(PC)Seymour v. Shirley ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 EASTERN DISTRICT OF CALIFORNIA 8 AARON D. SEYMOUR, Case No. 1:22-cv-00938-JLT-EPG (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS 10 RECOMMENDING THAT DEFENDANTS’ 11 v. MOTION TO DISMISS BE DENIED 12 H. SHIRLEY, et al., (ECF No. 20) 13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 14 15 16 I. INTRODUCTION 17 Aaron D. Seymour (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action. The complaint commencing this action was filed on July 29, 19 2022.1 (ECF No. 1). Plaintiff alleges that the water at Wasco State Prison is contaminated, and 20 that defendants Shirley, Degough, and Cronjager have not appropriately responded to the issue. 21 The Court screened Plaintiff’s complaint and allowed the case to proceed on Plaintiff’s Eighth 22 Amendment conditions of confinement claims against defendants Shirley, Degough, and 23 Cronjager. (ECF No. 9). 24 On February 9, 2023, defendants Cronjager and Shirley moved “to dismiss the 25 complaint against them because Seymour failed to allege sufficient facts to state an Eighth 26 27 1 On June 29, 2022, Plaintiff lodged the complaint in Seymour v. Shirley, E.D. CA, Case No. 1:21-cv- 28 01485, and on July 29, 2022, the Court in that case ordered that the complaint be docketed in this newly opened 1 Amendment conditions of confinement claim against these Defendants.” (ECF No. 20, p. 1).2 2 The motion does not refer to the Court’s screening order or reasoning in allowing these claims 3 to proceed. Therefore, the Court recommends denying Defendants’ motion to dismiss for the 4 reasons explained in that order, as set forth below.3 5 II. CLAIMS AT ISSUE 6 a. Plaintiff’s Prior Case 7 Plaintiff first filed the claims that are proceeding in this case in Seymour v. Shirley 8 (“Seymour I”), E.D. CA, Case No. 1:21-cv-01485. Plaintiff’s First Amended Complaint was 9 screened, and based on allegations that are substantially similar to the allegations in this case, 10 District Judge Anthony W. Ishii allowed the case to proceed on Plaintiff’s Eighth Amendment 11 conditions of confinement claim against defendants Doe 1, Degough, and Doe 2. Id. at ECF 12 Nos. 13, 14, & 18. The Doe defendants were later identified as Shirley and Cronjager. Id. at 13 ECF No. 40. 14 This action was subsequently dismissed, without prejudice, for failure to exhaust 15 administrative remedies. Id. at ECF No. 50. As Plaintiff had already refiled his complaint in 16 Seymour I, the Court also directed the Clerk of Court to open a new action and docket a copy 17 of the refiled complaint in that action. 18 Plaintiff’s refiled complaint is now proceeding in this action. 19 b. Summary of Plaintiff’s Complaint 20 Plaintiff alleges as follows in his complaint: 21 Since December 14, 2017, Wasco State Prison has been failing the California Domestic 22 Water Quality & Monitoring Regulations, and thus violated federal anti-pollution laws with 23 MCL 1, 2, 3-TCP (“TCP”). TCP is a carcinogenic chemical. It is the byproduct of a varnish 24 remover for combustion engines. It causes severe harm to humans, including cancer. The level 25 26 2 Page numbers refer to the ECF page numbers stamped at the top of the page. 27 3 The Court issues these findings and recommendations without further briefing from the parties because, as described in these findings and recommendations, both the undersigned and District Judge Anthony W. Ishii 28 have found that Plaintiff sufficiently alleged Eighth Amendment conditions of confinement claims against 1 of TCP at Wasco State Prison is above the legal limit. 2 A three-year marker was set, from December 14, 2017, through December 14, 2020, to 3 have remedied the contaminated water problem. However, nothing has been done. One year 4 after the set date, the chemical contaminant continues to circulate. Defendants failed to 5 circumvent this egregious risk to human life. The lack of action from Defendants has 6 exacerbated the problem. The legal limit set by federal regulations for TCP is equivalent to 7 0.005 ug/L. However, over the course of four years it has grown from 0.008 ug/L, to 0.019 8 ug/L, to 0.022 ug/L, and the number continues to rise. 9 “[D]efendant(s) did not effectively intervene and immediately halt superior’s failed 10 conversations to stop this contamination.” (ECF No. 1, p. 3). They continued to “allow” an 11 outdated memo of misinformation and did not provide updates as to any progress (because 12 there was none). They did not inform their constituents of the real risk. If Defendants would 13 have abided by OSHA, the federal anti-pollution law, and California Department of Corrections 14 and Rehabilitations’ own rules to maintain health and safety, the triple threat of Valley Fever, 15 COVID-19, and the cancer epidemic would not exist. 16 Defendant Shirley, the Warden, misallocated federal funds from the Wasco State Prison 17 treasury for her and her colleagues’ personal use. This depleted financial resources in place to 18 combat and correctly treat the infectious water and to remove the G.A.C. system that has only 19 exacerbated the problem. Defendant Shirley chose to withhold money that clearly would have 20 been better suited going to the inmate canteen for the purchasing of clean bottled drinking 21 water for inmates to buy. This would have reduced Plaintiff’s exposure to the carcinogenic 22 chemical in the water. Defendant Shirley works in Kern County and has firsthand knowledge 23 of the severe risk of Kern County’s water, as numerous cities (including Arvin and Delano) 24 have suffered the same exposure to the health risk in their community. Additionally, the news, 25 newspaper, and media have televised the rampant harm, and citizens have been banned from 26 consuming the water. 27 Defendant Degough, the Wasco State Prison Water System Contractor, relayed false 28 information to Wasco State Prison about the true risk and high exposure of TCP, showing 1 blatant disregard for Plaintiff’s life, safety, and health. If defendant Degough would have 2 monitored the increase of the toxin and informed the administration correctly, Plaintiff would 3 not be infected today. 4 Defendant Cronjager, the head of the Health and Safety Division of Wasco State Prison, 5 has a sworn duty to always second guess, investigate, and go above and beyond to make sure 6 that the water is not toxic or a threat to inmates’ health. However, he or she did not do so. 7 Defendant Cronjager is being reactive instead of proactive, and he is waiting for the harm to be 8 done by the water. He is using Plaintiff as a lab-rat instead of issuing an emergency and 9 dispensing clean drinking water. 10 Plaintiff has no choice but to drink, bathe with, and eat with the contaminated water. 11 Heating the water to cook incubates the bacteria that could cause other outbreaks, like 12 Legionnaire’s disease. All the staff above are privy to the danger yet have done little to nothing 13 to stop Plaintiff’s exposure to the infectious disease. As a result, for the last four years the 14 problem continues to worsen. 15 The water has caused Plaintiff severe kidney pain that has Plaintiff bedridden. 16 Sometimes he is paralyzed, nauseated, and numb in his limbs. He suffers from extreme hair 17 loss, eye irritation, headaches, rashes, highly elevated prostate specimen antigens, and extreme 18 emotional distress. 19 c. Screening Order 20 The Court screened Plaintiff’s complaint. In the screening order, the Court found as 21 follows: 22 Liberally construing Plaintiff’s complaint, the Court finds that Plaintiff sufficiently alleges that he is forced to drink, bathe with, and eat with 23 contaminated water, and that this contaminated water poses an excessive risk to his health and safety, to proceed past the screening stage.4 According to 24 Plaintiff, he has already suffered numerous symptoms, including severe kidney 25 pain, extreme hair loss, eye irritation, headaches, rashes, and highly elevated prostate specimen antigens. 26 27 28 4 The Court notes that while Plaintiff mentions Valley Fever and COVID-19, Plaintiff does not appear to 1 Lthiabte Pralalliyn tcioffn ssutrfufiicnige nthtley aalllleeggaetsio tnhsa ti nd ePfleanindtainfft’ Ss hciormlepyl (atihnet, Wthaer Cdeonu)r,t daelfseon fdinandts 2 Degough (the Wasco State Prison Water System Contractor), and defendant Cronjager (the head of the Health and Safety Division of Wasco State Prison) 3 knew of the contaminated water issue but failed to respond appropriately.5 According to Plaintiff’s allegations, all of these defendants were directly 4 responsible for the health and safety of inmates at Wasco State Prison. Moreover, Plaintiff alleges that all of these defendants reside and/or work in 5 Kern County. Finally, Plaintiff alleges that the news, newspaper, and media 6 have televised the rampant harm, and citizens have been banned from consuming the water. Based on these allegations, the Court finds that Plaintiff’s 7 Eighth Amendment conditions of confinement claims against defendants Shirley, Degough, and Cronjager should proceed past screening. 8 (ECF No. 9, pgs. 7-8) (footnotes in original). 9 The only other claim in the complaint, Plaintiff’s Eighth Amendment conditions of 10 confinement against defendant Shirley based on allegations that she misallocated federal funds, 11 was dismissed. (ECF No. 13). 12 III. DEFENDANTS’ MOTION TO DISMISS 13 On February 9, 2023, defendants Cronjager and Shirley (“Defendants”) filed a 14 motion to dismiss. (ECF No. 20). Defendants argue that Plaintiff “fails to allege 15 the requisite logical or factual relationship tying these defendants to the alleged harm he 16 suffered because of the water contamination issue. There are no factual allegations, rather than 17 factually devoid conclusions, in the complaint to indicate that either of the moving Defendants 18 had actual knowledge at any time of a water contamination issue. Therefore the complaint is 19 devoid of any facts demonstrating that Cronjager or Shirley took an affirmative action which 20 exposed Seymour to harm. Nor are there any facts which show Cronjager nor Shirley failed to 21 take a required action, which then actually or proximately caused Seymour harm.” (Id. at 2). 22 Defendants also argue that they are entitled to qualified immunity because “there are no 23 facts alleged that, if assumed true, would support the view that Defendant Shirley or Defendant 24 Cronjager had personal knowledge of the problem Plaintiff alleges in his complaint, or that if 25 they did, that they ought to have known not to rely on DeGough’s reports.” (Id. at 6). 26 27 5 Based on Plaintiff’s allegations, it appears that at least some of the defendants did act, at least initially. 28 Plaintiff alleges that there was a three-year plan to deal with the issue. However, Plaintiff alleges the three-year 1 Defendants do not address the Court’s screening order. 2 IV. LEGAL STANDARDS FOR A MOTION TO DISMISS 3 In considering a motion to dismiss, the Court must accept all allegations of material fact 4 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. 5 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts 6 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 7 abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 8 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved 9 in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro 10 se pleadings “must be held to less stringent standards than formal pleadings drafted by 11 lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints 12 should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 13 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 14 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only 15 ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order 16 to ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’” 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting 18 Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately 19 prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 20 416 U.S. at 236 (1974). 21 V. DISCUSSION 22 a. Legal Standards 23 i. Section 1983 24 The Civil Rights Act under which this action was filed provides: 25 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 26 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 27 secured by the Constitution and laws, shall be liable to the party injured in an 28 action at law, suit in equity, or other proper proceeding for redress.... 1 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 2 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 3 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 4 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 5 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 6 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 7 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 8 under color of state law, and (2) the defendant deprived him of rights secured by the 9 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 10 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 11 “under color of state law”). A person deprives another of a constitutional right, “within the 12 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 15 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 16 causal connection may be established when an official sets in motion a ‘series of acts by others 17 which the actor knows or reasonably should know would cause others to inflict’ constitutional 18 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 19 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 20 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 21 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 22 A plaintiff must demonstrate that each named defendant personally participated in the 23 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 24 connection or link between the actions of the defendants and the deprivation alleged to have 25 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 26 658, 691, 695 (1978). 27 Supervisory personnel are not liable under section 1983 for the actions of their 28 employees under a theory of respondeat superior and, therefore, when a named defendant 1 holds a supervisory position, the causal link between the supervisory defendant and the claimed 2 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 3 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 5 a plaintiff must allege some facts that would support a claim that the supervisory defendants 6 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 7 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 8 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 9 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 10 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 11 quotation marks omitted). 12 For instance, a supervisor may be liable for his or her “own culpable action or inaction 13 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 14 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 15 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 16 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 17 ii. Conditions of Confinement 18 “It is undisputed that the treatment a prisoner receives in prison and the conditions 19 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 20 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 21 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 22 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 23 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 24 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 25 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 26 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 27 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 28 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 1 642 F.2d 1129, 1132-33 (9th Cir. 1981). 2 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 3 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. 4 (citation and internal quotation marks omitted). Second, “a prison official must have a 5 sufficiently culpable state of mind,” which for conditions of confinement claims “is one of 6 deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials 7 act with deliberate indifference when they know of and disregard an excessive risk to inmate 8 health or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are 9 critical in determining whether the conditions complained of are grave enough to form the basis 10 of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). 11 Mere negligence on the part of a prison official is not sufficient to establish liability, but rather, 12 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 13 F.3d 1124, 1128 (9th Cir. 1998). 14 iii. Qualified Immunity 15 “The doctrine of qualified immunity protects government officials ‘from liability for 16 civil damages insofar as their conduct does not violate clearly established statutory or 17 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 18 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 19 In determining whether a defendant is entitled to qualified immunity, the Court must 20 decide (1) whether the facts shown by plaintiff make out a violation of a constitutional right; 21 and (2) whether that right was clearly established at the time of the officer’s alleged 22 misconduct. Pearson, 555 U.S. at 232. 23 To be clearly established, a right must be sufficiently clear “that every ‘reasonable 24 official would [have understood] that what he is doing violates that right.’” Reichle v. 25 Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Al–Kidd, 563 U.S. at 741) (alteration in 26 original). This immunity protects “all but the plainly incompetent or those who knowingly 27 violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 28 \\\ 1 b. Analysis 2 Liberally construing Plaintiff’s pro se complaint, the Court recommends finding, as the 3 Court previously found in its screening order, that Plaintiff sufficiently alleged that defendant 4 Shirley (the Warden) and defendant Cronjager (the head of the Health and Safety Division of 5 Wasco State Prison) knew of the contaminated water issue but failed to respond appropriately. 6 In particular, Plaintiff alleged that Defendants “were directly responsible for the health and 7 safety of inmates at Wasco State Prison.” (ECF No. 9, p. 8). Moreover, Plaintiff alleged that 8 Defendants “reside and/or work in Kern County.” (Id.). Finally, Plaintiff alleged that “the 9 news, newspaper, and media have televised the rampant harm, and citizens have been banned 10 from consuming the water.” (Id.). The Court also noted that while Plaintiff alleged a three- 11 year plan was initially put in place to deal with the issue, Plaintiff also alleged that the “the 12 three-year period expired in December of 2020 and the issue continues to worsen.” (Id. at n. 13 4). 14 Thus, Plaintiff has alleged that Defendants, the Warden and the head of the Health and 15 Safety Division of Wasco State Prison, are responsible for his safety. They also worked and/or 16 resided in Kern County, where the contaminated water issue was reported in the news, 17 newspaper, and media. Additionally, prison officials had previously attempted (and failed) to 18 deal with the contaminated water issue. Liberally construing the allegations in Plaintiff’s 19 complaint, these allegations are sufficient to show that Defendants were aware of the 20 contaminated water issue.6 Despite knowing of the issue and being responsible for it, 21 22 6 Circumstantial evidence can be used to show subjective knowledge. See, e.g., Farmer, 511 U.S. at 842- 23 43 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, cf. Hall 118 (cautioning 24 against ‘confusing a mental state with the proof of its existence’), and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Cf. LaFave & Scott § 3.7, p. 335 25 (‘[I]f the risk is obvious, so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for we know that people are not always conscious of what 26 reasonable people would be conscious of’). For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly 27 noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be 28 sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.’ Brief for 1 Defendants have not acted to remedy it.7 The Court also notes that, as described above, Judge 2 Ishii previously allowed identical claims to proceed against Defendants based on substantially 3 similar factual allegations. 4 Defendants do point out that Plaintiff alleges that defendant Degough relayed false 5 information to Wasco State Prison, and that if defendant Degough would have monitored the 6 increase of the toxin and informed the administration correctly, Plaintiff would not be infected 7 today. However, these allegations are conclusory. Moreover, even if defendant Degough 8 provided false information to Defendants, as discussed above, Plaintiff also sufficiently alleged 9 that Defendants knew of the contaminated water issue anyway, but failed to respond 10 appropriately. Defendants cite to no law, and the Court is not aware of any, suggesting that just 11 because one defendant could have prevented a conditions of confinement issue, no other 12 defendants may be liable if they also failed to prevent that same issue. Moreover, parties are 13 allowed to plead in the alternative. Fed R. Civ. P. 8(d)(2) (“A party may set out 2 or more 14 statements of a claim … alternatively or hypothetically, either in a single count … or in 15 separate ones. If a party makes alternative statements, the pleading is sufficient if any one of 16 them is sufficient.”); Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims … as 17 it has, regardless of consistency.”). 18 As to Defendants’ argument regarding qualified immunity, it appears to be based on the 19 first prong of the analysis, that is, whether the facts shown by Plaintiff make out a violation of a 20 constitutional right.8 As discussed above, the facts shown by Plaintiff make out a violation of 21 his Eighth Amendment rights. Accordingly, Defendants’ argument that they are entitled to 22 qualified immunity is not persuasive. 23 \\\ 24 \\\ 25 \\\ 26 27 7 As discussed above, there was a failed attempt to remedy the issue, but that attempt ended in December of 2020 and the issue continues to worsen. 28 8 Defendants do not argue that the law was not clearly established. Accordingly, the Court does not 1 Based on the foregoing, the Court finds that Defendants’ motion to dismiss should be 2 || denied.” 3 VI. RECOMMENDATION 4 Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ motion to 5 || dismiss (ECF No. 20) be DENIED. 6 These findings and recommendations are submitted to the United States district judge 7 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 8 || fourteen (14) days after being served with these findings and recommendations, any party may 9 || file written objections with the court. Such a document should be captioned “Objections to 10 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 11 || served and filed within fourteen (14) days after service of the objections. The parties are 12 || advised that failure to file objections within the specified time may result in the waiver of 13 || rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter 14 || v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 || Dated: __ February 10, 2023 [sJ ee heey — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 ° As the Court already found in the screening order that Plaintiff sufficiently alleged Eighth Amendment 2g || conditions of confinement claims against defendants Cronjager and Shirley, the Court will not stay any deadlines based on this pending motion to dismiss. 12