Ninth Circuit: California Jail Prisoners Have No Constitutional Right Per Se to Outdoor Recreation and Direct Sunlight
by Matt Clarke
On August 26, 2021, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s decision not to expand a preliminary injunction issued on behalf of California jail detainees to include a requirement of access to outdoor recreation and direct sunlight for convicted prisoners.
The underlying case is a putative class-action filed in U.S. District Court for the Northern District of California by seven men held at County Jails 4 and 5 in San Francisco, alleging their civil rights under 42 U.S.C. § 1983 were violated by their deprivation of outdoor recreation and “sunlight unfiltered by windows” for lengthy periods.
The seven plaintiffs—Kenyon Norbert, Montrail Brackens, Jose Poot, Marshall Harris, Armando Carlos, Michael Brown and Troy McAllister—are held with others considered to be higher security risks, 90% of whom are pretrial detainees. They are housed in a 15-year-old facility, which is divided into 16 identical “pods,” each with 24 two-bunk cells facing a common area or “day room.” Each cell door has clear plastic that allows prisoners to see the day room. The back wall of each cell has a window that looks out onto another semi-transparent plastic wall allowing some natural light into the cells.
Each day room contains a shower, tables, telephones, a television, and stools and is connected to a gym the size of a basketball half-court. Each gym has two grates on the walls, allowing fresh air to circulate, and an “occluded sky view,” allowing some daylight to enter. But the jail has no secure outdoor space for recreation.
Daily day room access is four hours on weekdays and 8 hours on the weekend for those in the jail’s general population. Those in segregation get 30 minutes a day. All prisoners are allowed at least 30 minutes of gym time each day.
Plaintiffs filed a motion for a preliminary injunction, calling on an expert, Stanford University psychiatrist Dr. Jamie Zeitzer, who studies the effect of light deprivation. He submitted a report and testified at an evidentiary hearing, explaining that the body’s circadian clock depends on exposure to a regular light-dark cycle. Indoor lighting is insufficient for the body’s requirement, but generally light “filtered through windows” would suffice, he said. Importantly, Zeitzer had not examined or treated any plaintiff.
The district court found this “scientific evidence regarding access to light is inconclusive.” Moreover, plaintiffs’ expert had not demonstrated any harm they suffered from a lack of exposure to direct sunlight, as required for an Eighth Amendment claim for those plaintiffs who are convicted prisoners. Further, the district court held that they have no per se right to outdoor exercise, and the amount of recreation provided likely passed constitutional muster under the Eighth Amendment—though only “barely” for those held in segregation in County Jail 4, after jail officials agreed to move them and increase their weekly out-of-cell time from three to seven hours.
It was on the Fourteenth Amendment claim of those plaintiffs who are pretrial detainees that the district court allowed that “forcing people to live without direct sunlight for many years is simply punishment,” which pretrial detainees may not be subjected to. A jury would have to hear the evidence and make a final determination, but meanwhile the Court issued a preliminary injunction requiring the jail to provide those pretrial plaintiffs who have been incarcerated more than four years at least one hour of direct sunlight each week. Otherwise the plaintiffs’ motion was denied.
The City and County of San Francisco filed an appeal. Aided by Oakland attorney Yolanda Huang, plaintiffs filed a cross-appeal seeking expansion of the preliminary injunction to include convicted prisoners, too.
Taking up the case, the Ninth Circuit dismissed the City’s appeal, saying it was moot because the preliminary injunction had expired after 90 days because it wasn’t made permanent. As for plaintiffs’ cross-appeal, the Court agreed with the district court that plaintiffs had not identified any risk of harm from recreating indoors only or from lack of direct sunlight. It also said that the constitution requires prisoners be provided recreation opportunities but does not specifically require them to be outdoors. Therefore it declined to expand the injunction.
Plaintiffs had also appealed the district court’s dismissal of certain defendants, including the Sheriff’s Department, but the Court said such dismissals are generally not appealable and the requirements to do so were not met in this case anyway. The parties were then each ordered to bear their own attorney’s fees on the appeal. See: Norbert v. City and County of San Francisco, 10 F.4th 918 (9th Cir. 2021).
The case has now returned to the district court for a jury trial currently scheduled for March 2023. PLN will report updates as they become available. See: Norbert v. City and County of San Francisco, USDC (N.D. Calif.), Case No. 3:19-cv-02724-SK.
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Related legal case
Norbert v. City and County of San Francisco
|USDC (N.D. Calif.), Case No. 3:19-cv-02724-SK