(PC) Collins v. Shirley

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TERION COLLINS, Case No.: 1:23-cv-00483 CDB (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. (Doc. 44) 14 HEATHER SHIRLEY, et al., 15 Defendants. 16 17 Plaintiff Terion Collins is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION1 20 The Court issued its Discovery and Scheduling Order on January 11, 2024. (Doc. 35.) 21 On January 17, 2025, Defendants filed a timely motion for summary judgment. (Doc. 44.) 22 Defendants’ motion included a Rand2 warning (Doc. 44-9), specifically addressing the 23 requirements concerning an opposition to a motion for summary judgment. 24 On February 18, 2025, when more than 21 days without Plaintiff filing an opposition or 25 statement of non-opposition to Defendants’ motion, the Court issued its Order to Show Cause 26 27 1 All parties have consented to the jurisdiction of the assigned magistrate judge for all further proceedings, including entry of judgment. (See Doc. 32 [minute order].) 1 (OSC) in Writing Why Sanctions Should Not be Imposed for Plaintiff’s Failure to File an 2 Opposition or Statement of Non-Opposition. (Doc. 45). Despite being directed to respond in 3 writing within 14 days, Plaintiff did not respond to the OSC. Thus, the Court considers 4 Defendants’ summary judgment motion to be unopposed. See Local Rule 230(c). 5 II. APPLICABLE LEGAL STANDARDS 6 Motions for Summary Judgment 7 Summary judgment is appropriate when it is demonstrated that there “is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 9 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 10 “citing to particular parts of materials in the record, including depositions, documents, 11 electronically stored information, affidavits or declarations, stipulations (including those made for 12 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 13 Civ. P. 56(c)(1)(A). 14 Summary judgment should be entered, after adequate time for discovery and upon motion, 15 against a party who fails to make a showing sufficient to establish the existence of an element 16 essential to that party's case, and on which that party will bear the burden of proof at trial. See 17 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 18 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 19 Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party 20 to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 21 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 22 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 23 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 24 and/or admissible discovery material, in support of its contention that the dispute exists or shows 25 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 26 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 27 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 1 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Further, the opposing 2 party must also demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable 3 jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 4 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, 5 the opposing party need not establish a material issue of fact conclusively in its favor. It is 6 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 7 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the 8 “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see 9 whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 10 56(e) advisory committee's note on 1963 amendments). 11 In resolving the summary judgment motion, the evidence of the opposing party is to be 12 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 13 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 14 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 15 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 16 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th 17 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 18 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 19 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 20 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 21 Eighth Amendment Failure to Protect 22 Prison officials have a duty “to take reasonable measures to guarantee the safety of 23 inmates, which has been interpreted to include a duty to protect prisoners.” Labatad v. 24 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 25 511 U.S. 825, 832-33 (1994) & Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To 26 establish a violation of this duty, a prisoner must “show that the officials acted with deliberate 27 indifference to threat of serious harm or injury to an inmate.” Labatad, 714 F.3d at 1160 (citing 1 A failure to protect claim under the Eighth Amendment requires a showing that “the 2 official [knew] of and disregard[ed] an excessive risk to inmate ... safety.” Farmer, 511 U.S. at 3 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 4 fact subject to demonstration in the usual ways, including inference from circumstantial 5 evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from 6 the very fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a 7 prisoner from serious harm requires that prison officials take reasonable measures to guarantee 8 the safety and well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th 9 Cir. 1998). As “only the unnecessary and wanton infliction of pain implicates the Eighth 10 Amendment,” plaintiff must allege facts showing the defendant acted with a “sufficiently 11 culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotations marks, 12 emphasis, and citations omitted). 13 To state a claim, the Eighth Amendment requires allegations sufficient to plausibly show 14 that prison officials were deliberately indifferent to a substantial risk of harm or safety. Farmer, 15 511 U.S. at 847. The objective component of an Eighth Amendment requires that a prisoner show 16 he was deprived of something “sufficiently serious.” Foster v. Runnels, 554 F.3d 807, 812 (9th 17 Cir. 2009) (quoting Farmer, 511 U.S. at 834). The state of mind requirement under the subjective 18 component of the Eighth Amendment standard has been defined as “deliberate indifference” to an 19 inmate's health or safety. Farmer, 511 U.S. at 834. Under the “deliberate indifference” standard, a 20 prison official cannot be found liable for denying an inmate humane conditions of confinement 21 unless the official knows of and disregards an excessive risk to inmate health or safety. Id. at 837. 22 III. PLAINTIFF’S CLAIMS 23 In his complaint, Plaintiff alleged as follows: 24 Plaintiff contends Defendant Degough relayed false information to Wasco State Prison staff concerning the danger of carcinogenic water 25 “filled with 1, 2, 3 Trichloropropane.” Plaintiff asserts Degough failed to monitor the true risk of the dangerous toxin and failed to 26 disclose the “truth of the risk of stomach ailments & risk of cancer.” Plaintiff asserts Defendant Cronjager, as head of health and safety, 27 “has a sworn duty to always second guess, investigate and go above & beyond” to ensure the water was not toxic or chemically 1 of the prison’s well being” and failed to implement a productive plan to remedy the water problem. He contends due to “violation of their 2 duty,” his right to access clean drinking water has been violated. 3 Plaintiff further contends Defendant Shirley has “outlawed bottled water for sale” as an alternative to the contaminated and toxic water. 4 Plaintiff contends he is “forced to drink toxic water” as a result. He asserts “Wasco City & prison as well as Shafter drink water from 5 Well #1 & Well #2.” Plaintiff contends Defendants Shirley and Cronjager “work & possibly live in Kern County” and have 6 knowledge of the toxic water from “constant news stories & magazine articles & newspapers reporting” about the state of the 7 water. Plaintiff asserts “the defendants all three knew about & continue to know about the toxic water in the Wasco State Prison.” 8 Plaintiff states the City of Shafter was directed not to “drink any of this water” and that the “Wasco prison staff knows that it has been 9 failing a federal standard for 1, 2, 3 TCP toxin in the California systems for years now.” He contends the prison “set a date from 10 December 2017 to fix this problem” within three years; however, the water contamination problem continues to plague Plaintiff and 11 inmates housed at Wasco State Prison “5 plus years later.” 12 Plaintiff contends Wasco State Prison is required to provide he and other inmates with “CLEAN drinking water & not contaminated 13 water.” He asserts Degough did not “follow the protocol & contact the warden about the true emergency of the contaminated water” at 14 Wasco. As a result, there has been “no approach to fix the water & that has physically hurt the inmate population.” Plaintiff contends 15 Cronjager “appears to have transferred the known inmates that have contracted H-pylori3 from this water & one inmate was transferred 16 to Lancaster medical prison & succumbed to the injuries this water caused him.” 17 Lastly, Plaintiff contends he suffers from kidney irritation, stomach 18 pain, body rashes and eye irritation. His limbs are numb, he cannot walk at times, his skin burns, and his lungs burn and sting. 19 20 (See Doc. 8 at 3-5, fn. & internal citations omitted.) 21 IV. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS3 22 Defendants submitted the following statements of undisputed facts: 23 3 Because Plaintiff did not file an opposition, he neither admitted nor denied the facts set forth by Defendants as undisputed nor filed a separate statement of disputed facts. Local Rule 260(b). A verified complaint in a pro se civil 24 rights action may constitute an opposing affidavit for purposes of the summary judgment rule where the complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. 25 Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); cf. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (in adjudicating summary judgment motion, court must consider pro se plaintiff’s contentions in motions and pleadings 26 based on personal knowledge and attested to under penalty of perjury). Here, because Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to have admitted those facts not disputed by his complaint or other verified 27 submissions. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020) (deeming defendant’s undisputed facts as admitted after plaintiff failed 1 1. Plaintiff is a California inmate in the custody of the California Department of 2 Corrections and Rehabilitation (CDCR). Plaintiff has been incarcerated at Wasco State 3 Prison since April 2022 until July 2024. 4 2. Defendant Shirley was the Acting Warden of Wasco State Prison in November 2020 5 and the Warden from June 2022 to January 16, 2024. 6 3. Defendant Cronjager became Wasco State Prison’s Associate Warden in 2013 and 7 retired on December 30, 2021. 8 4. At all relevant times, Defendant DeGough was the Correctional Plant Manager at 9 Wasco State Prison that oversees the maintenance of physical plant operations and 10 construction projects at Wasco State Prison. 11 5. 1, 2, 3 – Trichloropropane (TCP) is a manmade chlorinated hydrocarbon that is 12 typically used as an industrial solvent and as a cleaning and degreasing agent. 13 6. In 1992, TCP was added to the list of chemicals known to the State of California to 14 cause cancer under California’s Safe Drinking [and Toxic Enforcement Act. In 1999, 15 the California State Water Quality Control Board established a 0.005 μg/L drinking 16 water notification level for TCP. This level was based on cancer risks derived from 17 laboratory animal studies as reviewed by the U.S. Environmental Protection Agency 18 (EPA). It is reasonably anticipated to be a human carcinogen per the U.S. National 19 Toxicology Program. The International Agency for Research on Cancer (IARC) has 20 also classified TCP as probably carcinogenic to humans based on sufficient evidence 21 of carcinogenicity in experimental animals. There have not been any human studies 22 evaluating the risk of TCP and cancer.]4 23 7. There is no federal [maximum containment level or] MCL for TCP in drinking water, 24 but the U.S. Environmental Protection Agency requires many large water utilities to 25 monitor for TCP with a minimum reporting level of 0.03 ug/L. Some states have 26 27 4 The language appearing within brackets was added as it appeared incomplete; the language was taken directly from the Declaration of Timur S. Durrani, M.D., M.P.H., at paragraph 16 on pages 4 and 5, as identified by Defendants in 1 established their own MCLs. For example, Hawaii established a state MCL of 0.6 2 ug/L. 3 8. In December 2017, a California regulation established a much more stringent MCL of 4 0.005 ug/L. The regulation went into effect on January 1, 2018. The regulation also 5 required all water systems in California to conduct quarterly monitoring for TCP in 6 water sources. 7 9. Wasco State Prison’s water was tested quarterly by an independent laboratory, 8 Environmental Agricultural Analytical Chemists, as required by the regulation. 9 10. Since April 2022 (when Plaintiff arrived at Wasco State Prison), eight quarterly tests 10 have been conducted, the latest in August 2024. [¶] The TCP levels were as follows: 11 12 1st 2nd 3rd 4th 13 Quarter Quarter Quarter Quarter 14 15 2022 .013- .014- .015- .010- 16 .023 .024 .023 .017 17 ug/L ug/L ug/L ug/L 18 2023 .008- .008- .007- .000 – 19 .008 .011 .012 .006 20 ug/L ug/L ug/L ug/L 21 2024 .000- .009- .000 – N/A 22 0.00 .021 .009 23 ug/L ug/L ug/L 24 25 26 27 11. Notices reporting the independent laboratory’s findings were posted throughout the 1 the MCL. 2 12. The quarterly notices stated that Wasco State Prison’s TCP levels do not present an 3 emergency and that inmates do not need to use an alternative source of water, like 4 bottled water. 5 13. The notices did not state that Wasco State Prison’s specific TCP levels were high 6 enough to cause illness. The notices indicated that “some people who drink water 7 containing 1, 2, 3-trichloropropane in excess of the MCL over many years may have 8 an increased risk of getting cancer,” and encouraged those concerned about other 9 health issues to consult a doctor. 10 14. Defendant DeGough was listed as the point of contact for more information. 11 15. Expert evidence shows that Wasco State Prison’s TCP levels were and are not 12 dangerous. 13 16. Defense expert, medical toxicologist Timur Durrani, M.D., M.P.H, reviewed relevant 14 literature, Wasco State Prison’s water records, Plaintiff’s complaint, Plaintiff’s 15 deposition transcript, and Plaintiff’s medical records from October 2015 through July 16 2024. 17 17. There are no reports of acute or chronic medical conditions in scientific literature for 18 an 18-month exposure to the concentration of TCP reported in the water at Wasco 19 State Prison. Thus, Dr. Durrani opined that although Wasco State Prison’s water 20 contained TCP concentrations above the MCL, acute and chronic medical conditions 21 are not expected to occur from exposure to TCP in Wasco State Prison’s water from 22 January 2023 to July 2024. 23 18. Accordingly, Wasco State Prison’s water has been safe to drink at all relevant times, 24 even when it was out of compliance with the new MCL. 25 19. Moreover, Wasco State Prison was never ordered to stop providing its water to 26 inmates or to provide an alternative source of water. 27 20. Plaintiff’s alleged effects of kidney irritation, stomach pain, body rashes, or eye 1 21. Collins’s health history before his exposure to TCP at Wasco State Prison included a 2 right knee and ankle sprain. 3 22. After his alleged exposure, he was noted to have contracted COVID in August of 2022 4 and food poisoning in February of 2023. He was also reported to have gingivitis and 5 tooth decay in August of 2024. 6 23. There is no medical record of Mr. Collins’s alleged effects of kidney irritation, 7 stomach pain, body rashes, or eye irritation at the time of or following the alleged 8 exposure. 9 24. The evidence does not support Mr. Collins’s claimed kidney damage, body rashes, eye 10 irritation, liver pain, and unspecified chronic pain as being caused by exposure to TCP 11 in Wasco State Prison. 12 25. Dr. Durrani calculated Plaintiff’s maximum daily ingestion of TCP as 13 0.0000003628190217 mg/kg/day, based on Plaintiff’s self-reported ingestion of 1.4 14 liters of water per day and body weight of 93.9 kg. 15 26. TCP’s reference dose, meaning the estimated dose of daily oral exposure for a chronic 16 duration that is likely to have no appreciable risk of deleterious effects, is 0.004 17 mg/kg/day. 18 27. Because Plaintiff’s daily, chronic exposure dose of 0.0000003628190217 mg/kg/day is 19 significantly lower[5] than the 0.004 mg/kg/day reference dose, Plaintiff’s exposure to 20 TCP between April 2022 and July 2024, would not be expected to have even a 21 minimal risk of harmful effects during his lifetime. 22 28. As part of California’s TCP MCL regulation, California designated Granular 23 Activated Carbon (GAC) treatment as the best available technology for TCP removal. 24 29. Activated carbon treatment requires installation of several large vessels containing 25 thousands of pounds of activated carbon. 26 30. As water passes through the vessels, the TCP attaches to the carbon granules and 27 5 1 filters out of the water. 2 31. Defendant DeGough worked with the State Water Resources Board to come up with a 3 Corrective Action Plan, which included a Capital Outlay Budget Change Proposal to 4 install a GAC filtration system. 5 32. Wasco State Prison’s Warden at the time, John Sutton, signed off on the plan, which 6 was submitted to the State Water Resources Board and submitted the GAC 7 construction project to the Facility Asset Management Branch on August 31, 2018. 8 33. According to the Capital Outlay Budget Change Proposal, the estimated cost of 9 installing the GAC system was $1,017,100.00. 10 34. Defendant DeGough did not participate further in planning or implementing the 11 Corrective Action Plan. Once the Corrective Action Plan was submitted, Defendant 12 DeGough had no authority to do anything regarding Wasco State Prison’s water 13 supply except issue quarterly notices when the TCP levels in the water system 14 exceeded the MCL. 15 35. Between August 2018 and April 2021, the Facilities Management Group reviewed and 16 researched the proposed Corrective Action Plan. 17 36. On April 20, 2021, the Facilities Management Group received final drawings and 18 specifications approval and initiated the bid process for the proposed GAC system. 19 37. In September 2021, the Facilities Management Group submitted contract documents to 20 CDCR’s Office of Business Services (OBS). 21 38. By May 5, 2022, CDCR accepted W.M. Lyles Construction’s bid to install the GAC 22 system. 23 39. Construction began on November 1, 2022. 24 40. By July 24, 2023, foundation excavation, underground utilities, and piping installation 25 had begun. 26 41. By January 29, 2024, the cement foundation was completed, and the GAC vessels 27 were set with partial piping and valving. However, inclement weather delayed 1 42. The influent and effluent piping was installed by April 24, 2024. 2 43. By August 7, 2024, the installation of Variable Frequency Drives was 80% complete 3 with Variable Frequency Drives installation in progress. 4 44. As of August 4, 2024, the Variable Frequency Drives are operational, and the 5 chlorination and bacterial testing of the GAC vessels and related piping has been 6 completed. The GAC installation project was 80% complete with vessel loading and 7 activation of the GAC system scheduled to follow. 8 45. Defendant Shirley had very little involvement or responsibility in responding to 9 Wasco State Prison’s TCP levels. 10 46. Defendant Shirley had no authority to authorize a project the size of the TCP removal 11 plant. 12 47. When Defendant Shirley became the Acting Warden in November 2020, CDCR and 13 Wasco State Prison had already determined that the best approach to bringing the 14 water into compliance with the MCL would be to install the GAC system. 15 48. Defendant Shirley deferred to the expertise of Wasco State Prison’s plant operations 16 staff and CDCR staff on matters regarding TCP compliance. The staff working on the 17 GAC project regularly reported the progress of the project to Defendant Shirley. 18 49. While she was acting Warden and Warden, Defendant Shirley and her staff 19 transmitted quarterly water tests to the State Water Resources Board, posted quarterly 20 notices required by regulation regarding the TCP levels, and provided annual 21 consumer confidence reports regarding the quality of Wasco State Prison’s water. 22 50. While Defendant DeGough was listed as the point of contact on the quarterly water 23 notices to Wasco State Prison inmates, the notices are templates provided by the State 24 Water Resources Board and the TCP levels are based on an independent laboratory’s 25 findings. 26 51. Moreover, Defendant DeGough did not relay false information about Wasco State 27 Prison’s TCP water levels and related risks. 1 limited to, supervising the overall operations of Wasco State Prison’s physical plant. 2 53. However, Defendant Cronjager is not a water expert, and it was not part of his job 3 duties or responsibilities to investigate or second guess independent laboratory 4 findings or the State Water Resources Board’s information concerning Wasco State 5 Prison’s TCP levels. Further, he was not personally involved in the day-to-day 6 activities of plant operations staff he supervised. Rather, Defendant Cronjager relied 7 on their expertise to work with CDCR’s Facility Planning, Construction and 8 Management division to come up with a plan to treat the water to bring it into 9 compliance with state regulation. 10 54. Defendants were not aware that Wasco State Prison’s water presented any risk to any 11 inmate or staff. 12 55. Specifically, Defendants were informed by the State Water Resources Board that the 13 TCP levels in Wasco State Prison’s water did not present a health concern. 14 56. Defendants Shirley and DeGough were never informed that Wasco State Prison’s 15 water presented an immediate danger to Plaintiff or to any other inmate or staff while 16 it was out of compliance with the new MCL. 17 57. Defendant Cronjager retired from CDCR over a year before Plaintiff arrived at Wasco 18 State Prison. Defendant Cronjager had no duty to ensure that Wasco State Prison’s 19 water did not present an immediate danger to Plaintiff during his incarceration at 20 Wasco State Prison. 21 58. Additionally, Defendants were never informed that an alternative water source was 22 necessary while the GAC filtration system was being designed and built. 23 59. There is no evidence that Plaintiff ingested or was exposed to toxic or harmful doses 24 of TCP from any source. 25 60. It is Dr. Durrani’s expert opinion that Plaintiff did not become ill from ingesting or 26 being exposed to the TCP concentrations in Wasco State Prison’s water, that his future 27 health will not be affected, and that he does not have any risk of developing the 1 61. No doctor has ever diagnosed any of Plaintiff’s claimed conditions as being caused by 2 TCP. 3 62. Collins has not seen a doctor for his kidneys. 4 (See Doc. 44-8 & Doc. 46-1 [Amended].)6 5 V. DISCUSSION 6 Defendants contend they were not deliberately indifferent to the non-dangerous levels of 7 TCP in Wasco State Prison’s water. (Doc. 44-1 at 13.) Specifically, they maintain the water did 8 not present a substantial risk of serious harm (id. at 14-16) and that they reasonably responded to 9 any risk posed by TCP (id. at 16-18). Lastly, Defendants argue they are entitled to qualified 10 immunity. (Id. at 18-21.) Plaintiff has not offered any opposition to Defendants’ arguments. 11 Briefly stated, Defendants’ evidence establishes that although the water at Wasco State 12 Prison exceeded the MCL for TCP in California, during the relevant period, the prison’s water 13 was safe to drink. Further, Plaintiff’s physical complaints are inconsistent with exposure to TCP. 14 And Plaintiff’s maximum exposure during the relevant period was miniscule compared to the 15 dosage or amount considered likely to have even a minimal risk of harm. Concerning Defendant 16 DeGough, Defendants’ evidence establishes that DeGough worked with various authorities to 17 address the TCP in the water at Wasco State Prison, and after the corrective action plan7 was 18 approved in August 2018, DeGough issued quarterly notices when the TCP levels exceeded the 19 MCL, but he had no authority to take any further action. Concerning Defendant Shirley, the 20 evidence establishes that during Shirley’s tenure, the corrective action plan was already in place 21 and approved. Shirley deferred to plant operations and other staff with expertise in TCP 22 compliance and transmitted and posted required notices and provided annual reports regarding 23 water quality of Wasco State Prison. As concerns Defendant Cronjager, the evidence reveals that 24 he was not personally involved in the TCP water remediation plan and relied on the CDCR’s 25 26 6 Hereafter “UDF” followed by the relevant number. 27 7 The plan involved installation of a Granular Activated Carbon filtration system. Construction began on November 1, 2022, and was 80 percent complete as of August 7, 2024. (See Doc. 44-6, ¶¶ 9-11, 15-19 [Declaration of S. 1 experience and the approved plan to treat the water and to bring it in compliance with the state 2 regulation. Additionally, Defendant Cronjager retired before Plaintiff arrived at Wasco State 3 Prison. Further, the Defendants were not aware of any risk posed to inmates or staff by the water 4 at Wasco State Prison, nor were they informed that an alternative source of water was necessary 5 at the facility. Defendants were informed by the State Water Resources Board that TCP levels in 6 Wasco State Prison’s water did not present a danger. 7 The Court has reviewed all the evidence presented, including the supporting declarations 8 of T. Durrani, H. Shirley, J. Cronjager, and Mohammad Iranmanesh. The Court concludes that 9 Defendants’ have presented evidence that Wasco State Prison’s water did not present an 10 objectively serious risk of harm. See UDF Nos. 10, 12-13, 15, 17,19, 25-27. Further, Defendants 11 have presented evidence indicating that Plaintiff did not consult a physician concerning any 12 kidney issues nor has any physician ever diagnosed the symptoms he allegedly suffered as being 13 caused by consuming the water at Wasco State Prison. See UDF Nos. 58-61. Next, Defendants 14 have presented evidence that they responded reasonably to any risk that TCP presented at Wasco 15 State Prison. See UDF Nos. 10-13, 19, 28, 31-43, 45, 47, 50-51, 52-53, 55-57. In short, 16 Defendants have met their initial burden by demonstrating there is no genuine dispute as to any 17 material fact. Fed. R. Civ. P. 56(a). Thus, the burden shifts to Plaintiff as the non-moving party to 18 establish that a genuine issue as to any material fact actually does exist. Matsushita, 475 U.S. at 19 586. Plaintiff has failed to do so; he has tendered no evidence to support his claims in this action. 20 Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. 21 The assertions made in Plaintiff’s complaint do not establish the existence of any factual 22 dispute. See Fed. R. Civ. P. 56(c); Beard, 548 U.S. at 527; McElyea, 833 F.2d at 197-98. And 23 Plaintiff has completely failed to offer proof concerning the essential elements of his Eighth 24 Amendment failure to protect claims against Defendants. Celotex, 477 U.S. at 322; see Farmer, 25 511 U.S. at 832-33, 847; Labatad, 714 F.3d at 1160; Foster, 554 F.3d at 812; Frost, 152 F.3d at 26 1128. Plaintiff has not demonstrated, nor does it appear he could demonstrate, that Defendants 27 knew of and disregarded an excessive risk to his health and safety. Farmer, 511 U.S. at 834. 1 | genuine issue for trial in this matter. Matsushita, 475 U.S. at 587. Defendants are entitled to 2 | summary judgment.® 3 VI. CONCLUSION AND ORDER 4 Based on the foregoing, this Court HEREBY ORDERS that: 5 1. Defendants’ motion for summary judgment (Doc. 44) is GRANTED; and 6 2. The Clerk of the Court be directed to enter judgment in favor of Defendants Shirley, 7 DeGough, and Cronjager, and to close this case. 8 | IT IS SO ORDERED. | Dated: _ June 5, 2025 | hr 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ——_ioi@i@ ————— 8 Because the Court has found that Defendants are entitled to judgment on the merits, the Court does not reach 28 || Defendants’ alternative argument that they are entitled to qualified immunity. 15