Villanueva v. Biter

OSCAR H. VILLANUEVA, Plaintiff, v. M. D. BITER, et al., Defendants.

Case No. 1:11-cv-01050-AWI-SAB (PC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

December 6, 2017

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED

[ECF No. 48]

Plaintiff Oscar H. Villanueva is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Currently before the Court is Defendants' motion for summary judgment, filed July 12, 2017. (ECF No. 48.)

I.RELEVANT HISTORY

This action is proceeding against Defendants M.D. Biter and S. Lopez for deliberate indifference to Plaintiff's health and safety in violation of the Eighth Amendment.

Defendants filed an answer to the complaint on August 18, 2016. On August 22, 2016, the Court issued the discovery and scheduling order. Upon a showing of good cause, the Court twice extended the deadline for Defendants to file a dispositive motion. As previously stated, Defendants filed a motion for summary judgment on July 12, 2017.¹ Although Plaintiff received three extensions of time to file an opposition, no opposition was filed and the time to do has expired. Accordingly, the motion is deemed submitted for review without oral argument pursuant to Local Rule 230(l).

II.LEGAL STANDARD

Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks andcitation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).

In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

III.SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff alleges that Defendants Biter and Lopez were responsible for the operations at Kern Valley State Prison ("KVSP"). Plaintiff states that four years prior to KVSP opening, the Environmental Protection Agency ordered a reduction in the maximum level of arsenic in drinking water to ten parts per billion. According to Plaintiff, KVSP opened in 2005 knowing that it had a serious environmental problem. (Compl. 3,² ECF No. 1.) Plaintiff contends that Defendants Biter knew of the environmental hazard and disregarded the substantial risk of harm due to a lack of drinkable water. (Id. at 3.)

Plaintiff alleges that Defendant Lopez was aware that there was arsenic in the drinking water, but did not attempt to correct the dangerous condition by providing emergency measures or an antidote for exposure to the poison. (Id. at 4.) Plaintiff states that he has health problems. (Id. at 3.) Plaintiff claims that the notice of December 20, 2010 is torture because he has been exposed to arsenic and cannot change his water consumption. (Id. at 4.)

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IV.DISCUSSION

Defendants move for summary judgment because the levels of arsenic detected in Kern Valley's wells did not present any actual danger to Plaintiff, and Plaintiff did not suffer any actual harm from the water that he consumed. Thus, Defendants argue they are entitled to summary judgment because the water was not dangerous, and they were not deliberately indifferent. In the alternative, Defendants argue they are entitled to qualified immunity because it was not clearly established that it was unconstitutional to allow inmates to consume water that they were informed was not dangerous, but violated a regulation.

A. Defendants' Request for Judicial Notice

Concurrently with their motion for summary judgment, Defendants have filed a request for judicial notice of the California Department of Corrections and Rehabilitation, Quarterly Status Report of Capital Outlay Projects for the California Department of Corrections and Rehabilitation, Arsenic Removal Water Treatment System (March 31, 2013), available at http://www.cdcr.ca.gov/fpcm/docs/FPCM-March_2013_Quarterly_Report.pdf (Exhibit G), and the State Water Resources Control Board, Division of Water Quality GAMA Program, Groundwater Information Sheet, Arsenic (revised July 6, 2010) (Exhibit H). (ECF No. 48-3.)

Under Federal Rule of Evidence 201(b), the Court can take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc). The Court may take judicial notice of the records and reports of administrative bodies. Winnemem Wintu Tribe v. U.S. Dep't of Interior, 725 F.Supp.2d 1119, 1131 (E.D. Cal. 2010). The Court's authority includes taking judicial notice of government reports. Mobil Oil Corp. v. Tennessee Val. Auth., 387 F.Supp. 498, 500 fn.1 (N.D. Ala. 1974) (taking judicial notice of Tennessee Valley Authority reports).

Defendants' request for judicial notice is granted. See Sacramento Cnty. Retired Employees Ass'n v. Cnty. of Sacramento, 975 F.Supp.2d 1150, 1154 (E.D. Cal. 2013), appeal dismissed (Jan. 16, 2014) (taking judicial notice of staff reports to County Board of Supervisors); see also Coppola v.Smith, 935 F.Supp.2d 1013 (E.D. Cal. 2013) (court took judicial notice of EPA documents containing test results of groundwater).

B. Statement of Undisputed Facts³

1. Plaintiff Oscar Villanueva is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR). (Dep. of Pl. (Heath Decl. Ex. J) at 10:15-24.)

2. Plaintiff arrived at Kern Valley State Prison on August 26, 2010, and was housed there until September 14, 2011. (Health Decl. Ex. J at 25:4-8; Pl's Responses to Def Biter's Interrogatories Set One (Heath Decl. Ex. I) at 3:25-28.)

3. Plaintiff was also housed at Kern Valley from February 19, 2014, to the present. (Heath Decl. Ex. I at 3:25-28.)

4. M. Biter became Kern Valley's acting Warden in August 2010, and was named the Warden in February 2013. He was the Warden until November 2015. (Biter Decl. at ¶ 2.)

5. S. Lopez, is a medical doctor and the Chief Medical Executive at Kern Valley. She became the CME in 2007. (Lopez Decl. at ¶ 1.)

6. In 2001, the United States Environmental Protection Agency (EPA) updated its maximum contamination level (MCL) to 0.010 milligrams per liter (mg/l) or (10 micrograms per liter [mcg/1] or 10 parts per billion) of arsenic. This standard did not become effective until 2006. (Wise Decl. at ¶ 4; 40 C.F.R. § 141.62.)

7. The State of California adopted the EPA's arsenic MCL standard on November 28, 2008. (Wise Decl. at ¶ 4; Cal. Code Regs. tit. 15, § 64431.)

8. Kern Valley has always tested the drinking water produced by its two wells for contaminants and provides the test results to the California Department of Health and continues to do so to this day. (Wise Decl. at ¶¶ 8-9.)

9. During the time Plaintiff was incarcerated at Kern Valley between August 2010 andSeptember 2011, Kern Valley's wells were less than half the prior MCL of 0.050 mg/L, with a quarterly average between 0.014 mg/L and 0.020 mg/L. (Wise Decl. at ¶¶ 5, 10, Ex. A.)

10. As of July 6, 2010, 1,375 wells of 10.425 wells sampled in California had arsenic concentrations above the MCL. Kern County is one of the counties with the most wells above the arsenic MCL. (Req. for Jud. Not (RJN) at Ex. H.)

11. Kern Valley's wells provide water for the entire facility. (Wise Decl. at ¶ 3.)

12. Kern Valley provides the same water to staff and inmates. (Wise Decl. ¶ 3.)

13. Kern Valley posted quarterly notices reporting arsenic levels. The notices conformed with the ones the Department of Public Health required Kern Valley to post. (Wise Decl. at ¶ 10,...