Balwinder Singh Tung v. GAVIN NEWSOM; et al.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER SINGH TUNG,
Plaintiff-Appellant,
v.
GAVIN NEWSOM; et al., *
Defendants-Appellees.
No. 16-17303
D.C. No. 1:13-cv-00269-DAD-EPG
MEMORANDUM**
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted June 11, 2019***
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
California state prisoner Balwinder Singh Tung appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
conditions of confinement and deliberate indifference claims under the Eighth
* Gavin Newsom has been substituted for his predecessor, Edmund G.
Brown, Jr., as Governor of California under Fed. R. App. P. 43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28
U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.
The district court properly dismissed Tung’s individual capacity claims
related to the alleged heightened exposure to Valley Fever, because it would not
have been clear to every reasonable official that housing Tung in prisons in the
Central Valley, where Valley Fever is endemic, was unlawful under the
circumstances. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (explaining two-
part test for qualified immunity); Hines v. Youseff, 914 F.3d 1218, 1229-30 (9th
Cir. 2019) (existing Valley Fever cases did not clearly establish a “right to be free
from heightened exposure to Valley Fever spores”).
The district court properly dismissed Tung’s individual capacity claims
related to alleged overcrowding and exposure to secondhand tobacco smoke,
because Tung failed to allege facts sufficient to state a plausible claim. See Helling
v. McKinney, 509 U.S. 25, 34-36 (1993) (describing required showing for a
deliberate indifference claim related to exposure to secondhand smoke); Balla v.
Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989) (“Only when
overcrowding is combined with other factors such as violence or inadequate
staffing does overcrowding rise to an [E]ighth [A]mendment violation.”) see also

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Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings
are to be construed liberally, a plaintiff must present factual allegations sufficient
to state a plausible claim for relief).
The district court properly dismissed Tung’s official capacity claims against
defendants as barred by Eleventh Amendment immunity. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989) (Eleventh Amendment immunity applies to state
agencies, including the department of prisons); see also Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978) (official capacity suits are “another way of
pleading an action against an entity of which an officer is an agent”).
AFFIRMED.

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