwartz engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607

DWIGHT WINSLOW –

CA STATE MEDICAL DIRECTOR

Authority Winslow, Dwight

Mr. Winslow was the former Chief Medical Director for CDCR from approximately 2005 through 2014, and co-authored the 2007 exclusion policy.

4 AER 568 4 AER 782

32, 2235

Winslow, Dwight

Mr. Winslow had the authority and the power to issue a definitive policy excluding all high risk inmates from these locations, and insisting on implementation of the recommended environmental remedial measures to further reduce the risk.

4 AER 783 2240

Winslow, Dwight

Mr. Winslow acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Winslow, Dwight

Mr. Winslow received the 2004 Kanan Memo and was familiar with its conclusions that inmates of identified ethnic, racial, age, and medical status were at increased risk from Valley Fever.

4 AER 782 2236

Winslow, Dwight

Mr. Winslow informed of this through the California Department of Public Health information memorandum dated January 11, 2007, “Recommendations for Coccidioidomycosis Mitigation in Prisons in Hyperendemic Areas of California.”

4 AER 782 2237

Winslow, Dwight

Mr. Winslow knew of DPH recommendations in 2007 that concluded that exclusion of all of these high-risk inmates was “the most effective method to decrease risk [of Valley Fever infections].” specifically referenced them when he wrote in the

4 AER 782 2238



CC CITE

2007 CDCR policy: “The California Department of Health Services (DHS) worked with California Department of Corrections and Rehabilitation (CDCR) staff in analyzing the problem and in assisting in designing an approach to mitigate the effects of the organism that causes cocci or ‘Valley Fever.’ ”

Winslow, Dwight

Mr. Winslow knew that this policy would expose inmates including the Plaintiffs in this action to an increased risk of harm.

4 AER 783 2241

Winslow, Dwight

Mr. Winslow knew and acknowledged that dust control measures would reduce Plaintiffs’ risk of contracting Valley Fever, his 2007 policy suggested only that prisons “consider increasing ground cover throughout their property.”

4 AER 783 2242

Winslow, Dwight

Mr. Winslow knew of the increased risk of Valley Fever in the hyperendemic prisons, knew that recommended measures could reduce that risk.

4 AER 786 2263

Winslow, Dwight

Mr. Winslow was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Winslow, Dwight

Mr. Winslow’s 2007 CDCR policy decision was to divert only a certain narrowly-defined subset of medically-compromised inmates from the hyper-endemic prisons, despite DHS’s recommendation to divert all high-risk inmates based on the identified criteria, and his own express recognition that racial factors – Asian, Blacks and Hispanics, notably – increased the susceptibility of these inmates to the disseminated form of the disease.

4 AER 782 4 AER 813 4 AER 814

2239, 2599, 2600, 2603, 2609

Winslow, Dwight

Mr. Winslow’s 2007 policy continued to allow members of high-risk ethnic and racial groups to be housed at prisons where the risk of infection was known to be greatly increased.

4 AER 783 4 AER 813 4 AER 814 4 AER 815

2240, 2599, 2600, 2603, 2609, 2610, 2611

Winslow, Dwight

Mr. Winslow’s policy decision of excluding all high risk inmates from these locations, and insisting on implementation of the recommended environmental remedial measures required neither of these critical precautionary steps.

4 AER 783 4 AER 812 4 AER 813 4 AER 814

2240, 2595, 2599, 2600, 2603, 2609

Winslow, Mr. Winslow had the ability and the means to have reduced or 4 AER 783 2241



CC CITE

Dwight prevented that risk, but chose not to do so and was deliberately indifferent to Plaintiffs’ health increased risk of harm.

Winslow, Dwight

Mr. Winslow could have made dust control measures mandatory and thereby reduced Plaintiffs’ risk of infection, but he chose not to do so.

4 AER 783 2242

Winslow, Dwight

Mr. Winslow personally participated in the decision not to mandate the installation of ground cover or other dust control measures at the prisons, measures which would have protected all inmates resident at those facilities from 2007 onward.

4 AER 783 2243

Winslow, Dwight

Mr. Winslow was deliberately indifferent to the risks of infection faced by inmates.

4 AER 783 4 AER 812

2243, 2595

Winslow, Dwight

Mr. Winslow is liable with respect to all Plaintiffs that contracted Valley Fever as a result of the policies and practices implemented around 2007 and that subsequently governed the issue until 2013.

4 AER 783 4 AER 813

2244, 2600

Winslow, Dwight

Mr. Winslow failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Winslow, Dwight

Mr. Winslow had a duty and could have disclosed those facts but instead failed to disclose them or to set policy or take action to require that disclosure, to all Plaintiffs within CDCR at all times during these Defendants’ tenure and thereafter.

4 AER 786 4 AER 815

2258, 2613

Winslow, Dwight

Mr. Winslow proximately and substantially caused significantly increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

4 AER 812 2596

Winslow, Dwight

Mr. Winslow failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Winslow, Dwight

Mr. Winslow engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607



CC CITE

JAMES YATES – WARDEN PVSP

Authority Yates, James Mr. Yates was the former warden of Pleasant Valley State

Prison and is believed to have occupied that position from at least 2005 until 2011.

4 AER 568 4 AER 784

33, 2245

Yates, James Mr. Yates was authorized to transfer of inmates to the prison or to protect such inmates located there, during his tenure and afterward, though he had the power to do so pursuant to Title 15, § 3375(b), which allowed him to consider risk to an inmate’s health, among other considerations, in accepting an inmate for transfer.

4 AER 784 2249

Yates, James Mr. Yates acted under color of state law in that he was a state employee, operated the state prisons, and carried out such policies and practices under the authority of California statute, regulation, and policy, to control Plaintiffs’ lives, prison housing location and prison housing conditions.

4 AER 811 2590

Knowledge Yates, James Mr. Yates was quotes in the New York Times in 2007

regarding the Valley Fever epidemic, and stated that inmates can contract the disease by breathing the spores from the air as they “walk around out there.”

4 AER 586 117

Yates, James Mr. Yates was aware of the epidemic of Valley Fever occurring at his prison throughout this time, or at least since August 2006, because he was copied on and received at the time an August 3, 2006 memorandum directed at all wardens which discussed the problem and which set the original exclusion policy.

4 AER 784 2246

Yates, James Mr. Yates was apprised of the need to exclude high risk inmates by virtue of his receipt of a January 12, 2007 California Department of Health memorandum, which recommended that high risk groups, such as African-Americans and Filipinos, be excluded from the area, because he responded to it.

4 AER 784 2247

Yates, James Mr. Yates was aware of the Valley Fever problem since the start of his tenure at Warden.

4 AER 784 2252

Yates, James Mr. Yates was aware that certain groups were at higher risk of suffering more serious complications from it no later than January 2007.

4 AER 784 2252

Yates, James Mr. Yates knew of the increased risk of Valley Fever at Pleasant Valley State Prison, knew that recommended measures could reduce that risk.

4 AER 787 2264



CC CITE

Yates, James Mr. Yates was aware that inmates housed at the hyper-endemic prisons faced an increased risk of serious harm from infection by the coccidoides spores known to be present at elevated levels there, and knew that the risk at specific prisons and for specific groups was even greater.

4 AER 812 2595

Conduct/Causation Yates, James Mr. Yates ignored the request to exclude certain racial groups

and instead only commented that “PVSP has identified inmates that are high risk due to pulmonary conditions and heavily immunosuppressed patients.” He ignored the issue of exclusion by other criteria, such as by racial composition

4 AER 784 4 AER 813 4 AER 814

2248, 2599, 2600, 2603, 2609

Yates, James Mr. Yates failed to adopt policies or practices to avoid the transfer of inmates to the prison or to protect such inmates located there, during his tenure and afterward, though he had the power to do so pursuant to Title 15, § 3375(b), which allowed him to consider risk to an inmate’s health, among other considerations, in accepting an inmate for transfer.

4 AER 784 4 AER 813 4 AER 814 4 AER 815

2249, 2599, 2600, 2603, 2609, 2610, 2611

Yates, James Mr. Yates failed to act to implement recommended remedial measures at PVSP. One of the recommendations that would have protected all such inmates was ground cover throughout the prison property.

4 AER 784 2250, 2251

Yates, James Mr. Yates personally participated in the decision not to exclude these high risk inmates.

4 AER 784 2252

Yates, James Mr. Yates personally participated in the decision not to install ground cover, which would have protected all inmates.

4 AER 784 2252

Yates, James Mr. Yates was deliberately indifferent to the health and safety of all inmates at PVSP, including Plaintiffs.

4 AER 784 4 AER 812

2252, 2595

Yates, James Mr. Yates is liable with respect to all Plaintiffs that contracted Valley Fever at PVSP from 2007 to the present, as his prison policies continue to affect inmates transferred to PVSP even after his departure in or about 2012.

4 AER 785 4 AER 813

2253, 2600

Yates, James Mr. Yates failed to disclose to Plaintiffs the risk factors for the disease, the likelihood of exposure, the common symptoms and progress of the disease, the seriousness of the injuries it causes, the dangerous local conditions that increased Plaintiffs’ likelihood of contracting the disease, and the fact that Defendants were responsible for the increased risk that Plaintiffs faced.

4 AER 785 4 AER 815

2255, 2613

Yates, James Mr. Yates had a duty and could have disclosed those facts but instead failed to disclose them to each Plaintiff who contracted the disease at PVSP during his tenure or thereafter.

4 AER 785 2256

Yates, James Mr. Yates proximately and substantially caused significantly 4 AER 812 2596



CC CITE

increased risk to each Plaintiff who later became infected by failure to implement protective remedial measures throughout their tenure, as well as at any time after their tenure and prior to the dates each Plaintiff herein became infected, allowed the dangerous conditions at the prison to continue unabated and proximately and substantially caused those Plaintiffs to be exposed to a significantly greater risk of exposure at all times subsequent.

Yates, James Mr. Yates failed to authorize and implement measures to reduce the risk at these prisons by providing ground cover, implementing soil stabilization, installing protective ventilation systems and other measures, or even warning inmates about the danger they faced.

4 AER 814 4 AER 815

2604, 2612

Yates, James Mr. Yates engaged in a pattern and practice of conduct which he knew would place and keep California prison inmates including Plaintiffs incarcerated at locations of unreasonable risk of personal injury

4 AER 814 2607


APPENDIX E



APPENDIX E

PRO PER PRISONER VALLEY FEVER CLAIMS

NO CASE CASE NO. FACTS NOTES

2006 CASES

1. Walker v. United States

CV F 02 5801 AWI LJO P.

(E.D. Cal. Oct 04, 2006)

Walker is prisoner at Taft Correction Institution. Events allegedly occurred at TCI while incarcerated. Alleges defendants knowingly exposed him to fungus known as VF by transferring him to TCI and then failed to properly diagnose him and treat him for his condition. Arrived at TCI in 12/1999.

Adopted findings and recommendations in part, dismissing claims, and referring action to magistrate judge.

2007 CASES

2. Moreno v. Yates 1:07-cv-1404-DGC

2010 WL 1223131

E.D. Cal. Mar. 24, 2010

Alleged Defendants allowed him to be housed at PVSP even while knowing that PVSP contained fungus spore that causes VF.

Defendant’s motion for summary judgment is granted. Dismissed for failure to address contention that the risk of Valley Fever to the particular plaintiff was insubstantial. No evidence that Moreno was at any excessive risk. Failure to meet burden showing that risk is not one that today’s society chooses to tolerate.

3. Widby v. Lewis 2007 WL 528766

No. CF-F-04-6738 AWI

DLB P

Housed at PVSP. Alleged deliberate indifference to serious medical needs. Became ill and Diagnosed with VF on 9/2003.

F&Rs recommending defendant’s motion for summary judgment be denied in part and granted in part. If plaintiff was suffering from severe symptoms which he


NO CASE CASE NO. FACTS NOTES alleges, defendant’s failure to summon medical care, despite observing plaintiff’s suffering, may rise to the level of an Eighth Amendment violation.

2008 CASES

4. Thurston v. Schwarzenegger

No. 1:08–cv–00342–AWI–

GBC (PC) 2011 WL 703553

He requested that he be transferred to another prison out of area and told his concerns for being at risk of VF.

A prisoner is not required to establish actual physical injury caused if the deliberate indifference created a serious risk of harm Plaintiff did not meet burden of showing that various medical conditions, his race, age, and status as a non-native to a VF endemic region made him vulnerable to a substantial risk of serious harm. Defendants are recommended to file for summary judgment and court be directed to enter judgment for Defendants.

5. Gray, II v. Robinson, MTA

481 Fed.Appx. 380

No. 11-16865

No. 1:08-cv-00778-OWW-

GSA-PC 2011 WL 489035

Sues prison officials at PVSP. Tested positive for VF. Alleged deliberate indifference to serious medical needs. He alleges that defendant should have known since various media accounts of the presence of VF at PVSP.

District court properly granted summary judgment because Gray failed to raise dispute of fact as to whether defendants failed to respond adequately to his illness.

6. James v. Yates 1:08-cv-1706-DLB

2010 WL 2465407 E.D. Cal. 6/15/2010

He alleges that CDCR issued two memos regarding VF and high risk of exposure for inmates. Said Defendants knew severity of VF.

Dismissed for failure to state a claim after repeated instruction by the court that the complaint must allege that any defendant “knew of and disregarded an excessive risk.” If Defendants had, with deliberate indifference, failed to treat Plaintiff for his Valley fever, Plaintiff would state an Eighth Amendment claim.



7. Love v. Mekemson

2008 WL 942945

No. CIV S-07-1731-LKK-

CMK-P

Alleged that defendants knew plaintiff was diabetic and was at high risk of VF, but did nothing to help plaintiff.

Original complaint was provided leave to amend since it did not state a cognizable claim but appeared he may be able to.

2009 CASES

8. Willis v. Yates 2009 WL 3486674

Sues prison officials. Transferred to PVSP in 2002. Requested transfer in 2003 after learning VF was endemic in the area. Was denied. Repeatedly asked for transfer from 2003 to 2009 and was denied. In 2005 contracted VF. Abandoned his prior claim that defendants’ refusal to grant transfer violated constitutional rights. Now alleges that defendants failed to warn him of dangers and violated rights under Eighth Amendment.

No factual basis to link defendants to knowing disregard of substantial risk of harm to health. Risk of developing VF and did develop VF is insufficient to establish claim. Findings and Recommendations say that this action of the second amended complaint should be dismissed with prejudice for failing to state a claim.

9. Smith v. Schwarzenegger

393 Fed. Appx. 518

No. 09-15716

Sues Governor, prison officials, CDCR Alleges that he was housed in areas where VF known to be present. He is African American and high risk of contracting VF.

Court dismissed first complaint with leave to amend. Filed second complaint and district court dismissed second amended complaint.

10. Humphrey v. Yates

No. 1:09-cv-00075-LJO-DLB (PC) 2009 WL 3620556

Contracted VF on 11/25/2005. Already had pre-existing lung cancer.

Recommended Action proceeded against Yates for violation of Eighth Amendment proceed.

11. Gregge v. Kate E.D. Cal. 2009 1:15-cv-

00176-LJO-SAB

584 Fed.Appx. 421

2015 WL 2448679

Pro se. Claims he was exposed and contracted VF at PVSP.

Plaintiff not included any factual allegations that Yates was involved in creating the policy alleged in the complaint and continuing to allow PVSP to operate.

12. Gilbert v. Yates 1:09-cv-02050 He claims that Defendants First complaint dismissed with


NO CASE CASE NO. FACTS NOTES AWI DLB 2010 WL 5113116

knew of his asthma and gave medication for that rather than treat him for VF. He alleges that defendants knowingly disregarded an excessive risk to his health and failed to respond to his medical needs by refusing transfer.

leave to amend. Plaintiff, through counsel, filed first amended complaint. Allegations only that a prison was located in a region where Valley Fever existed were insufficient.

13. King v. Avenal State Prison

2009 WL 546212

Was prisoner at ASP. Sues ASP and CDC. Alleged began experiencing severe chest pains in 2004 which reported to officer where he was prescribed Motrin. Ultimately diagnosed with VF. Claims to contract VF while working at the ASP chicken farm and delay in diagnosis caused him to lose 25% of right lung.

Complaint is dismissed with leave to file amended complaint within 30 days. Plaintiff might be able to state a claim if he is able to show that any of the prison personnel were aware that his symptoms were probably related to having contracted VF and then deliberately took action which he or she knew would expose plaintiff to an excessive risk of harm.

14. Lancaster v. Aung

No. C 09-3230 MMC (PR) 2012 WL 1355762

Alleges staff was deliberately indifferent to medical needs and failed to treat VF from 5/8/2007 to 5/31/2007 when sent to outside hospital for treatment.

Order denying plaintiffs motion to compel and granting defendants motion for summary judgment was affirmed.

15. Cruz v. Schwarzenegger

2009 WL 256649

No. 1:08-cv-00352-OWW-

SMS PC

Said that they had a duty to review complaint about not wanting to be exposed to VF but failed to do so.

Adopted findings and recommendations and dismissing action with prejudice for failure to state claim under §1983.

2010 CASES

16. Stevens v. Yates 1:10-cv-00705-MJS 2012 WL 2520464 E.D. Cal. 6/28/2012

Alleges Defendants were aware of dangers and prevalence of VF and failed to warn or take steps to mitigate the risk.

First prong of deliberate indifference claim satisfied where plaintiff identifies a factor responsible for increasing the risk of contraction or severity of infection. To state an Eighth Amendment


NO CASE CASE NO. FACTS NOTES claim, Plaintiff must show that the “course of treatment the doctors chose was medically unacceptable under the circumstances” and “that they chose this course of treatment in conscious disregard of any excessive risk to Plaintiff’s health.”

17. Clark v. Igbinosa

No. 1:10-cv-01336-DLB

PC 2011 WL 1043868

After being housed for seven months he contracted VF. Sues Defendants Igbinosa, Yates, and Cate denied transfer since did not match criteria for morbidity related to VF

Dismissed for failure to demonstrate Defendants knew or and disregarded an excessive risk to Plaintiff’s health or safety. Leave to amend was not provided. Going to an area which contains VF and contracting it is not sufficient to state a claim. Defendants considered request which fails to indicate Defendants were deliberately indifferent.

18. Harvey v. Gonzalez

2:10-cv-4803-VAP-SP 2011 WL 4625710 C.D. Cal. 7/272011

Alleged that defendants acted with deliberate indifference to his future health when they transferred him to PVSP He claims he was exposed and contracted VF at PVSP.

Dismissed for failure to allege that the defendants were deliberately indifferent or that the risk was excessive. Does not allege any facts which the court could draw a reasonable inference that the defendants knew of and disregarded a serious risk to health/safety.

19. Barron v. Martel No. 2:10-cv-1567 WBS

DAD P 2014 WL 3362360

Alleges nurse and physician’s assistant failed to provide him adequate medical care in connection with rash and bump on his chest that were determined to be complications with VF.

Recommended that defendants’ motion for summary judgment be denied Indications of a serious medical need include “the presence of a medical condition that significantly affects an individual’s daily activities.” McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991).

20. Samuels v. Ahlin No. 1:10-CV-00585-GSA-

PC

Alleged that defendants knew of life-threatening risk of building Coalinga State

Properly dismissed medical care claim because failed to allege that defendants were


NO CASE CASE NO. FACTS NOTES 2013 WL 1876135

584 Fed.Appx. 636

No. 13-16044

Hospital in highly endemic area for VF but approved or failed to stop the construction.

personally involved in violations or causal connection between conduct and violations. Affirmed in part, reversed in part, remanded.

21. Whitney v. Walker

No. 1:10–cv–

01963–DLB

PC

2013 WL

687059

Contends that defendants knew that plaintiff had weakened immune system and was receiving cancer treatment and failed to remove him from ASP.

No facts alleged to indicate Defendant Campbell knew of and disregarded an excessive risk of serious harm.

22. Solvey v. Tilton 2010 WL 99405

No. 1:07-cv-00812-LJO-

GSA PC

Alleges that PVSP sits in VF endemic zone and was released into a dangerous environment. In 9/2005 he became very ill and was subsequently diagnosed with VF in 10/2005.

Complaint failed to state a claim upon which relief can be granted. Provide plaintiff opportunity to amend. Complaint was dismissed with leave to amend.

2011 CASES

23. Owens v. Trimble

1:11-cv-01540-

LJO(PC) 2012 WL 1910102

Owens sued prisoner officers and former governor, Schwarzenegger. Requested to be transferred out of PVSP because he had an Asthma diagnosis.

An increased risk of infection may rise to a serious medical need and satisfy the first prong of the Eighth Amendment analysis. Court provided an opportunity to clarify and file amended complaint in 30 days.

2012 CASES

24. Smith v. Brown 1:12-cv-0238-AWI-JLT (PC)

2012 WL 1999858

He contends that Defendants neglected to review susceptible to VF before transferred.

Allegations of exposure being more susceptible to contracting VF not sufficient by itself to establish deliberate indifference claim. Not enough that he was just placed at PVSP where he contracted VF.

25. Sparkman v. CDCR

1:12-cv-01444-AWI-

MJS (PC) 2013 WL 1326218

Contracted VF 10/2010 Chronic lung disease requiring oxygen therapy reflects a serious medical need. Exposure to VF with such a preexisting lung condition is a serious medical condition


NO CASE CASE NO. FACTS NOTES sufficient to satisfy first prong of the claim based on VF exposure.

26. Holley v. Scott 1:12-cv-01090-

MJS(PC) 2013 WL 3992129

He alleges that he belonged to a medically high risk (African American) group for contracting VF

First complaint was dismissed with leave to amend and later dismissed for failure to state a claim. Able to state a claim based on VF exposure when Plaintiff has identified a factor responsible for either increasing the risk of contraction or severity of infection. Vulnerability of particular races, including African American, held sufficiently serious to satisfy first element of an Eighth Amendment claim.

27. Johnson v. Pleasant Valley State Prison

505 Fed.Appx. 631

No. 12-16361

Alleged that defendants ignored threat to plaintiff and every other prisoner housed at PVSP by exposing them to environmental hazards.

Appellate court reversed and remanded. Dismissal of Johnson’s action was improper at early stage because Johnson alleged that prison officials were aware of the inmates exposure to VF posed significant threat to inmate safety yet failed to take reasonable measures to avoid that threat.

2013 CASES

28. Nawabi v. Cates 1:13-cv-00272-LJO-

SAB 2015 WL 2414682

Claims contracted VF at ASP. Sues governor and prison officials. Alleges that Defendants have known prevalence of VF in San Joaquin Valley.

Filed Pro-per, dismissed w/leave to amend for failure to state a claim. Amended complaint found to state a claim. Then associated counsel.

29. Jones v. Hartley No. 1:13-CV-01590-AWI-

GSA-PC

Alleges that Defendant knew about the risks at the time he ordered the watering of the

First amended complaint is dismissed for failure to state a claim with leave to amend.


NO CASE CASE NO. FACTS NOTES 2015 WL 1276708

grass at ASP to cease. Resumed watering the grass after he and other inmates contracted VF.

Courts have yet to find that exposure to valley fever spores presents an excessive risk to inmate health. Citing King v. Avenal State Prison “Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk that society would not tolerate.” Hines v. Yousseff, No. 1:13-cv-00357-AWI-JLT, 2015 WL 164215

30. King v. California Dept. of Corr. and Rehabilitation

No. 2:13–cv–

2010 MCE

CKD P

2014 WL

5817240

Alleges that he was transferred to ASP putting him at risk for VF and contracted disease after ASP

Recommended that defendants’ motion for summary judgment for failure to exhaust administrative remedies be granted.

31. Sutton v. Management & Training Corporation

No. 1:13-CV-01344-AWI-

JLT

2013 WL

6009941

Alleged MTC responsible for exposure and contraction of VF.

Defendant did not identify any hardship MTC faced at the time at being required to go forward with this action.

32. Aluya v. Management & Training Corporation

No. 1:13-CV-01345-AWI-

JLT 2013 WL 6009943

He reports he was diagnosed with VF shortly after 4/8/2011. Alleges that MTC was on notice of risk of harm and failed to protect him from that harm.

Defendant did not identify any hardship MTC faced at the time at being required to go forward with this action.

33. Hines v. Yousseff No 1:13-cv-00357-AWI-

JL 2015 WL 164215

Alleges that defendants applied criteria without considering factors, like his race and asthma history, that would make him high risk.

Did not allege facts showing intentional indifference and the background in Plata and other cases since 2005 show that policy makers have been struggling for years to accommodate constitutional requirements within state means.

2014 CASES



34. Chaney v. Beard No 1:14-CV-00369-MJS 2014 WL 2957469

Alleges that staff members at CSO-COR failed to take precautions to prevent him from contracting VF.

Being an African American male and increased risk of harm from VF is sufficient to satisfy the first element of the Eighth Amendment claim. Should include details about problems with VF, how sought treatment, how defendants responded to requests, and how they exhibited deliberate indifference to him and condition.

35. Selvick v. Brazelton

No. 1:14-cv-00363-ljo-sab

2014 WL 4960522

Defendants authorized construction in the area knowing prevalence of VF in the soil. Requested to be transferred, when he was he already contracted VF.

Recommended that motion to dismiss be granted, claims based upon contraction of VF while housed at PVSP be dismissed without leave to amend since barred by SOL.

36. Lua v. Smith 1:14-cv-19-LJO-MJS 2014 WL 1308605 E.D. Cal. 3/31/2014

Did not want to be transferred to KVSP because he said there was a change that disease could be “reactivated” in area where endemic. Lab results on 9/5/2013 showed high level of VF.

Dismissed with leave to amend for failure to state a claim based on failure to allege more than confinement in a location where VF is prevalent to meet first prong of Eight Amendment claim. Nor based solely upon mere exposure to or contraction of VF.

37. Sullivan v. Kramer

2014 WL 1664983

Believes that defendants had specific knowledge of dangers of VF as early as 2002 prior to the construction.

Alleging that all patients are discriminated against because they have been placed at institution where VF is present is insufficient to state a claim. Fails to make allegations that defendants actions were motivated by discriminatory animus towards patients with mental disabilities.


____________________________________________________


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ATTORNEYS FOR APPELLANTS

UNITED STATES COURT OF APPEAL NINTH CIRCUIT COREY SMITH, et al. Appellants, v. ARNOLD SCHWARZENEGGER, et al., Respondents.

NINTH CIRCUIT NO. 15-17155 EASTERN DISTRICT NO. 1:14-CV-60 PROOF OF SERVICE

I am a resident of the San Diego County. I am over the age of eighteen years and not a party to the within entitled action. My business address is 7676 Hazard Center Dr., Ste. 500, San Diego, California 92108. On July 24, 2016, the following was served: * Appellants’ Reply Brief w/Appendices C, D & E * Motion to Take Judicial Notice / Volume of Exhibits (RJN) This was circulated to the service list below:


____________________________________________________


SERVICE LIST ____________________________________________

Smith Co-Counsel Gregg Zucker, Esq. Affeld Grivakes Zucker LLP 2049 Century Park East, Suite 2460 Los Angeles, CA 90067 T: 310 979 8700 F: 310 979 8701 E: [email protected] Edward Burns, Esq. Burns & Schaldenbrand 509 North Coast Highway Oceanside, CA 92054 T: 760 453 2189 F: 760 453 2194 E: [email protected] David Elliot, Esq. Law Offices of David Elliot, Esq. 1408 Morena Blvd, Ste. 200 San Diego, California 92110 T: 858 228 7997 F: 480 247 4553 E: [email protected] Matthew Pavone, Esq. Law Offices of Matthew B. Pavone 750 Grant Avenue, Ste. 250 Novato, CA 94945-7003 T: 415 209 9610 F: 415 892 0337 E: [email protected] ____________________________________________


____________________________________________________


Attorneys for Smith Respondent Prison officials Jon Allin, Esq. Maureen C. Onyeagbako, Esq. California Attorney General's Office 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 T: 916 445 2395 F: 916 324 5205 E: [email protected] E: [email protected] ____________________________________________ Attorneys for Smith Respondent Doctors Susan E. Coleman, Esq. Kristina Doan Gruenberg, Esq. Burke, Williams & Sorensen, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 T: 213 236 0600 F: 213 236 2700 E: [email protected] E: [email protected] ____________________________________________ Attorneys for Hines Appellant Mr. Greg Garrotto, Esq. Law Office of Garrotto & Garrotto 1925 Century Park E, Suite 2000 Los Angeles, CA 90067-2500 (310) 229-9200 [email protected] ____________________________________________


____________________________________________________


Attorneys for Jackson Appellants Jon Allin, Esq. Maureen C. Onyeagbako, Esq. California Attorney General's Office 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 T: 916 445 2395 F: 916 324 5205 E: [email protected] E: [email protected] ____________________________________________ Attorneys for Jackson Respondents Raymond P. Boucher Hermez Moreno Brian M. Bush BOUCHER, LLP 21600 Oxnard Street, Suite 600 Woodland Hills, CA 91367-4903 (818) 340-5400 [email protected] [email protected] [email protected] Mark A. Ozzello ARIAS, OZZELLO & GIGNAC, LLP 6701 Center Drive West, Suite 1400 Los Angeles, CA 90045 (310) 670-1600 [email protected] Jason K. Feldman Ian Wallach FELDMAN & WALLACH

606 Venice Boulevard, Suite C Venice, CA 90291


____________________________________________________


(310) 577-2001 [email protected] [email protected] ____________________________________________

Attorneys for Gregge Appellant

Benjamin Pavone, Esq. Hillary Grant, Esq. Pavone & Fonner, LLP 7676 Hazard Center Drive, 5th Floor San Diego, California 92108 T: 619 224 8885 F: 619 224 8886 E: [email protected] ____________________________________________ Attorneys for Gregge Respondents

Mr. Tyler Heath, Esq. California Attorney General's Office 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 T: 916 327 9722 F: 916 324 5205 E: [email protected]

Via electronic mail. I declare under the laws of the State of California under penalty of perjury on this 24th day of July, 2016 that the foregoing is true and correct. Executed at San Diego, California.


I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) .

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

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CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

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