2009 U.S. Dist. LEXIS 94672, *

GREGORY LYNN NORWOOD, CDCR # J-53407, Plaintiff, vs. JEANNE WOODFORD, et al., Defendants.

Civil No. 07cv0057 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2009 U.S. Dist. LEXIS 94672

October 7, 2009, Decided
October 7, 2009, Filed

ORDER GRANTING DEFENDANTS BOURLAND, GIURBINO, JANDA AND DOVEY'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c)

I.

STATEMENT OF THE CASE

Gregory Norwood ("Plaintiff"), a state prisoner currently incarcerated at the California State Prison located in Corcoran, California, is proceeding pro se and in forma pauperis with a First Amended Complaint ("FAC") filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

Currently pending before the Court is Defendant Bourland, Dovey, Giurbino and Janda's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 106].

II.

PROCEDURAL BACKGROUND

Defendants Bourland, Dovey, Giurbino and Janda 1 move for summary judgment on the grounds that: (1) no genuine issues of material facts exist to show that they violated Plaintiff's Eighth Amendment rights; and (2) they are entitled to qualified immunity. On July 14, 2009, the Court advised Plaintiff of his rights and [*2] obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). 2 Plaintiff filed his Opposition on July 24, 2009 [Doc. No. 113]. The Court also granted Defendants' request to file a supplement to their Motion in light of the Ninth Circuit's recently published opinion in Norwood v. Vance, 572 F.3d 626 (9th Cir. 2009). See July 14, 2009 Order at 1. Because Defendants were permitted to supplement their Motion, the Court permitted Plaintiff to file a Supplemental Opposition [Doc. No. 117]. Defendants filed their Reply on August 13, 2009 [Doc. No. 113].

FOOTNOTES

1 Defendant Torres does not join in this motion as the Court's docket reflects that he has yet to be properly served.

2 Klingele and Rand together require the district court "'as a bare minimum, [to provide a pro se prisoner] with fair notice of the requirements of the summary judgment rule.'" Klingele, 849 F.2d at 411 (quoting Hudson v. Hardy, 412 F.2d 1091, 1094, 134 U.S. App. D.C. 44 (D.C. Cir. 1968)). "It would not be realistic to impute to a prison inmate ? an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale [*3] trial by conducting a trial in miniature, on affidavits, so that not submitting counter affidavits is the equivalent of not presenting any evidence at trial." Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (internal quotation omitted). Actual knowledge or any level of legal sophistication does not obviate the need for judicial explanation. Klingele, 849 F.2d at 411-12. Thus, the district court is required to "tell the prisoner about his 'right to file counter-affidavits or other responsive materials and [to][alert[] [him] to the fact that his failure to so respond might result in the entry of summary judgment against him.'" Jacobsen, 790 F.2d at 1365 n.8 (quoting Klingele, 849 F.2d at 411).


In addition, Plaintiff's First Amended Complaint is verified under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under FED.R.CIV.P. 56.).

Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS Defendants [*4] Bourland, Giurbino, Janda and Dovey's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56(c) for the reasons set forth in detail below.

III.

PLAINTIFF'S FACTUAL ALLEGATIONS

On August 18, 2005, Calipatria State Prison ("CAL") was placed on lockdown following an alleged assault involving Hispanic inmates and staff. (See FAC at 22.) On November 7, 2005, Plaintiff was transferred from California State Prison, Sacramento to CAL. (Id.) Upon Plaintiff's arrival, CAL remained on lockdown stemming from the August 18, 2005 incident. (Id.) Plaintiff alleges that as a result of the lockdown, he was confined to his cell for twenty-four hours a day, seven days a week, with the exception of brief shower periods. (Id. at 3.) Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Woodford, Janda, Bourland and Giurbino deprived him of outdoor exercise from November 7, 2005 to December 16, 2005, a period of 39 days. (Id.) The deprivation of outdoor exercise allegedly caused Plaintiff to suffer headaches, muscle cramps, stress, anxiety and depression. (Id.) 3

FOOTNOTES

3 Plaintiff also alleges a separate First Amendment cause of action against [*5] Defendant Torres. Defendants do not move for summary judgment on this ground as Defendant Torres has never been served in this action and the Deputy Attorney General for the remaining Defendants has informed the Court that they are not representing Defendant Torres. The Court has issued an Order to Show Cause why Defendant Torres and the claims made against him should not be dismissed for failing to prosecute. [Doc. No. 120]


On November 21, 2005, Plaintiff filed a CDC Form 602 grievance on behalf of a group of inmates to request access to outdoor exercise. (Id. at 21-23.) The grievance was denied by Defendant Janda, CAL Associate Warden during this time period. (Id. at 6.) Plaintiff filed a Second Level Appeal which was also denied by Defendant Bourland, CAL Chief Deputy Warden. (Id. at 24-25.) Plaintiff then appealed to the Director's Level which was also denied. (Id. at 26.) The denials indicate that no recreational activities were permitted for general population inmates due to the State of Emergency instituted on August 18, 2005. (Id. at 24, 26). The denials also indicate that the modified program and lockdown were initiated for reasons of security and safety, the continued suspension [*6] of yard privileges was necessary, and the decision regarding the reinstatement of yard privileges was being reviewed on a daily basis. (Id. at 24-26.)

IV.

DEFENDANTS' FACTUAL ALLEGATIONS

On August 18, 2005, several Hispanic inmates at CAL were involved in "multiple assaults or attempted murders of correctional staff which resulted in a lockdown." (Giurbino Decl. P 2.) During the riot, several correctional officers were injured and staff used deadly force which resulted in an inmate death. (Builteman Decl. P 4(a), Ex. A, Crime/Incident Report dated September 8, 2005.) Plaintiff was transferred to CAL on November 8, 2005 and thus, had no involvement in the prison riot that occurred on August 18, 2005. (Id. at P 6.)

On August 19, 2005, Warden Giurbino requested that a State of Emergency be declared which was granted. (See Giurbino Decl. at P 7.) As a result of the State of Emergency, a "lockdown" went into effect at CAL which included no outdoor exercise for inmates on Facilities A, B, and C. (Id.) Giurbino was responsible for "making decisions regarding programming at the prison." (Id. at P 5.) His subordinates, Bourland and Janda, "did not have authority to deviate from the program status [*7] report and/or allow outdoor exercise for general population inmates, such as [Plaintiff], without [Giurbino's] authorization." (Id.)

In determining that a lockdown was needed, Giurbino considered "not only the August 18, 2005 attempted murders of staff, but also the degree of organization that went into the widespread assaults, the violence at Calipatria State Prison which had been ongoing and escalating over the past two years seemingly unabated by previous efforts." (Id. at P 9.) In addition, Giurbino made such decisions to "bring about both immediate and long-lasting safety to prison inmates and staff." (Id.)

On September 16, 2005, Giurbino received permission to "conclude the declared State-of-Emergency" and Facilities A, B, C and D "would transition to modified program." (Id. at P 13.) The modified program was reviewed on a weekly basis by Giurbino following evaluation of "intelligence gathered as a result of searches and inmate interviews, and other investigative activities." (Id. at P 14.) As inmates were interviewed following the August 18th riot, all inmates in Facility A, B, C and D were not permitted to have outdoor exercise as Giurbino "believed it would have been unsafe [*8] for staff to be exposed to unrestrained general population inmates until those inmates who were planning future assaults could be identified and removed from the general population." (Id. at P 19.)

On November 8, 2005, Giurbino began lifting some restrictions for inmates that had passed a "risk assessment," including "easing restrictions on canteen, vendor packages and allowing visitation with limits." (Id. at P 24.) In addition, inmates began to be allowed to attend medical appointments, were given access to the law library and "religious volunteers were allowed to walk the tiers." (Id.) On October 26, 2005, Giurbino was informed by intelligence from staff that "staff might be assaulted or killed once the institution resumed normal programming" and on November 1, 2005, a weapon was found in an inmate's cell. (Id. at P 27.) On November 17, 2005, an Investigative Lieutenant informed Giurbino that "he had received information that safety and security might be affected by the African-American population." (Id.) Another battery on a peace officer occurred on December 8, 2005 and one day later another inmate manufactured weapon had been discovered. (Id. at P 28.)

Permitting outdoor exercise [*9] to general population inmates during the lockdown period was not an option because of the large increase of inmates in Facilities A, B and C, an insufficient number of restraints, inadequate yard security and lack of "manpower needed for cell-feeding inmates, providing canteen items to cells, and escorting inmates in restraints to showers, medical appointments, dental appointments, mental health appointments, law library, visitation, and any other movement outside the." (Id. at P 31.) In addition, there were "ongoing projects to improve the yards" for "at least a couple of months after the incident." (Id.) Finally, Giurbino declares "[a]llowing inmate Norwood, or a select group of general population inmates outdoor exercise was not an option because approximately 50 new inmates were admitted every week to the institution beginning August 19, 2005 making this process logistically impossible." (Id. at P33.) To permit "special treatment" for a select group of inmates would have the potential to place pressure on those inmates to engage in violence. (Id.)

V.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is properly granted when "there is no genuine issue as [*10] to any material fact and ? the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).

The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). However, to avoid summary judgment, the nonmovant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Rather, he must present "specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court may not weigh evidence or make credibility determinations on a motion for summary judgment. Quite the opposite, the inferences to be drawn from the underlying [*11] facts must be viewed in the light most favorable to the nonmoving party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). The nonmovant's evidence need only be such that a "fair minded jury could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 255. However, in determining whether the nonmovant has met his burden, the Court must consider the evidentiary burden imposed upon him by the applicable substantive law. Id.

A verified complaint or motion may be used as an opposing affidavit under FED.R.CIV.P. 56 to the extent it is based on personal knowledge and sets forth specific facts admissible in evidence. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam) (complaint); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (motion). To "verify" a complaint, the plaintiff must swear or affirm that the facts in the complaint are true "under the pains and penalties of perjury." Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995).

B. Defendant's Arguments

Defendants argue they are entitled to judgment as a matter of law pursuant to FED.R.CIV.P. 56 because: 1) no genuine issues of material fact exist to show that [*12] Defendants violated Plaintiff's Eighth Amendment rights; and (2) Defendants are entitled to qualified immunity.

1. 42 U.S.C. § 1983

Section 1983 authorizes a "suit in equity, or other proper proceeding for redress" against any person who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States ? to the deprivation of any rights, privileges, or immunities secured by the Constitution." Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122, 158 L. Ed. 2d 924 (2004). Here, there is no dispute that Defendants acted under color of state law when they ordered implementation of lockdown procedures at CAL which limited Plaintiff's access to outdoor exercise from November 8, 2005 to December 17, 2005. Thus, the resolution of the Summary Judgment Motion turns on the second inquiry: whether a genuine issue of material fact exists to show that Defendants' actions constituted cruel and unusual punishment in violation of Plaintiff's Eighth Amendment rights.

2. Eighth Amendment's Cruel and Unusual Punishments Clause

"Whatever rights one may lose at the prison gates, ? the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is [*13] to protect persons convicted of crimes." Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979) (citation omitted). The Eighth Amendment, however, is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Rhodes v. Chapman, 452 U.S. 337, 347, 349, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Rather, the Eighth Amendment proscribes the "unnecessary and wanton infliction of pain," which includes those sanctions that are "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); see also Farmer, 511 U.S. at 834; Rhodes, 452 U.S. at 347. This includes not only physical torture, but any punishment incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); see also Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

Although prison administrators generally have broad discretion in determining whether to declare emergencies and impose "lockdowns" to control institutional disturbances, the conditions imposed during [*14] the lockdown may constitute cruel and unusual punishment under the Eighth Amendment. See Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (denial of outdoor exercise may give rise to Eighth Amendment violation even in response to emergency conditions). To assert an Eighth Amendment claim for deprivation of humane conditions of confinement, a prisoner must satisfy two requirements: one objective and one subjective. Farmer, 511 U.S. at 834; Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994).

"Under the objective requirement, the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834. This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit, 682 F.2d at 1246; Farmer, 511 U.S. at 833; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981).

The subjective requirement, relating to the defendants' state of mind, requires "deliberate indifference." Allen, 48 F.3d at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk [*15] to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 835.

a. Objective Requirement

Plaintiff alleges that the complete deprivation of outdoor exercise from November 8, 2005 to December 16, 2005 resulting from Giurbino's decision to implement lockdown and modified lockdown restrictions constituted cruel and unusual punishment (See FAC at 3.) The Ninth Circuit has stated that "regular outdoor exercise is extremely important to the psychological and physical well being of the inmates." Spain, 600 F.2d at 199 (holding that prisoners in long-term and continuous segregation must be provided regular outdoor exercise unless "inclement weather, unusual circumstances, or disciplinary needs" make it impossible). However, as the Ninth Circuit further recognized in Hayward, when a lockdown is instituted in response to a genuine emergency, the decisions regarding when and how to provide for outdoor exercise "are delicate ones, and those charged with them must be given reasonable leeway." Hayward, 629 F.2d at 603.

Here, the record is clear [*16] that the restrictions placed on Plaintiff's access to outdoor exercise was in response to a riot that involved inmates assaulting correctional officers resulting in serious injuries to these correctional officers. (Giurbino Decl. P 7, 9.) Giurbino implemented a "state of emergency" the day following the riot. (Id.) During the time frame in which Plaintiff was denied outdoor exercise, prison officials were meeting on a nearly daily basis to assess investigative intelligence and interviewing inmates to determine who was responsible for the riot. (Id. at PP 14-15.) Giurbino implemented the modified programming that allowed for some privileges to be returned to general population inmates such as allowing medical and dental visits and easing restrictions on canteen, vendor packages and visitation. (Id. 24.) During this time frame while restrictions were being eased, prison officials discovered inmate manufactured weapons, an escape plot, planned staff assaults by African American inmates and difficulties in securing the exercise yard. (Id. at PP 27-28.) Plaintiff was taken out of general population and moved to Administrative Segregation which permitted outdoor exercise on December 17, [*17] 2005. (See Johnson Decl. P 6(a), Exhibit A, CDC Form 114-D "Administrative Segregation Unit Placement Notice" dated December 10, 2005.)

"Although exercise is 'one of the basic human necessities protected by the Eighth Amendment' ? a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation." May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (twenty-two days insufficient to establish Eighth Amendment violation) (quoting LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993)). Here, Plaintiff alleges that he was denied outdoor exercise of a period of five weeks which could arguably support the objective component of an Eighth Amendment claim. See e.g., Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc) (finding six and one-half weeks deprivation of "all access to outdoor exercise" sufficient to satisfy Eighth Amendment's objective requirements).

b. Subjective Requirement

However, in order to avoid summary judgment, Plaintiff must show there are triable issues as to the Eighth Amendment's subjective requirement. Farmer, 511 U.S. at 834. In this regard, the Court finds no evidence in the record to support Plaintiff's claim that the denial of outdoor [*18] exercise, which began as a result of a serious riot, was the result of Defendant's "deliberate indifference." Farmer, 511 U.S. at 835; Lopez, 203 F.3d at 1133.

Plaintiff claims that the subjective requirement is "satisfied by plaintiff putting the officials on notice in a 602 grievance (group appeal) during deprivation" and also by a "medical complaint," as well as "existing caselaw that dictates outdoor exercise is a right." (See Pl.'s Opp'n at 4.) However, as the Ninth Circuit recently informed Plaintiff in a published opinion, previous case law regarding alleged deprivation of outdoor exercise does not hold that "a prisoner's right to outdoor exercise is absolute or indefeasible, or that it trumps all other considerations." Norwood v. Vance, 572 F.3d 626, 632 (9th Cir. 2009). Instead, "prison officials have a duty to keep inmates safe, and in particular to protect them from each other" while balancing "this imperative against other obligations that our laws impose, such as providing outdoor exercise." Id.

The evidence before the Court shows that the suspension of outdoor exercise began after a riot erupted on August 18, 2005 involving the attempted murder of prison staff. (Giurbino [*19] Decl. P 2.) One inmate was killed. (Builteman Decl. P 4(a).) Plaintiff was not affected by the lockdown until he was transferred to CAL on November 8, 2005. (See FAC at 3.) Defendants have offered the Declaration of Giurbino who clearly sets forth a number of safety and security concerns requiring the need for a lockdown as stated more fully above. In addition, in support of their motion, Defendants offer the expert opinion of Robert G. Borg. 4 In Borg's opinion "the high level of violence at Calipatria State Prison prior to, and on, August 18, 2005, called for a drastic reestablishment of order, otherwise, the level of violence would likely have continued to become more common and more severe." (Borg Decl., P 5.) He further states that "[r]estoration of yard and meals in the dining room are the last activities that are typically returned to normal programming in connection with a lockdown or modified program." (Id. at P 8.) Finally, Borg opines "[t]he decisions made regarding modified program at issue in this lawsuit were required for the safety and security of the inmates and staff and the denial of outdoor exercise was reasonable and served penological interests." (Id. P 9.)

FOOTNOTES

4 Plaintiff [*20] appears to make an evidentiary objection to Borg's declaration stating, in part, that "this expert who is paid by the defendants and is a former prison employee is biased." (Pl.'s Opp'n dated July 24, 2003 at 35.) Moreover, Plaintiff objects to the relevancy of Borg's declaration as he disputes "the accuracy of the documents the expert reviewed." (Id.) However, when a party challenges the validity of an expert's testimony, "its recourse is not exclusion of the testimony, but, rather, refutation of it by cross-examination and by the testimony of its own expert witness." Humetrix, Inc., v. Gemplus S.C.A., 268 F.3d 910, 919 (9th Cir. 2001). Plaintiff's conclusory objections are insufficient. Thus, Plaintiff's objection to the declaration of Robert Borg is OVERRULED.


Plaintiff disputes these assertions and argues that Defendants "exaggerated their response to the August 18, 2005 staff assaults." (Pl.'s Suppl. Opp'n at 3.) Plaintiff also argues that the documentation upon which Defendants relied in issuing the lockdown order is false and misleading. (See Pl.'s Opp'n at 19.) For example, Plaintiff disputes that the attack by inmates on the correctional officers was "attempted murder" as stated [*21] in the officer's reports. Plaintiff argues that "attempted murders are planned" and are somehow distinguishable from "staff assaults" which are "spontaneous." (Id.) Plaintiff disputes the nature of the riot that occurred on August 18, 2005 but provides only conclusory statements and no evidence to contradict Defendant's safety concerns. Moreover, Plaintiff fails to provide any evidence to demonstrate that "lockdowns were meant to be punitive or were otherwise implemented in bad faith." Norwood, 572 F.3d at 631.

Thus, the record is replete with facts which reveal that restrictions on outdoor exercise were instituted for the primary purpose of preventing further attacks, injuries and homicides. There is simply no evidence before this Court which supports Plaintiff's claims that Defendants' actions were the product of any "deliberate indifference" on their part. Farmer, 511 U.S. at 837. Thus, without more, this Court finds no genuine issues of material fact exist to show that Defendants deprived Plaintiff of outdoor exercise with the "deliberate indifference" to his health or safety necessary to support an Eighth Amendment violation. See Farmer, 511 U.S. at 835. Rather, the uncontroverted [*22] evidence establishes that the suspension of outdoor exercise was a response to ongoing violence. Plaintiff has come forward with no evidence to support a finding that the suspension or delay in restoration of outdoor exercise amounted to a violation of his Eighth Amendment rights.

Accordingly, Defendants Bourland, Giurbino, Janda and Dovey are entitled to summary judgment as a matter of law. Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 256; Berg, 794 F.2d at 459.

3. Qualified Immunity

Because the Court has found no violation of Plaintiff's Eighth Amendment rights, the Court need not reach any issues regarding qualified immunity. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) ("[The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all."); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.").

VI.

CONCLUSION AND ORDER

For all the reasons set forth in the Order the Court [*23] hereby: GRANTS Defendants Dovey, Bourland, Giurbino and Janda's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 106].

Because there are no remaining claims against Defendants Dovey, Bourland, Giurbino and Janda, and there is no just reason for delay, the Clerk of Court is directed to enter a final judgment as to Defendants Dovey, Bourland, Giurbino and Janda pursuant to FED.R.CIV.P. 54(b).

IT IS SO ORDERED.

DATED: October 7, 2009

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge

583 F. Supp. 2d 1200, *; 2008 U.S. Dist. LEXIS 68508, **

GREGORY NORWOOD, CDC # J-53407, Plaintiff, vs. JEANNE WOODFORD, et al., Defendants.

CASE NO. 07cv57 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

583 F. Supp. 2d 1200; 2008 U.S. Dist. LEXIS 68508


September 5, 2008, Decided
September 5, 2008, Filed

[*1201] ORDER

HAYES Click for Enhanced Coverage Linking Searches, Judge:

The matters before the Court are the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford and Gerald Janda (Doc. # 33); the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda and M Bourland (Doc. # 44); the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda, M Bourland, and J Giurbino (Doc. # 58); and the Report [**2] and Recommendation filed by Magistrate Judge Jan M. Adler (Doc. # 69).

[*1202] Background

On January 8, 2007, Plaintiff Gregory Norwood, a state prisoner, initiated this action by filing a complaint (Doc. # 1). On April 16, 2007, Plaintiff filed the First Amended Complaint ("FAC") (Doc. # 12), which is the operative pleading in this case. The FAC alleges that Defendants Woodford, Janda, Bourland and Giurbino deprived Plaintiff of outdoor exercise from November 7, 2005 to December 16, 2006, a period of 39 days, in violation of his rights as protected by the Eighth Amendment of the United States Constitution. The FAC alleges that "Defendants motives were to use the deprivation period as a means to punish Plaintiff." FAC, p. 5. The FAC alleges that Woodford was the Director of California State Prisons at the time of the deprivation and that she "knew that plaintiff's period of deprivation existed. And this defendant approved of it." Id. The FAC alleges that Giurbino was Warden of Calipatria State Prison and "is responsible for plaintiffs custody treatment and discipline and had to approve the lockdown." Id. The FAC alleges that Bourland was Chief Deputy Warden of Calipatria State Prison and that [**3] Janda was Associate Warden. The FAC alleges that Bourland and Janda knew of Plaintiff's deprivation because they were served with an institutional grievance filed by Plaintiff, yet did not provide Plaintiff with any outdoor exercise opportunities. Id. at 6. The FAC also alleges that Defendants retaliated against him for asserting his protected right to be free from harm, in violation of his rights as protected by the First Amendment.

On November 13, 2007, January 7, 2008 and March 27, 2008, Defendants filed Motions to Dismiss (Docs. # 33, 44, 58) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The grounds for dismissing the FAC are the same in each Motion to Dismiss. Specifically, Defendants move to dismiss the FAC on grounds that Plaintiff fails to state a claim for violation of the Eighth Amendment because Plaintiff "has not satisfied either the objective or subjective requirements of a claim for deprivation of outdoor exercise in that Plaintiff was not denied the minimal civilized measure of life's necessities, and there was no deliberate indifference" by any Defendant. (Docs. # 33, p. 3; 44, p. 4; 58, p. 4). Defendants also contend that they are entitled to qualified [**4] immunity. Plaintiff filed oppositions to the Motions to Dismiss (Docs. # 45, 61).

On June 30, 2008, Magistrate Judge Jan M. Adler filed a Report and Recommendation ("R&R") recommending that the Court (1) deny the Motions to Dismiss the FAC, and (2) dismiss all claims against Defendant Sergeant Rutledge. The R&R concludes that Plaintiff has satisfied the objective requirement to state an Eighth Amendment claim because Plaintiff has alleged that he was denied outdoor exercise for 39 days, and "Plaintiff's alleged deprivation is sufficiently close in duration to the deprivations . . . that Eighth Amendment protection may be invoked." R&R, p. 9. The R&R concludes that Plaintiff has satisfied the subjective requirement to state an Eighth Amendment claim on grounds that Plaintiff alleges that each Defendant acted with deliberate indifference because they knew that the lack of outdoor exercise presented a risk to Plaintiff's health and safety, yet either directed or approved of the deprivation. The R&R concludes that Plaintiff has sufficiently alleged the objective and subjective elements of an Eighth Amendment claim. The R&R further concludes that Defendants are not entitled to qualified [**5] immunity because Plaintiff has alleged an Eighth Amendment claim and "any reasonable official in Defendants' positions would have understood that the denial of outdoor exercise for an extended period of time was unconstitutional. The Eighth Amendment [*1203] may be violated even in a lockdown situation." R&R, p. 17.

On July 17, 2008, Defendants filed objections to the R&R (Doc. # 72). On July 30, 2008, Plaintiff filed a response to Defendants' objections (Doc. # 77).

Standard of Review

A. Rule 72 - Review of a Report and Recommendation

The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b). The district judge "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b).

B. Rule 12(b)(6) - Motion to Dismiss for Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). [**6] A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir. 1996). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule [**7] of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

Analysis

Defendants object to the R&R on three grounds. First, Defendants contend that the Magistrate Judge incorrectly concluded that the objective component of the Eighth Amendment claim had been met. Second, Defendants contend that the Magistrate Judge incorrectly concluded that the subjective component of the Eighth Amendment claim had been met. Third, Defendants contend that the Magistrate Judge incorrectly concluded that Defendants were not entitled to qualified immunity.

"[R]egular outdoor exercise is extremely important to the psychological and physical well being of" prison inmates. Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979). Exercise is one of the basic human necessities protected by the Eighth Amendment of the United States Constitution. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). To assert an Eighth Amendment claim for deprivation of human necessities, a prisoner must satisfy two requirements, one of which is objective and the other of which is subjective. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "Under the objective requirement, [**8] the prison officer's acts or [*1204] omissions must deprive an inmate of the minimal civilized measure of life's necessities." Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1995) (internal citations omitted). The subjective requirement, relating to the prison official's state of mind, requires "deliberate indifference." Id. at 1087.

A. Objective Component of the Eighth Amendment Claim

Defendants "object that in the R&R the Court declines to consider the difference in an emergency lockdown situation in deciding the objective component." Opposition, p. 2. Defendants state:

[T]his case's 39-day deprivation of outdoor exercise falls between the 28-day deprivation allowed [in the Ninth Circuit] and the 42-day deprivation not allowed [in the Ninth Circuit]. The scales, however, should tip in favor of allowing the deprivation because this deprivation occurred in the context of a lockdown of the entire general population following an alleged assault by inmates on staff, as opposed to simply not making provisions for Administrative Segregation inmates to get exercise under normal prison conditions.

Id.

In Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), the Ninth Circuit held that a five-month lockdown [**9] and 28-day deprivation of outdoor exercise in response to a genuine emergency did not satisfy the objective element of the Eighth Amendment analysis. In so holding, the Ninth Circuit stated: "The present case . . . confronts us with . . . unusual circumstances . . . ; this lockdown was in response to a genuine emergency. The measure was temporary and plaintiffs here were allowed approximately the minimum exercise mandated in [Spain, 600 F.2d 189] within a month after the imposition of the lockdown." Hayward, 629 F.2d at 603. In Allen, the Ninth Circuit held that permitting a prisoner 45 minutes per week of outdoor recreation during a six-week period satisfied the objective element of the Eighth Amendment analysis. 48 F.3d at 1088. The Ninth Circuit stated that "defendants cannot legitimately claim that their duty to provide regular outdoor exercise to Smith was not clearly established. [Plaintiff] has met the objective requirement of the Eighth Amendment analysis by alleging the deprivation of what this court has defined as a basic human need." Id. Similarly, in Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000), the Ninth Circuit held that the objective element of the Eighth Amendment [**10] analysis was satisfied by a prisoner who was denied all access to outdoor exercise during a six-and-one-half week period of time.

The FAC alleges that the lockdown was implemented to punish Plaintiff and was "utilize[d] as a deterrent to future staff assaults by subjecting inmates to such extreme suffering [] that they would dread another lockdown." FAC, p. 5, 7. According to the FAC, Plaintiff was denied any outdoor exercise for 39 days. This is a longer period of time than the 28-day period held to be constitutionally permissible in Hayward. The amount of time during which Plaintiff was deprived of outdoor exercise is much closer to the periods of time held to satisfy the objective element in Lopez and Allen. Construing the allegations in the FAC in the light most favorable to Plaintiff, the Court concludes that dismissal of this action on grounds that the alleged 39-day deprivation of outdoor action does not satisfy the objective component of an Eighth Amendment claim is improper at this stage of the proceedings.

B. Subjective Component of the Eighth Amendment Claim

Defendants contend that the totality of the circumstances indicate that the deprivation [*1205] of outdoor exercise was "not [**11] instituted simply to cause harm" because "Plaintiff's allegations and documents he attached to his First Amended Complaint" show that the lockdown was in response to incidents of attempted murder on prison staff by inmates other than Plaintiff, and that the decision regarding reinstatement of outdoor exercise was being reviewed on a daily basis. Objections, p. 3. Defendants contend that they

do not argue that the subjective element is only satisfied if an inmate is specifically targeted. Rather, the lack of targeting an inmate (or a small welldefined group of inmates) is part of the totality of circumstances to consider, and shows, when coupled with other factors, the lack of maliciousness - i.e. that the deprivation was not instituted simply to cause harm.

Objections, p. 3. Defendants contend that the documents attached to the Complaint, which demonstrate that the deprivation was in response to multiple attempted murders upon staff and that the prison was evaluating reinstatement of outdoor exercise on a daily basis, refute Plaintiff's "conclusory allegation that the deprivation of outdoor exercise served no security purpose but was simply instituted to cause extreme suffering." Id. at 4.

The [**12] subjective element of the Eighth Amendment requires "deliberate indifference." Allen, 48 F.3d at 1087. Deliberate indifference is found when a prison official knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837.

The FAC alleges "Defendants motives were to use the deprivation period as a means to punish Plaintiff." FAC, p. 5. With respect to Woodford and Giurbino, the FAC alleges that they were responsible for Plaintiff's deprivation because they knew that Plaintiff's period of deprivation existed and "had to approve the deprivation period." Id. at 2. With respect to Janda and Bourland, the FAC alleges that they were made aware of Plaintiff's deprivation through Plaintiff's institutional grievance, and that they could have therefore "prevented plaintiff's suffering by providing outdoor [] exercise opportunities." Id. at 6. Viewing the allegations in the light most favorable to Plaintiff, the Court concludes that the FAC alleges that Woodford and Giurbino acted with deliberate indifference because they knew of and approved of the deprivation period. The Court concludes that the FAC alleges that Janda and Bourland acted with deliberate indifference [**13] because they knew of the deprivation and could have prevented the deprivation by providing Plaintiff with outdoor exercise opportunities, but failed to do so. The Court concludes that dismissal on grounds that Plaintiff has failed to allege facts that satisfy the subjective requirement of the Eight Amendment analysis is improper at this stage of the proceedings.

C. Qualified Immunity

Defendants contend that "[g]iven the important reason the institution had for instituting the lockdown (i.e. the multiple attempted murder of staff by inmates), the unlawfulness of the 39-day deprivation under these facts would not have been clear to a reasonable officer." Opposition, p. 5. Defendants object to the R&R' s conclusion that it was clearly established in 2005 that the denial of outdoor exercise for an extended period of time was unconstitutional. Id.

The Supreme Court has articulated a two-part test for courts to apply in determining whether a government official is entitled to qualified immunity. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish [*1206] a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) [**14] (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). "[T]he next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201. "If the law did not put the officer on notice that his conduct would be clearly unlawful," a finding of qualified immunity is proper. Id. It is not required that "courts must have agreed upon the precise formulation of the standard." Id. at 202. An officer is not entitled to qualified immunity so long as courts have found that certain conduct constitutes a constitutional violation "under facts not distinguishable in a fair way from the facts presented in the case at hand." Id. at 202-203.

As discussed above, the Complaint adequately alleges an Eight Amendment claim against Defendants for denying Plaintiff any outdoor exercise for a period of 39 days. The Court further concludes that it was clearly established when Plaintiff's deprivation allegedly occurred that the denial of outdoor exercise for prison inmates for an extended period of time could constitute an Eighth Amendment violation, and that the Eight Amendment may be violated even in a lockdown situation. The Court concludes that Defendants are not entitled to qualified [**15] immunity with respect to Plaintiff's Eighth Amendment claims at this stage of the proceedings.

D. Defendant Rutledge

Neither party objected to the Magistrate Judge's conclusion that any claims against Rutledge be dismissed. The Court has reviewed this portion of the R&R and concludes that the Magistrate Judge's conclusion is correct.

Conclusion

IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 69) is ADOPTED. The Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford and Gerald Janda (Doc. # 33); the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda and M Bourland (Doc. # 44); and the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda, M Bourland, and J Giurbino (Doc. # 58) are DENIED. All claims against Sergeant Rutledge are DISMISSED.

DATED: September 5, 2008

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge
_______________________________________________________________________

583 F. Supp. 2d 1200, *; 2008 U.S. Dist. LEXIS 106969, **

GREGORY NORWOOD, CDC # J-53407, Plaintiff, v. JEANNE WOODFORD, et al., Defendants.

Case No. 07-CV-0057-WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

583 F. Supp. 2d 1200; 2008 U.S. Dist. LEXIS 106969

June 30, 2008, Decided

[*1206] REPORT AND RECOMMENDATION RE (1) DENYING DEFENDANTS' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND (2) DISMISSAL OF CLAIMS AGAINST DEFENDANT RUTLEDGE

[Doc. Nos. 33, 44, 58]

This matter comes before the Court on three Motions to Dismiss the First Amended Complaint ("FAC") brought by Defendants Jeanne Woodford ("Woodford") and J.A. Janda ("Janda") [Doc. No. 33], M.E. Bourland ("Bourland") [Doc. No. 44], and J.A. Giurbino ("Giurbino") [Doc. No. 58] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [**2] The Court has considered the papers filed in support of and in opposition to Defendants' motions, as well as all relevant pleadings and documents in the Court's file. 1 For the following reasons, the Court recommends that Defendants' Motions to Dismiss be DENIED.

FOOTNOTES

1 Plaintiff filed oppositions to the motions brought by Defendants Woodford, Janda, and Giurbino, but did not file an opposition to the motion brought by Defendant Bourland.


[*1207] I. FACTUAL BACKGROUND

On August 18, 2005, Calipatria State Prison ("Calipatria") was placed on lockdown following an alleged assault involving Hispanic inmates and staff. FAC at 22. 2 On November 7, 2005, Plaintiff was transferred from California State Prison, Sacramento, to Calipatria. Id. 3 Upon Plaintiff's arrival, Calipatria remained on lockdown stemming from the August 18, 2005 incident. Id. Plaintiff alleges that as a result of the lockdown, he was confined to his cell for twenty-four hours a day, seven days a week, with the exception of brief shower periods. FAC at 3. Plaintiff, proceeding pro se, alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Woodford, Janda, Bourland, and Giurbino [**3] deprived him of outdoor exercise from November 7, 2005 to December 16, 2005, a period of 39 days. Id. 4 The deprivation of outdoor exercise allegedly caused Plaintiff to suffer headaches, muscle cramps, stress, anxiety, and depression. Id. 5

FOOTNOTES

2 Unless otherwise noted, page number references used by the Court herein refer to the numbers printed by the Court's docketing system, located at the top of each page.

3 Plaintiff has since been relocated again and is currently incarcerated at California State Prison, Corcoran.

4 Defendants note that according to the FAC, Plaintiff was transferred to the Administrative Segregation Unit on December 10, 2005, resulting in a deprivation of outdoor exercise of only 33 days which can be attributed to the lockdown. Defs.' Mem. (Woodford & Janda) at 6 n.2; (Giurbino) at 7 n.1; (Bourland) at 6 n.2 (citing FAC at 8-11). However, because Plaintiff does not allege that the lockdown did not affect outdoor exercise in the Administrative Segregation Unit, this Court will conduct its analysis using the 39 day period alleged in the Complaint.

5 Plaintiff also alleges a separate claim for violation of his First Amendment rights against Defendant Torres. Defendant Torres [**4] has not yet been served. Thus, this Report and Recommendation does not address the claim against him.


On November 21, 2005, Plaintiff filed a CDC Form 602 grievance on behalf of a group of inmates to request the provision of outdoor exercise. Id. at 21-23. The grievance was apparently denied by Defendant Janda, the then Associate Warden. FAC at 6. 6 Plaintiff then filed a Second Level Appeal, the denial of which was issued and signed by Defendant Bourland, the Chief Deputy Warden at the time. Id. at 24-25. Plaintiff's Director's Level Appeal was also denied. Id. at 26. The denials indicate that no recreational activities were permitted for general population inmates due to the State of Emergency instituted on August 18, 2005. Id. at 24, 26. The denials also indicate that the modified program and lockdown were initiated for reasons of security and safety, the continued suspension of yard privileges was necessary, and the decision regarding the reinstatement of yard privileges was being reviewed on a daily basis. FAC at 24-26.

FOOTNOTES

6 Plaintiff has attached copies of his Appeal Form, Second Level Appeal Response, and Director's Level Appeal Decision to his FAC. See FAC at 21-26. Plaintiff has [**5] not attached a copy of the denial of his original Form 602 grievance.


II. DEFENDANTS' FED. R. CIV. P. 12(b)(6) MOTION

Defendants seek dismissal of Plaintiff's First Amended Complaint on the grounds that: (1) Plaintiff has failed to sufficiently allege an Eighth Amendment claim relating to the deprivation of outdoor exercise and (2) Defendants are entitled to qualified immunity. Defs.' Mem. (Woodford & Janda) at 8; (Giurbino) at 9; (Bourland) at 8.

A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [*1208] tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

The [**6] court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley, 355 U.S. at 45-46; see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000).

Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); see also Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). In giving liberal interpretation to a pro se civil rights complaint, however, a court "may not supply essential [**7] elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

B. Eighth Amendment - Deprivation of Outdoor Exercise

"Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes." Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979). The Eighth Amendment, however, is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) [**8] (citing Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)). Rather, the Eighth Amendment proscribes the "unnecessary and wanton infliction of pain," which includes those sanctions that are "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); see also Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). This includes not only physical torture, [*1209] but any punishment incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); see also Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

In Spain, the court stated that "regular outdoor exercise is extremely important to the psychological and physical well being of the inmates." Spain, 600 F.2d at 199. Although courts have recognized that prison administrators may need, on occasion, to briefly deprive an inmate of outdoor exercise due to logistical problems, a long-term deprivation, even due to practical difficulties, may constitute cruel and unusual punishment under the Eighth Amendment. Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1995). To assert an Eighth Amendment claim for deprivation [**9] of humane conditions of confinement, a prisoner must satisfy two requirements, one of which is objective and the other of which is subjective. Farmer, 511 U.S. at 834; Allen, 48 F.3d at 1087.

"Under the objective requirement, the prison official's acts or omissions must deprive an inmate of 'the minimal civilized measure of life's necessities.'" Allen, 48 F.3d at 1087 (citation omitted). A prisoner meets the objective requirement by alleging the deprivation of what courts have defined as a basic human need. Id. at 1088.

The subjective requirement, relating to the prison official's state of mind, requires "deliberate indifference." Id. at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Finally, the court must analyze each claimed violation in light of these requirements, for Eighth Amendment violations may not be based on the "totality of conditions" at a prison. Hoptowit, 682 F.2d at 1246-47.

1. [**10] Objective Requirement

Plaintiff contends that outdoor exercise constitutes "a basic human need" and Defendants, by denying him outdoor exercise for 39 days, deprived him of this need. FAC at 3. Defendants contend that Plaintiff has not sufficiently alleged the objective element of an Eighth Amendment claim because his alleged deprivation resulted from a lockdown of the entire general population triggered by multiple inmate attempted murders of prison staff. Defs.' Mem. (Woodford & Janda) at 10-13; (Bourland) at 11-13; (Giurbino) at 11-13.

In Hayward v. Procunier, the case upon which Defendants primarily rely, the court acknowledged that when a lockdown is instituted in response to a genuine emergency, decisions regarding when and how to provide for outdoor exercise "are delicate ones, and those charged with them must be given reasonable leeway." Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980). Plaintiff, on the other hand, cites to, inter alia, Lopez v. Smith and Allen v. Sakai. In Lopez, the Ninth Circuit found that a complete denial of exercise lasting 6-1/2 weeks (i.e., 46 days) was sufficient to invoke Eighth Amendment protection. Lopez, 203 F.3d at 1133. In Allen, the Ninth [**11] Circuit found that permitting inmates only 45 minutes of outdoor exercise per week over a 6 week period (i.e., 42 days) was also sufficient to meet the objective element of an Eighth Amendment claim. Allen, 48 F.3d at 1086-87.

In Defendants' view, cases which involve a lockdown situation should be distinguished from those which do not. Defendants accordingly ask the Court to disregard Allen and Lopez on the basis that the [*1210] periods of deprivation of outdoor exercise in those cases did not arise in response to an emergency lockdown situation. Defs.' Mem. (Woodford & Janda) at 12; (Bourland) at 12; (Giurbino) at 13. The Court declines to do so. Defendants have cited no authority supporting their argument that an emergency lockdown situation excuses the deprivation of what the courts have found to be a "basic human need" under the objective component of an Eighth Amendment claim. See Allen, 48 F.3d at 1088. Although the Ninth Circuit found the 28 day deprivation in Hayward did not cross the Eighth Amendment line because of an emergency lockdown situation, the court did not make a finding that the claim did not meet the objective component. Hayward, 629 F.2d at 603. Moreover, Hayward is distinguishable [**12] as the plaintiffs in that case were permitted outdoor exercise within a month after the imposition of the lockdown. Id. The same is not true here, if Plaintiff's allegations are accepted as true.

Plaintiff alleges a deprivation of outdoor exercise of 39 days. Though the 39 day deprivation is less than the 42 and 46 day deprivations found to invoke Eighth Amendment protection in Allen and Lopez, neither Allen, Lopez, nor any other case suggests that a 42 or 46 day deprivation constitutes the minimum amount of time required to invoke Eighth Amendment protection, and the Court declines to apply a bright line test requiring that minimum duration. The Court finds that Plaintiff's alleged deprivation is sufficiently close in duration to the deprivations in both Allen and Lopez that Eighth Amendment protection may be invoked. Accordingly, the Court concludes that Plaintiff has sufficiently alleged the objective element of an Eighth Amendment claim.

2. Subjective Requirement

Defendants also argue that Plaintiff has not established the subjective component of an Eighth Amendment claim. As set forth above, the subjective component requires "deliberate indifference." Allen, 48 F.3d at 1087. Deliberate [**13] indifference is found when a prison official knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837. The Court shall discuss the subjective component as to each Defendant in turn.

a. Defendant Woodford

Plaintiff alleges that Defendant Woodford, as Director of California State Prisons during the relevant time period between November 7, 2005 and December 16, 2005, was responsible for Plaintiff's deprivation of outdoor exercise because "she had to approve the deprivation period." FAC at 2. Defendant Woodford argues that the subjective requirement is not satisfied because Plaintiff makes no allegations that the lockdown or deprivation was directed at him, or that she acted with deliberate indifference toward Plaintiff. Woodford contends instead that she acted in accordance with an emergency situation triggered by multiple attempted murders of staff by inmates. Defs.' Mem. (Woodford & Janda) at 14-15.

Defendant Woodford fails to cite any authority supporting her position that the subjective element is only satisfied when the deprivation is targeted at a specific inmate, and the Court declines to draw this conclusion. The inquiry under the subjective requirement [**14] is whether the Defendant knew of and disregarded an excessive risk to Plaintiff's health or safety -- specifically, whether Defendant knew that the lack of outdoor exercise alleged by Plaintiff presented an excessive risk to Plaintiff's health or safety. Defendant Woodford's suggestion that the subjective element can only be met if the lockdown or deprivation was targeted at a specific inmate thus misses the point. Plaintiff need [*1211] not allege that the deprivation was directed at him in order to satisfy the subjective requirement. Rather, he need only allege that Defendant acted with deliberate indifference. Turning to this issue, Defendant Woodford argues that because the lockdown was in response to investigating and preventing further potentially deadly prison violence, she cannot be found to have acted with the requisite state of mind. In support of her argument, Defendant Woodford cites to the cases of Hurd v. Garcia and Hayes v. Garcia, in which courts in this district found that 5 and 10 month deprivations of outdoor exercise did not meet the subjective component when the deprivations were initiated for the primary purpose of responding to, investigating and preventing prison violence. [**15] See Hayes v. Garcia, 461 F. Supp. 2d 1198, 1207-08 (S.D. Cal. 2006); see also Hurd v. Garcia, 454 F. Supp. 2d 1032, 1044 (S.D. Cal. 2006).

This Court recognizes that in some circumstances, an emergency lockdown situation may justify a deprivation of outdoor exercise and may lead to a finding that the subjective requirement of an Eighth Amendment claim has not been met. However, the courts in Hurd and Hayes made their findings on motions for summary judgment, and only after the plaintiffs failed to set forth evidence of deliberate indifference. Hurd, 454 F. Supp. 2d at 1043; Hayes, 461 F. Supp. 2d at 1207. On a motion to dismiss, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. NL Indus., 792 F.2d at 898; Parks Sch. of Bus., 51 F.3d at 1484. Here, Plaintiff alleges the lockdown was not in response to an emergency situation or for penological reasons, but rather was implemented to punish him and was "utilize[d] as a deterrent to future staff assaults by subjecting inmates to such extreme suffering[] that they would dread another [**16] lockdown." FAC at 5, 7. As to Defendant Woodford specifically, Plaintiff alleges that she, as Director of California State Prisons, approved the deprivation period. Reading the pleadings liberally, Plaintiff has adequately alleged that Defendant Woodford acted with deliberate indifference because she approved the deprivation period and knew that the lack of outdoor exercise presented a risk to Plaintiff's health and safety. Plaintiff is entitled to offer evidence to support his claims.

b. Defendants Janda and Bourland

Plaintiff alleges that Defendants Janda and Bourland, as Associate Warden and Chief Deputy Warden of Calipatria between November 7, 2005 and December 16, 2005, respectively, were responsible for Plaintiff's deprivation because both Defendants were made aware of the deprivation through his CDC Form 602 grievance, and because both Defendants could have provided him with outdoor exercise. FAC at 2. Defendants Janda and Bourland, like Defendant Woodford, contend that the subjective requirement cannot be established when the lockdown and resultant deprivation of outdoor exercise were instituted in response to an emergency situation. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 13-16. [**17] As discussed above, the Court finds this argument unconvincing at this stage in the case.

Defendants Janda and Bourland also argue that by Plaintiff's own pleading, they had no authority to override the state of emergency and provide Plaintiff with outdoor exercise opportunities since Defendant Woodford had to approve the lockdown. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 13-16. Neither defendant, however, has established that Plaintiff, by his own pleading, concedes that Janda and Bourland had no authority to override the state of emergency and [*1212] provide Plaintiff with outdoor exercise. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 16. To the contrary, Plaintiff has specifically alleged that Defendants Janda and Bourland were both made aware of his deprivation of outdoor exercise through his CDC Form 602 grievance and that both defendants could have provided him with outdoor exercise opportunities. FAC at 2. Reading the pleadings liberally, the Court finds that Plaintiff has sufficiently alleged that Defendants Janda and Bourland acted with deliberate indifference because they knew of Plaintiff's deprivation of outdoor exercise and the risk the deprivation presented [**18] to Plaintiff's health and safety, and that they could have provided Plaintiff with outdoor exercise opportunities but failed to do so.

c. Defendant Giurbino

Plaintiff alleges that Defendant Giurbino, as Warden of Calipatria between November 7, 2005 and December 16, 2005, was responsible for Plaintiff's deprivation because he was responsible for Plaintiff's custody, treatment, and discipline, and because he had to approve the lockdown. FAC at 5. Like the other three defendants, Giurbino argues that the subjective component cannot be satisfied because the deprivation was in response to an emergency situation. The Court finds this argument unconvincing for the same reasons set forth above.

Defendant Giurbino further argues that because the deprivation of outdoor exercise had to be approved by Defendant Woodford in her capacity as Director of Prisons, he cannot be found to have acted with the requisite state of mind, particularly because the lockdown was not instituted without oversight. Def.'s Mem. (Giurbino) at 14-16. Plaintiff has alleged, however, that Defendant Giurbino, in addition to Defendant Woodford, had to approve the lockdown and deprivation period. FAC at 5. Reading the pleadings [**19] liberally, the Court finds Plaintiff has adequately alleged that Defendant Giurbino acted with deliberate indifference because he approved of the lockdown, knew that the lack of outdoor exercise presented a risk to Plaintiff's health and safety, and could have provided Plaintiff with outdoor exercise opportunities, but failed to do so.

The Court accordingly concludes that Plaintiff has made sufficient allegations to meet the subjective element of an Eighth Amendment claim as to all four defendants.

C. Qualified Immunity

Defendants further contend that they are entitled to dismissal pursuant to Fed. R. Civ. P. 12(b)(6) based on their qualified immunity. The entitlement to qualified immunity "is an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (emphasis omitted). "[Q]ualified immunity operates 'to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (citing Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (1991)). The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly [**20] established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

1. Step One - Constitutional Violation

The threshold question in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation. Saucier, 533 U.S. at 201; Jackson v. City of Bremerton, [*1213] 268 F.3d 646, 651 (9th Cir. 2001); Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003) (noting that because qualified immunity is "'an entitlement not to stand trial' . . . courts, not juries, [must] settle the ultimate questions of qualified immunity") (quoting Mitchell, 472 U.S. at 526). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201; see also Haynie v. County of Los Angeles, 339 F.3d 1071, 1078 (9th Cir. 2003).

As discussed above, the Court has found, taking the facts alleged in the Complaint in the light most favorable to Plaintiff, that Plaintiff has adequately alleged an Eighth Amendment claim against Defendants for denying him any outdoor exercise for [**21] a period of 39 days. Accordingly, because Plaintiff's allegations survive the first prong of qualified immunity analysis, the Court must turn to the next inquiry.

2. Step Two - Clearly Established Law

If a constitutional violation could be made out on a favorable view of Plaintiff's allegations, "the next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. "If the law did not put the officer on notice that his conduct would be clearly unlawful," a finding of qualified immunity is appropriate, as "qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law'." Id. (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

Here, Plaintiff alleges denial of any outdoor exercise for 39 days as a result of Defendants' conduct. Defendants argue that there is no clearly established right to outdoor exercise under the specific facts of this case. Defs.' Mem. (Woodford & Janda) at 16-18; (Giurbino) at 16-18; (Bourland) at 16-18. [**22] Specifically, Defendants contend that "the call is so close" as to whether a right to outdoor exercise existed under the facts of this case that it cannot be said to have been clearly established. Id. They also argue that there is a "void" in authority addressing the deprivation of outdoor exercise during a period between 28 and 42 days, and ask the Court to consider the difference between normal prison operations and an emergency lockdown situation. Id.

Under Saucier, it is not required that "courts must have agreed upon the precise formulation of the standard." Saucier, 533 U.S. at 202. Rather, so long as various courts have found that certain conduct is a constitutional violation "under facts not distinguishable in a fair way from the facts presented in the case at hand," an officer is not entitled to qualified immunity. Id. at 202-03. See also Hope, 536 U.S. at 739 ("This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent[]" (citations omitted)). It is also recognized that officers may make reasonable [**23] mistakes as to the legal restraints on particular conduct. "If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier, 533 U.S. at 205.

The critical inquiry here is whether reasonable prison officials in Defendants' positions [*1214] would have believed that depriving Plaintiff of outdoor exercise for 39 days was constitutionally permissible. Stated differently, the Court must determine whether Defendants were on "fair warning" that their alleged treatment of Plaintiff was unconstitutional. See Hope, 536 U.S. at 741. The Court finds that it was clearly established in 2005, when the deprivation allegedly occurred, that the denial of outdoor exercise for prison inmates for an extended period of time was a violation of the Eighth Amendment. See Spain, 600 F.2d at 199; Allen, 48 F.3d at 1088; Keenan v. Hall, 83 F.3d 1083, 1089-90. Although these cases do not involve precisely the same facts as those present here, they provided Defendants with fair warning concerning their conduct. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope, 536 U.S. at 741.

The [**24] Court concludes that, notwithstanding the lockdown, any reasonable official in Defendants' positions would have understood that the denial of outdoor exercise for an extended period of time was unconstitutional. The Eighth Amendment may be violated even in a lockdown situation. See, e.g., Hayward, 629 F.2d at 603 (examining conditions imposed during an emergency lockdown to determine whether they crossed the Eighth Amendment line). Furthermore, as discussed above, Plaintiff does not allege that the deprivation was a response to an emergency situation or that it was due to penological reasons. Rather, he alleges it was implemented to punish him and to inflict "extreme suffering" upon the inmates. FAC at 5, 7.

Finally, although Defendants Janda and Bourland advance the additional argument that reasonable officers in their positions would not know they had a "duty to usurp the authority of the Director of California State Prisons, ignore the confines of the lockdown, and thereby provide inmates with outdoor exercise," they provide absolutely no authority supporting their position.

For the foregoing reasons, the Court recommends that Defendants' Motion to Dismiss Plaintiff's First Amended [**25] Complaint on qualified immunity grounds be DENIED.

III. DEFENDANT RUTLEDGE

The original Complaint in this case set forth two claims: an Eighth Amendment claim against Woodford, Bourland, Giurbino and Janda, and a Fourteenth Amendment claim against Torres and Rutledge. Compl. [Doc. No. 1] at 1-2. After the Court dismissed Plaintiff's original complaint without prejudice (see Mar. 15, 2007 Order, Doc. No. 8), Plaintiff filed a First Amended Complaint, which is presently the operative pleading in this case. The First Amended Complaint sets forth two claims: again, an Eighth Amendment claim against Woodford, Bourland, Giurbino and Janda (referred to by Plaintiff in the FAC as "Ground One"), and a First Amendment claim against Torres (referred to by Plaintiff in the FAC as "Ground Two"). FAC at 1-14. Plaintiff explicitly states that he "names no other defendant as to Ground Two." Id. at 9. Although Plaintiff refers to Rutledge in the supporting facts relating to his First Amendment claim (see id. at 8, 10), it appears that Plaintiff did not intend that he be named as a defendant.

The Court's March 15, 2007 order dismissing Plaintiff's original Complaint expressly warned Plaintiff that his [**26] First Amended Complaint "must be complete in itself without reference to the superseded pleading," and that "[d]efendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived." Mar. 15, 2007 Order [*1215] at 9. Accordingly, because Defendant Rutledge is not named as a defendant in the FAC, the Court recommends that any claims against him be dismissed and that his status be reflected as "terminated" on the Court's docket.

IV. CONCLUSION AND RECOMMENDATION

For the reasons set forth above, this Court recommends that the District Judge issue an Order:

1. DENYING Defendants' Motions to Dismiss Plaintiff's Eighth Amendment claim;

2. DENYING Defendants' Motions to Dismiss on qualified immunity grounds; and

3. DISMISSING any claims against Defendant Rutledge.

This report and recommendation will be submitted to the Honorable William Q. Hayes, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before July 18, 2008. The document should be captioned "Objections to Report and Recommendation." Any reply to the Objections [**27] shall be served and filed on or before August 8, 2008. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

DATED: June 30, 2008

/s/ Jan M. Adler

Jan M. Adler

U.S. Magistrate Judge