                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DARNELL T. HINES,                        No. 15-16145
               Plaintiff-Appellant,
                                           D.C. No.
                 v.                     1:13-cv-00357-
                                           AWI-JLT
ASHRAFE E. YOUSEFF, M.D.;
GODWIN C. UGUEZE, M.D.; JOSHUA
GARZA, RNP; M. AGUIRRE,
            Defendants-Appellees.


      Appeal from the United States District Court
         for the Eastern District of California
      Anthony W. Ishii, District Judge, Presiding
2                     HINES V. YOUSEFF

ARTHUR DUANE JACKSON; LEONARD            No. 15-17076
M. LUJAN; MARCUS JACKSON;
RODNEY TAYLOR; LACEDRIC W.                  D.C. No.
JOHNSON; L. T. BELTON; NORMAN            1:13-cv-01055-
JOHNSON; COREY LAMAR SMITH;                 LJO-SAB
FREDERICK BEAGLE; ABDULLE
ABUKAR,
                Plaintiffs-Appellees,

                 v.

EDMUND G. BROWN, JR., Governor;
MATTHEW CATE, Secretary,
California Department of
Corrections and Rehabilitation;
JEFFREY BEARD, Secretary,
California Department of
Corrections and Rehabilitation;
PAUL D. BRAZELTON, Warden,
Pleasant Valley State Prison; JAMES
D. HARTLEY, Warden, Avenal State
Prison,
              Defendants-Appellants.
                HINES V. YOUSEFF                    3

COREY LAMAR SMITH; DION            No. 15-17155
BARNETT; CHRISTOPHER E. GARNER;
RODNEY RAY ROBERTS; JEREMY            D.C. No.
ROMO; DANNY DALLAS; FREDERICK      1:14-cv-00060-
BEAGLE; DON BELARDES; FLOYD           LJO-SAB
BOYD; RICHARD BURKE; JOSEPH
BUSTAMONTE; CHARLES JOSEPH
CARTER; OTHA CLARK; DONALD
DIBBLE; JEROME FELDER;
CANDELARIO GARZA; JEREMY LEE
HOLLIS; SCOTT IMUTA; GEORGE
JOHNSON; BRUCE KOKLICH; GRADY
MONTGOMERY; PETER ROMERO;
JOSH THOMAS; AARON TILLIS; RENE
VILLANUEVA; BERTRUM
WESTBROOK; WAYNE JAMES
WOODS; ABDULLE ABUKAR; RUBEN
ARECHIGA; JOHN WESLEY BESS;
MICHAEL BLUE; DAVID COX;
ORLANDO CRESWELL; DANIEL
DAYTON; PABLO DOMINGUEZ; JOSH
DRAPER; KENJI DOMINIQUE
JACKSON; ALBERT SHERROD;
ADRIAN SEPULVEDA; KIRK SMITH;
HECTOR TALAMANTES; ISMAEL
TORRES-ROBLES; KENNETH
WASHINGTON; THOMAS WILEY;
DARREN CHARLES WILLIAMS;
THEODORE WOOD; DONALD
WRIGHT; GEORGE YOUNT; GARLAND
BAKER; CHARLES MCQUARN;
RICHARD ADAMS; DAVID ATZET;
DERRICO AUBREY; DANIEL BOLAND;
4               HINES V. YOUSEFF

CHRISTOPHER BONDS; KEEVAN
BURKS; KEVIN CALL; JOSEPH
DEJESUS; GERALD W. DICKSON;
ERIC DONALDSON; ROY LEE DOSS;
JOSEPH ALFONSO DURAN; JAMES
FARR; JOSEPH FERRIS; ALVIN
FLOWERS; STEPHEN FRANKLIN;
AUBREY GALLOWAY; JOHN RAY
GHOLAR; ROBERT GONZALEZ;
VERNON GRANT; WALTER GREEN;
ROBERT HARRIS; SINOA HERCULES;
BRET HILL; ADRIAN JOHNSON; ELLIS
CLAY HOLLIS; EDWARD JONES;
ANTHONY R. JONES; LAWRENCE
KERNER; TITI LAVEA; CLEOFAS
LEWIS; MICHAEL MANNING; ROBERT
MAESCHEK; DANIEL MASUSHIGE;
ELLIS MCCLOUD; BRANDON
MCDONALD; JEFFREY MCDONALD;
JUAN MEZA; HERSCHEL MITCHELL;
NOEL MORALES; RAYMOND
NEWSOM; JESUS ANTONIO PEREZ;
HARVEY RAYBURN; JORGE AUGUSTO
REYES; JAY ROACH; PAUL
RICHARDSON; TYRONE SANDERS;
JOHNNY O. SANCHEZ; EDWARD
SPENCE; TRACY L. STEWART; LOUIS
THOMAS; ELONZA JESSE TYLER;
VANCE UTLEY; BYRON WEST;
WILLIAM WILEY; RODNEY
WILLIAMS; ROBERT WOLTERS;
MICHAEL MORROW; DAMOR HILL;
COREY CAMPBELL; ROBERT
                      HINES V. YOUSEFF   5

CONLEY; SINOHE HERCULES; JUAN
CARLOS MARTINEZ; JUAN PENALVA;
ROBERT PRESTON, JR.; JOHN
ARTHUR RUGGLES; WILLIE STEELS;
SOLOMON VASQUEZ; GEORGE
LEWIS; RICHARD ARTEAGA; PABLO
CASTANEDA; CHANEY CLIFFORD;
CAMPBELL COREY; ROBERT
CONLEY; ALVIN COOPER; KENNETH
GLEN CORLEY; WALTER
CORNETHAN; ROY CORNING; DENNIS
DUREE; SINOHE HERCULES; CARLOS
HERNANDEZ; DAMOR HILL; DANILO
JALOTLOT; ASAD LEWIS; GEORGE
LEWIS; JOE M. LEWIS; JUAN
MARTINEZ; THOMAS MILFORD;
DALE MILLER; DANIEL MOLEN;
ANDRE MOODY; MICHAEL
MORROW; FREDDY NEAL; CHEK
NGOUN; SIM PEAV; JUAN PENALVA;
MARVIN PIERCE; ROBERT PRESTON,
JR.; DAVID ROBINSON; RONALD
RODRIGUEZ; JOHN ARTHUR
RUGGLES; LORENZO SAMS; LEROY
SMITH; WILLIE STEELS; MAURICE
THOMAS; TYRONE THOMPSON;
ROBERTO VASQUEZ; SOLOMON
VASQUEZ; PATRICK WALLACE;
XAVIER S. WILLIAMS; KENNETH
YANCEY,
               Plaintiffs-Appellants,

                 v.
6                HINES V. YOUSEFF


ARNOLD SCHWARZENEGGER,
Governor; MATTHEW CATE; JAMES
D. HARTLEY, Warden; JEFFREY A.
BEARD; PAUL D. BRAZELTON,
Warden; SUSAN L. HUBBARD;
DEBORAH HYSEN; SCOTT KERNAN;
CHRIS MEYER; TONYA R.
ROTHCHILD; TERESA SCHWARTZ;
JAMES A. YATES, Warden; DWIGHT
WINSLOW, M.D.; FELIX IGBINOSA,
M.D.; EDMUND G. BROWN, JR.,
Governor,
            Defendants-Appellees.
                            HINES V. YOUSEFF                            7

 LORENZO GREGGE, JR.,                                 No. 15-17201
               Plaintiff-Appellant,
                                                        D.C. No.
                       v.                            1:15-cv-00176-
                                                        LJO-SAB
 MATTHEW CATE; RALPH DIAZ,
 Secretary, California Department of
 Corrections and Rehabilitation;*                       OPINION
 JAMES A. YATES, Warden,
                Defendants-Appellees.


           Appeal from the United States District Court
              for the Eastern District of California
           Lawrence J. O’Neill, Chief Judge, Presiding

              Argued and Submitted May 17, 2017
                   San Francisco, California

                      Filed February 1, 2019




       *
         With respect to all official capacity claims, Ralph Diaz is
substituted for his predecessor, Matthew Cate, as Acting Secretary for the
California Department of Corrections and Rehabilitation. Fed. R. App. P.
43(c)(2). The other defendants who held public office when the
complaints were filed were sued in their individual capacities.
8                        HINES V. YOUSEFF

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

                   Opinion by Judge Kleinfeld


                          SUMMARY****


                      Prisoner Civil Rights

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

    Plaintiffs alleged that exposing them to a heightened risk
of getting Valley Fever was cruel and unusual punishment in
violation of the Eighth Amendment. African-American
inmates also added a challenge under the Equal Protection
Clause of the Fourteenth Amendment. They alleged that
because African-American inmates were particularly likely to


     **
        The original panel, consisting of Judge Kleinfeld, Judge Wardlaw,
and Judge Peterson, heard oral argument May 17, 2017. Judge Wardlaw
recused herself while the case was under submission, and Judge Ikuta was
drawn to replace Judge Wardlaw. Judge Ikuta has read the briefs,
reviewed the record, and listened to the tape of oral argument.
    ***
       The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.
    ****
         This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      HINES V. YOUSEFF                         9

get Valley Fever and suffer serious consequences, they
should have been segregated from the prisons with the
highest infection rates.

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

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

                         COUNSEL

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

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

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

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

Kristina Doan Gruenberg and Susan E. Coleman, Burke
Williams & Sorensen LLP, Los Angeles, California, for
Defendants-Appellees Igbinosa and Winslow.
                       HINES V. YOUSEFF                          11

                           OPINION

KLEINFELD, Senior Circuit Judge

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

                             FACTS

    A. The Federal Receiver

     For years, inmates in California state prisons have
claimed that the state violates the Eighth Amendment by
failing to provide sufficient medical care. Many inmates
have sued. In 2002, California signed a consent decree in one
such case, Plata v. Davis. As part of that decree, California
promised to implement specific procedures to ensure that
inmates statewide received constitutionally adequate medical
care.1 But the state did not satisfy the terms of the decree, so



    1
      Plata v. Davis, No. 01-cv-01351 (N.D. Cal. June 13, 2002), ECF
No. 68.
12                     HINES V. YOUSEFF

in 2006 the Plata district court appointed a federal Receiver.2
The court conferred on the Receiver “all powers vested by
law in the Secretary of the [California Department of
Corrections and Rehabilitation] as they relate to the
administration, control, management, operation, and
financing of the California prison medical health care
system.”3      The court concurrently “suspended” the
Department of Corrections and Rehabilitation’s exercise of
those powers “for the duration of the Receivership.”4 The
Receiver has filed papers with the Plata district court, and the
district court has entered orders to improve medical care.5

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




     2
       Plata v. Schwarzenegger, No. 01-01351, 2005 WL 2932253 (N.D.
Cal. Oct. 3, 2005), ECF No. 371.
     3
    Plata v. Schwarzenegger, No. 01-01351 (N.D. Cal. Feb. 14, 2006),
ECF No. 473.
     4
         Id.
     5
      See Plata v. Schwarzenegger, 603 F.3d 1088, 1091–92 (9th Cir.
2010) (recounting the history of the receivership); Plata v. Brown,
754 F.3d 1070, 1079–80 (9th Cir. 2014) (providing a timeline of the
receivership).
                       HINES V. YOUSEFF                          13

    B. Valley Fever

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

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


    6
       See Centers for Disease Control & Prevention, Summary of
Notifiable Infections Diseases and Conditions, 2015, 64 MORBIDITY &
MORTALITY WKLY. REP. 1, 13 (Aug. 11, 2017); Centers for Disease
Control & Prevention, Increase in Reported Coccidioidomycosis—United
States, 1998–2011, 62 MORBIDITY & MORTALITY WKLY. REP. 217, 217
(Mar. 29, 2013).
14                   HINES V. YOUSEFF

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

     C. Valley Fever in California Prisons

    In 2005, California prison officials noticed a “significant
increase” in the number of Valley Fever cases among
prisoners. The federal Receiver asked the California
Department of Health Services to investigate the outbreak at
Pleasant Valley State Prison, the prison with the highest
infection rate. After its investigation, the Department of
Health Services issued a report in January 2007. It stated that
Pleasant Valley State Prison had 166 Valley Fever infections
in 2005, including 29 hospitalizations and four deaths. The
infection rate inside the prison was 38 times higher than in
the nearby town and 600 times higher than in the surrounding
county. According to the report, “the risk for extrapulmonary
complications [was] increased for persons of African or
Filipino descent, but the risk [was] even higher for heavily
immunosuppressed patients.” The report then explained that
physically removing heavily immunosuppressed patients
from the affected area “would be the most effective method
to decrease risk.” The report also recommended ways to
reduce the amount of dust at the prisons. After receiving the
health department’s recommendations, the Receiver convened
                     HINES V. YOUSEFF                       15

its own committee. In June 2007, the Receiver’s committee
made recommendations that were similar to those from the
health department.

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

     In April 2012, the prison system’s own healthcare
services released a report examining Valley Fever in prisons.
The report concluded that despite the “education of staff and
inmates” and the “exclusion of immunocompromised
inmates,” there had been “no decrease in cocci rates.” The
authors found that Pleasant Valley State Prison inmates were
still much more likely to contract Valley Fever than citizens
of the surrounding county. From 2006 to 2010, 7.01% of
inmates at Pleasant Valley State Prison and 1.33% of inmates
at Avenal State Prison were infected. By comparison, the
16                        HINES V. YOUSEFF

highest countywide infection rate was 0.135%, and the
statewide rate was just 0.007%. From 2006 to 2011,
36 inmates in the Central Valley prisons died from Valley
Fever. Prison healthcare services also found that male
African-American inmates were twice as likely to die as other
inmates. Each year, about 29% of the male inmates in
California are African-American, but 50% of the inmates who
developed disseminated cocci between 2010 and 2012 were
African-American, and 71% of the inmates who died from
Valley Fever between 2006 and 2011 were African-
American.

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

    There are several theories for why Valley Fever was more
common inside the Central Valley prisons than in the
surrounding areas. One theory is that new construction and
excavation stirred up the soil, allowing the breeze to circulate
the fungal spores. Many of the prisons were newly
constructed or were being expanded during the outbreaks.
Pleasant Valley State Prison, which had the highest rate of
Valley Fever, was next door to a large construction project.


     7
         Plata v. Brown, ECF No. 2580.
     8
         Plata v. Brown, ECF No. 2618.
     9
       Plata v. Brown, No. 01-01351, 2013 WL 3200587 (N.D. Cal. June
24, 2013), ECF No. 2661.
                       HINES V. YOUSEFF                           17

Some prisons did not stop the airflow into their buildings on
windy days. The prisons also might be built where there are
more fungal spores or where the spores are more virulent.

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

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


    10
      From 2000 to 2010, about 29% of California’s male inmates were
African-American. Just 7% of Californians were African-American. CAL.
DEP’T OF CORR. & REHAB., CALIFORNIA PRISONERS & PAROLEES 2010, at
20 (2011); 2010 Census Briefs, U.S. CENSUS BUREAU, at 8 (last visited
January 31, 2019), https://www.census.gov/prod/cen2010/briefs/c2010b
r-06.pdf.
18                   HINES V. YOUSEFF

that Valley Fever is more widespread among the civilian
population than the statistics indicate, because of lower
diagnosis rates rather than lower incidence rates among
civilians.

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

     D. The Cases on Appeal

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

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

   In Gregge v. Cate, prison doctors diagnosed Gregge with
cocci-meningitis while he was incarcerated at Pleasant Valley
                     HINES V. YOUSEFF                       19

State Prison. He sued the prison warden and others for
violating the Eighth Amendment. As in Smith, the district
court dismissed the complaint under Rule 12(b)(6) based on
qualified immunity. It did not grant leave to amend. Gregge
appeals.

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

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

                    STANDARDS OF REVIEW

   We have jurisdiction over all four appeals.11 We do not
have jurisdiction over the Plata decree, and it is not on
appeal. We review whether the officials are entitled to
qualified immunity de novo12 and the denial of leave to
amend for abuse of discretion.13

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


     11
          28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
     12
          Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007).
     13
          Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017).
     14
       Gregg v. Hawaii Dep’t of Pub. Safety, 870 F.3d 883, 886–87 (9th
Cir. 2017); Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).
     15
       Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
quotation marks omitted).
     16
          Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
                            HINES V. YOUSEFF                  21

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

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

                                ANALYSIS

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

I. PERSONAL INVOLVEMENT

   The inmates sued the officials under 42 U.S.C. § 1983.
That means the inmates must show that each defendant

    17
         FED. R. CIV. P. 56(a), (c).
22                          HINES V. YOUSEFF

personally played a role in violating the Constitution.18 An
official is liable under § 1983 only if “culpable action, or
inaction, is directly attributed to them.”19

    The plaintiff in Hines argues that prison officials were
deliberately indifferent to a substantial risk of serious harm
when they housed him in the Central Valley. But the plaintiff
has failed to demonstrate that defendants Joshua Garza, Dr.
Godwin Ugeze, and Dr. Ashrafe Youseff were personally
involved in any Eighth Amendment violations. Garza, a
nurse practitioner, did not have any discretion to determine
whether Hines should have been excluded from prisons in the
Central Valley. There is also no evidence that Garza actually
determined whether Hines should have been excluded from
the Central Valley. There is no evidence that Dr. Ugeze was
personally involved in determining what categories of
inmates to exclude from the Central Valley. Instead, he was
instructed to simply follow the exclusion criteria developed
by others. And there is no evidence that Dr. Youseff had any
contact with Hines. So the district court was right to dismiss
those defendants from the case.20

II. CRUEL AND UNUSUAL PUNISHMENT

    The inmates allege that the defendant state officials
violated the Eighth Amendment’s prohibition on “cruel and


     18
      Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005);
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
     19
          Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011).
    20
       See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)
(permitting us to affirm on any ground supported by the record).
                          HINES V. YOUSEFF                            23

unusual punishments” by being deliberately indifferent to the
inmates’ heightened risk of getting Valley Fever.21 The
district courts in Smith, Gregge, and Hines held that the
officials are entitled qualified immunity against those claims.
Reviewing de novo, we affirm. Any Eighth Amendment
right to be free from heightened risk of Valley Fever was not
clearly established when the officials acted.

    None of the cases before us seek an injunction that would
regulate how the state assigns inmates to the Central Valley
or how it addresses the risk of Valley Fever. That is the
subject of the Plata case, which is not before us. The cases
before us are only about whether individual defendants can be
held liable for money damages because of allegedly
unconstitutional acts and omissions.

    To determine whether an official is entitled to qualified
immunity, we ask two questions: (1) whether the official’s
conduct violated a constitutional right; and (2) whether that
right was “clearly established” at the time of the violation.22
Helling v. McKinney sets out the constitutional framework for
Eighth Amendment claims about involuntary exposure to
environmental hazards.23 It held that an Eighth Amendment
claim against an official for unconstitutional prison
conditions requires an inmate to prove both an objective and
a subjective factor.

    21
       See U.S. CONST. amend. VIII (“Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.”).
    22
         Castro v. Cty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en
banc).
    23
         509 U.S. 25 (1993).
24                      HINES V. YOUSEFF

    For the objective factor, inmates must establish “that it is
contrary to current standards of decency for anyone to be . . .
exposed against his will” to the hazard.24 This “requires more
than a scientific and statistical inquiry into the seriousness of
the potential harm and the likelihood that such injury to
health will actually be caused.”25 Instead, courts must “assess
whether society considers the risk that the prisoner complains
of to be so grave that it violates contemporary standards of
decency to expose anyone unwillingly to such a risk,”
meaning that the risk “is not one that today’s society chooses
to tolerate.”26

    For the subjective factor, inmates must show that the
official is “deliberately indifferent” to the inmate’s
suffering.27 In Farmer v. Brennan, the Supreme Court
explained that this standard means that an official is liable
“only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take
reasonable measures to abate it.”28

    The courts below did not decide whether exposing
inmates to a heightened risk of Valley Fever violates the
Eighth Amendment. Neither do we. Instead, we go straight
to the second prong of the qualified immunity analysis:


     24
          Id. at 35.
     25
          Id. at 36.
     26
          Id.
     27
          Id. at 35.
    28
       511 U.S. 825, 847 (1994); see also Mendiola-Martinez v. Arpaio,
836 F.3d 1239, 1248–49 (9th Cir. 2016).
                         HINES V. YOUSEFF                             25

whether a right to not face a heightened risk was “clearly
established” at the time. A right is clearly established if it
was “sufficiently clear that every reasonable official would
[have understood] that what he is doing violates that right.”29
That is, the issue must have been “beyond debate.”30 In
determining what is clearly established, we must look at the
law “in light of the specific context of the case, not as a broad
general proposition.”31

    Applying those principles to the cases at hand, we
conclude that the specific right that the inmates claim in these
cases—the right to be free from heightened exposure to
Valley Fever spores—was not clearly established at the time.
A reasonable official could have concluded that the risk was
not so grave that it violates contemporary standards of
decency to expose anyone unwillingly to such risk, or that
exposure to the risk was lawful.

    A. Other Valley Fever Cases

    The inmates’ alleged constitutional right would be
“clearly established” if “controlling authority or a robust
consensus of cases of persuasive authority” had previously
held that it is cruel and unusual punishment to expose




    29
      Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation
marks omitted).
    30
      Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (internal
quotation marks omitted).
    31
       Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal
quotation marks omitted).
26                          HINES V. YOUSEFF

prisoners to a heightened risk of Valley Fever.32 But no such
precedent exists. The inmates argue that several of our
memorandum dispositions clearly establish their right to not
face an unreasonable risk of Valley Fever. But memorandum
dispositions do not establish law.33 They are, at best,
persuasive authority. And more importantly, none of the
cited memorandum dispositions held that inmates have an
Eighth Amendment right to not be exposed to a heightened
risk of Valley Fever.34 The inmates also point us to
unpublished district court decisions about Valley Fever
exposure. We have previously said that unpublished district
court decisions “may inform our qualified immunity
analysis.”35 But we have also noted that “it will be a rare
instance in which, absent any published opinions on point or
overwhelming obviousness of illegality, we can conclude that
the law was clearly established on the basis of unpublished
decisions only.”36 And at most, the cited district court
opinions show that the law was developing—not that it was
already clearly established.37


     32
          Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018).
     33
          See Ninth Circuit Rule 36-3(a).
     34
        See Holley v. Scott, 576 F. App’x 670, 670 (9th Cir. 2014); Johnson
v. Pleasant Valley State Prison, 505 F. App’x 631, 632 (9th Cir. 2013);
Jones v. Igbinosa, 467 F. App’x 604, 605 (9th Cir. 2012); Smith v.
Schwarzenegger, 393 F. App’x 518, 519 (9th Cir. 2010).
     35
          Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).
     36
          Id.
     37
      See Clark v. Igbinosa, No. 1:10-cv-01336, 2011 WL 1043868, at
*2 (E.D. Cal. Mar. 21, 2011); James v. Yates, No. 1:08-cv-01706, 2010
WL 2465407, at *4 (E.D. Cal. June 15, 2010).
                           HINES V. YOUSEFF                          27

    We therefore conclude that when the officials acted,
existing Valley Fever cases did not clearly establish that they
were violating the Eighth Amendment.

    B. Eighth Amendment Principles

    Of course, we do not require that heightened exposure to
Valley Fever must have been previously held unlawful.38 The
qualified immunity analysis does not require a case on all
fours. What matters is whether “existing precedent . . .
placed the statutory or constitutional question beyond
debate,” not whether the debate has already taken place.39 An
officer loses qualified immunity, even in novel factual
circumstances, if he or she commits a “clear” constitutional
violation.40 This rule prevents absurd results. As then-Judge
Gorsuch once explained, “some things are so obviously
unlawful that they don’t require detailed explanation and
sometimes the most obviously unlawful things happen so
rarely that a case on point is itself an unusual thing. Indeed,
it would be remarkable if the most obviously unconstitutional
conduct should be the most immune from liability only
because it is so flagrantly unlawful that few dare its
attempt.”41

    But this case does not involve a “clear” or “obvious”
violation. The inmates must show that “every reasonable

    38
         See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
    39
         Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
    40
         Farmer, 511 U.S. at 847.
    41
       Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir.
2015).
28                         HINES V. YOUSEFF

official would [have understood]” that exposing them to a
heightened risk of Valley Fever violated the Eighth
Amendment.42 More specifically, they must show that no
reasonable officer could have thought that free society
tolerated that risk.43 They have not met that burden for two
reasons: a federal court supervised the officials’ actions, and
there is no evidence that “society’s attitude had evolved to the
point that involuntary exposure” to such a risk “violated
current standards of decency,”44 especially given that millions
of free individuals tolerate a heightened risk of Valley Fever
by voluntarily living in California’s Central Valley and
elsewhere. Those two facts mean that a reasonable official
could have thought that he or she was complying with the
Constitution.

    It is especially significant that state officials could have
reasonably believed that they were not violating the inmates’
Eighth Amendment rights because the officials reported to the
federal Receiver. The Plata district court appointed a federal
Receiver in 2006—just a year after the Valley Fever outbreak
began. The receiver entered orders about Valley Fever.
Studies were conducted, and in 2010, the Receiver amended
the policy excluding certain inmates from the Central Valley.
Thus the federal Receiver appointed by the federal court to
assure Eighth Amendment compliance actively managed the
state prison system’s response to Valley Fever.



     42
      Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation
marks omitted).
     43
          See Helling v. McKinney, 509 U.S. 25, 36 (1993).
     44
          Id. at 29.
                          HINES V. YOUSEFF                        29

     Because the Receiver oversaw prison medical care and
protective measures regarding Valley Fever, state officials
could have reasonably believed that their actions were
constitutional so long as they complied with the orders from
the Receiver and the Plata court. The inmates do not claim
that state officials defied the Plata Receiver. The Receiver
promulgated orders directed specifically to the Valley Fever
problem, and the inmates do not claim that the defendants
defied those orders and that the defiance harmed them. The
inmates fault the officials for not following various
recommendations made before 2013. For example, in 2007
the California Department of Health Services recommended
covering the prison grounds, but the soil was not stabilized
until 2011 after the prisons got funding from the Receiver.
Other recommendations were never adopted. But the inmates
do not argue that the officials disobeyed the Receiver’s
binding orders, only that the officials did not promptly follow
recommendations that were not orders. In determining what
constituted the constitutionally sufficient level of protection,
an official could reasonably have thought that it sufficed to
comply with the Receiver’s orders.45 As we once stated in a
different context, “no reasonable prison official would
understand that executing a court order without investigating
its potential illegality would violate [a] prisoner’s right to be
free from cruel and unusual punishment.”46

    Second, millions of people live in the Central Valley.
This includes many African-Americans and others with a
heightened risk of getting Valley Fever. Many people also
work in the same prisons where the inmates live, exposed to


    45
         Stein v. Ryan, 662 F.3d 1114, 1119–20 (9th Cir. 2011).
    46
         Id.
30                         HINES V. YOUSEFF

the same fungal spores as the inmates. These people
voluntarily live and work in the Central Valley despite a
heightened risk of getting Valley Fever. Likewise, people
live in Arizona despite the risk of getting Valley Fever. Each
year, two-thirds of all Valley Fever cases are reported in
Arizona. And from 1998 to 2016, the infection rate in
Arizona nearly tripled.47 The infection rate is particularly
high around Phoenix, Arizona.48 Yet Arizona’s population
grew an estimated 35.1% between 2000 and 2016.49 Where
large numbers of people are exposed to a known risk, and yet
no societal consensus has emerged that the risk is intolerably
grave, a reasonable official can infer that the risk is one
society is prepared to tolerate, like the risk of being injured or
killed in a traffic accident.

    Because so many people freely chose to live in the
Central Valley despite the Valley Fever risk, and there is no
evidence in the record that “society’s attitude had evolved to
the point that involuntary exposure” to either the heightened
risk inside prison or the lower risk outside prison “violated
current standards of decency,”50 it would not have been
“clear” to every reasonable officer that the inmates had a
valid claim under Helling. The inmates have failed to show
that every reasonable officer would have thought that “it


     47
     ARIZ. DEP’T OF HEALTH SERVS., VALLEY FEVER 2016 ANNUAL
REPORT 20 (2017).
     48
          Id. at 16, 22.
     49
       American FactFinder, U.S. CENSUS BUREAU (last visited July 16,
2018), https://factfinder.census.gov/bkmk/cf/1.0/en/state/arizona/popula
tion/pep_est.
     50
          Helling v. McKinney, 509 U.S. 25, 29 (1993).
                               HINES V. YOUSEFF                      31

violate[d] contemporary standards of decency to expose
anyone involuntarily to such a risk,” that is, that the risk of
Valley Fever in the prisons was “not one that today’s society
chooses to tolerate.”51

    We therefore affirm the district court rulings in Hines,
Smith, and Gregge holding that the officials are entitled to
qualified immunity against the Eighth Amendment claims.
We also hold that the district courts did not abuse their
discretion in denying the inmates’ motions for leave to
amend. Any attempt to amend the pleadings would be futile
because we see no way to hold that the officials violated a
clearly established Eighth Amendment right.

III.          RACIAL DISCRIMINATION

    For unknown reasons, Valley Fever disproportionally
affects African-Americans. State officials did not exclude
African-American inmates from the outbreak prisons until a
federal court ordered them to do so in 2013. Some of the
inmates in Jackson allege that this failure violated the Equal
Protection Clause of the Fourteenth Amendment.52
According to the complaint, the officials “intentionally
failed” to exclude African-American inmates from Pleasant
Valley and Avenal State Prisons (or otherwise reduce the risk
of harm) because the officials wanted to harm African-
American inmates. Thus, the inmates allege, it was
discriminatory to adopt a race-neutral exclusion policy that
excluded inmates from those prisons based solely on medical


       51
            Id. at 36 (emphasis in original).
    52
       See U.S. CONST. amend XIV, § 1 (“No state shall . . . deny to any
person within its jurisdiction the equal protection of the laws.”).
32                         HINES V. YOUSEFF

conditions. That is, they allege it was discriminatory not to
discriminate. On a motion for judgment on the pleadings, the
district court held that the officials lacked qualified immunity.
The officials appealed, and we reverse. We address an
unusual Equal Protection claim that it was a denial of equal
protection not to segregate prisoners by race.

    The district court analyzed this case as being about “the
right to non-discriminatory administration of prison services.”
The district court and the inmates both rely on Elliot-Park v.
Manglona,53 but that case is inapposite. In Elliot-Park, a
Micronesian drunk driver crashed into a Korean driver.54 The
investigating police officers were all Micronesian. The
Micronesian driver told an officer that “he had ‘blacked out’
while driving,” but the officers did not test him for
intoxication or arrest him for drunk driving.55 The Korean
driver sued the officers, arguing that their failure to
investigate or arrest the drunk driver was motivated by racial
animus against Koreans. We held that the officers lacked
qualified immunity because “[t]he right to non-discriminatory
administration of protective services is clearly established.”56
Because the officers considered race when deciding whom to
help, strict scrutiny applied.

    But Elliot-Park did not establish that state actors could
violate the Equal Protection Clause by adopting a race-neutral


     53
          592 F.3d 1003 (9th Cir. 2010).
     54
          Id. at 1005.
     55
          Id. at 1006.
     56
          Id. at 1008.
                          HINES V. YOUSEFF                            33

policy. Implicit in our holding in that case was the fact that
police officers typically arrest drunk drivers. The officers
diverged from the norm, allegedly because of racial animus.
That is, they allegedly treated Korean drivers differently than
they treated Micronesian drivers.

    Here, by contrast, the officials did not have one policy for
African-American inmates and another for white inmates.
All inmates were treated the same, regardless of race. The
officials are said to have violated the Constitution precisely
because they treated the inmates the same regardless of
race—not, as in Elliot-Park, because they treated people
differently because of their race. So for the officials here to
lose qualified immunity, it would have to have been clearly
established that treating people of all races the same violated
the Equal Protection Clause. For three reasons, it would not
have been clear to a reasonable person, acting on the
officials’ information and motivated by their purposes,57 that
the Equal Protection Clause required excluding African-
American inmates from these prisons based on race.

    First, from 2006 onward, a federal Receiver supervised
the prisons. During that time, multiple experts gave
recommendations. An exclusion policy went into effect in
2007. The Receiver modified that policy in 2010.58 It was
not until April 2012 that experts proposed excluding African-




    57
       See Norse v. City of Santa Cruz, 629 F.3d 966, 974 (9th Cir. 2010)
(en banc) (articulating a similar rule in a First Amendment retaliation
case).
    58
         Plata ECF No. 2617, at 2–3; id. ECF No. 2617-2, at 2.
34                         HINES V. YOUSEFF

Americans from the Central Valley.59 The Receiver did not
formally recommend a policy that would exclude African-
Americans until November 2012.60 The inmates note that the
prisons objected to excluding African-Americans from the
affected prisons. But the inmates do not argue that the
prisons failed to obey the district court’s order once that order
was made. And again, since 2006, the prisons were under the
Receiver’s supervision. The officials adopted exclusion
policies in accord with the Receiver’s directions and under
the Receiver’s watchful eye. Therefore, an official could
have reasonably believed that the policies about excluding (or
not excluding) African-Americans from Central Valley
prisons did not violate the Equal Protection Clause.

    There is a second reason why the officials have qualified
immunity: the Constitution generally demands race neutrality.
Over and over again, the Supreme Court has unambiguously
held that “all racial classifications” are invalid unless they
pass strict scrutiny.61 That is, an express racial classification
(like the ones the inmates want) is presumptively


     59
          Plata ECF No. 2580-3, at 13.
     60
        Plata ECF No. 2601, at 3. The Receiver did not want to rely
“solely on racial classifications,” id. at 7, so it crafted a risk-based cutoff
that had the effect of excluding African-Americans, inmates of “other
races” (e.g., Filipinos), and those over 55—but not Latino/Hispanic or
white inmates, id. at 8. It is clear that the Receiver considered race, not
just risk. Id. at 12. And being African-American is now, under the
Receiver’s cutoff, reason enough to keep an inmate out of the Central
Valley prisons.
     61
        Johnson v. California, 543 U.S. 499, 505 (2005); Gratz v.
Bollinger, 539 U.S. 244, 270 (2003); Adarand Constructors, Inc. v. Peña,
515 U.S. 200, 227 (1995); Shaw v. Reno, 509 U.S. 630, 650 (1993); see
also, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 312 (2013).
                          HINES V. YOUSEFF                              35

unconstitutional. It can survive only if the state proves that
the classification is “narrowly tailored” to achieving a
“compelling” state interest.62 Even so-called “benign” racial
classifications must satisfy strict scrutiny.63 In Johnson v.
California, prison inmates challenged a policy of temporarily
segregating inmates based on race.64 Even though the prison
adopted the policy to avoid racial gang violence, the Supreme
Court plainly held that strict scrutiny applied.65

     Mitchell v. Washington demonstrates how strict scrutiny
applies to race-based medical decisions.66 There, an African-
American inmate with Hepatitis C asked a prison doctor to
treat him with certain drugs. The doctor did not prescribe the
drugs because they “had been largely unsuccessful on
African-American males” with Hepatitis C.67 The inmate
sued the doctor on the theory that basing treatment decisions
on race violated the Equal Protection Clause. We held that
strict scrutiny applied because “even medical and scientific
decisions are not immune from invidious and illegitimate



    62
         Johnson, 543 U.S. at 505 (quoting Adarand, 515 U.S. at 227).
    63
     Id. (citing Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand,
515 U.S. at 226; and Shaw, 509 U.S. at 650).
    64
         Id. at 502–03.
    65
      Id. at 507–09. The Supreme Court remanded the case so that a
lower court could determine whether the policy survived scrutiny, id. at
515, but the parties settled before a lower court decided that issue.
    66
         818 F.3d 436 (9th Cir. 2016).
    67
         Id. at 441.
36                         HINES V. YOUSEFF

race-based motivations and purposes.”68 Even though the
doctor might have had good intentions and good data—the
inmate later got the demanded treatment, and it was
unsuccessful—“there is simply no way of determining what
classifications are benign or remedial and what classifications
are in fact motivated by illegitimate notions of racial
inferiority or simple racial politics.”69 The doctor did not
give any compelling reason for why he considered the
inmate’s race, so he violated the Equal Protection Clause.70

    Third, a reasonable official could have believed that not
excluding African-Americans from the prisons was consistent
with the scientific data and pre-2012 expert
recommendations. The California Department of Health
Services began investigating Valley Fever at Pleasant Valley
State Prison in 2005. It summarized its findings in a January
2007 report that assessed the relative risk of contracting
Valley Fever for various populations. Overall, inmates with
a chronic medical condition had a 2.7 “relative risk,” meaning
that they were 2.7 times more likely to contract Valley Fever
than inmates without a chronic condition. Inmates with
pulmonary conditions had a 3.8 relative risk. Diabetics had
a 2.7 relative risk. Those with chronic heart conditions had


     68
          Id. at 444.
     69
          Id. at 445 (quoting Shaw, 509 U.S. at 642–43).
     70
       Id. at 446; cf. Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015)
(holding that because a prison had “an objectively strong legal basis for
believing” that “exempting prisoners from race-neutral [housing policies]
on the basis of their religious beliefs” would violate the Equal Protection
Clause, the Religious Land Use and Institutionalized Persons Act did not
protect a white supremacist inmate that had a religious objection to being
housed with non-white inmates).
                      HINES V. YOUSEFF                       37

a 1.6 relative risk. Inmates over age 40 had a 1.6 relative
risk. And African-American inmates had a 1.9 relative risk
compared to white inmates.

    According to the report, 47% of African-American
inmates’ risk was due to race alone. But the report also
estimated that removing African-American inmates from the
prison would only reduce the number of Valley Fever cases
by, at most, 16%. And even though being African-American
was a risk factor for getting Valley Fever, the report said that
being African-American “was not associated with more
severe disease.” The two biggest risks were having a chronic
medical condition and being housed in a facility with more
outdoor exposure. So the report concluded that targeting
chronic conditions and outdoor exposure could do more to
decrease Valley Fever than targeting race or age. Based on
these relative risks, the state health department recommended
the following:

       Consider relocating the highest risk groups to
       areas that are not hyper-endemic for [the
       fungal spores].       Previous studies have
       suggested that the risk for extrapulmonary
       complications is increased for persons of
       African or Filipino descent, but the risk is
       even higher for heavily immunosuppressed
       patients. In this investigation, we found an
       increased risk among persons with chronic
       medical conditions, especially pulmonary
       conditions. Prevention efforts are critical for
       these higher risk populations and may
       mitigate the risk, but physical removal of
       these highest risk groups from highly endemic
38                       HINES V. YOUSEFF

         regions, if possible, would be the most
         effective method to decrease risk.

     A reasonable official could have read this report and its
recommendations and concluded that African-Americans did
not need to be excluded from the Central Valley based on
race. Even though African-American inmates had a higher
risk of getting Valley Fever than did white inmates, those
with chronic diseases typically had even higher risks. And
because nearly one-third of inmates were African-American,
a reasonable official could have decided that it was better to
try less burdensome measures first.

    In short, it was reasonable to exclude inmates based on
medical conditions rather than based on race. Even if state
officials should have been more aggressive in excluding
inmates whose higher risk appeared to be on account of (or at
least connected to) their race, that does not mean their
conduct violated clearly established law. The inmates did not
have a clearly established right to be segregated from certain
Central Valley prisons based on their race. We therefore
reverse the Jackson court’s ruling on the equal protection
claim.71

                          CONCLUSION

     We are sympathetic to the inmates’ plight. Valley Fever
is a serious and potentially fatal disease. When state officials
know that inmates face a substantial risk of serious harm, the
officials are constitutionally required to take reasonable steps



    71
       Regarding the claim that the officials violated the Equal Protection
Clause by failing to make the prisons safe, the same analysis applies.
                          HINES V. YOUSEFF                        39

to abate that risk.72 State officials cannot shut their eyes to
inmate suffering; they are responsible for the safety of the
people in their custody.73 But it would not have been
“obvious” to any reasonable official that they had to
segregate prisoners by race or do more than the federal
Receiver told them to do. So we conclude that the defendants
are entitled to qualified immunity. The rights that the inmates
claim were not clearly established when the officials acted.
Granting leave to amend would be futile. We therefore
AFFIRM the judgments in Hines, Gregge, and Smith, and we
REVERSE the judgment on appeal in Jackson.




    72
         Farmer v. Brennan, 511 U.S. 825, 847 (1994).
    73
       DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
199 (1989); Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).
