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Glass v. Lamarque


June 2, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Plaintiff Robert Latrelle Glass is a prisoner of the State of California who is confined at Corcoran State Prison. He has filed this civil rights action under 42 U.S.C. § 1983 and seeks leave to proceed in forma pauperis. Venue is proper in this district as the acts complained of occurred when Plaintiff was incarcerated at Salinas Valley State Prison (SVSP), which is in Monterey County. 28 U.S.C. § 1391(b).


Plaintiff alleges that prison officials deprived him and all other SVSP C status inmates*fn1 of access to the outdoors and exercise from October 30, 2001, until March 5, 2003. As a result, Plaintiff suffered physical and psychological deterioration and distress and received numerous disciplinary write-ups.

While on lockdown, the C status inmates, individually and as a class, pursued the administrative grievance process and eventually filed a petition for a writ of habeas corpus in Monterey County Superior Court on November 17, 2002. On December 17, 2002, the court issued an order to show cause why yard access should not be granted. On February 26, 2003, Warden Anthony A. Lamarque issued a revised and new Operational Procedure #11 providing yard access to the C status inmates three times a week. On March 5, 2003, Plaintiff began receiving yard and exercise access. On April 17, 2003, Plaintiff and other C status inmates were transferred to Corcoran State Prison. Plaintiff seeks monetary damages for the alleged deprivation of his right to be free from cruel and unusual punishment under the Eighth Amendment, the denial of his rights to due process and equal protection, and violations of State law.*fn2



To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins, 487 U.S. 42, 48 (1988). "'[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).


Exercise is one of the basic human necessities protected by the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993); Toussaint v. Rushen, 553 F. Supp. 1365, 1380 (N.D. Cal. 1983), aff'd in part and vacated in part, 722 F.2d 1490 (9th Cir. 1984). Prisoners who are "confined to continuous and long-term segregation" may not be deprived of outdoor exercise. See Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). The "long-term" deprivation of outdoor exercise to such prisoners is unconstitutional. See LeMaire, 12 F.3d at 1458; see, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc) (denial of outdoor exercise for 6-1/2 weeks meets the objective prong of Eighth Amendment deliberate indifference claim); Keenan, 83 F.3d at 1089-90 (plaintiff's undisputed claim of denial of outdoor exercise for six months while in segregation sufficient to proceed to trial); Allen v. Sakai, 48 F.3d 1082, 1087-88 (9th Cir. 1994) (deprivation of outdoor exercise for six weeks to prisoners in indefinite segregation enough to state Eighth Amendment claim), cert. denied, 514 U.S. 1065 (1995); Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir. 1984) (denial of outdoor exercise to prisoners assigned to administrative segregation for over one year raised "substantial constitutional question"); Spain, 600 F.2d at 199-200 (complete deprivation of outdoor exercise for four years to prisoners in continuous segregation violated Eighth Amendment). Thus, Plaintiff states a cognizable Eighth Amendment claim for relief.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). In determining the validity of a prison regulation or practice claimed to infringe on an inmate's right to equal protection, the court asks whether the regulation or practice is "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987) (listing four factors to be considered in applying test). Plaintiff alleges that he was denied exercise solely because of his C status and for no legitimate penological purpose. The Court liberally construes this as a cognizable equal protection claim. Plaintiff has not alleged facts, however, from which the Court can find a cognizable due process claim. Accordingly, this claim is DISMISSED without prejudice to Plaintiff reasserting this claim if he can cure this pleading deficiency. Plaintiff has linked the named Defendants adequately to his claims as individuals who participated in the grievance process and denied his appeals.


In his complaint, Plaintiff refers to what appears to have been a successful habeas petition brought in State superior court. To the extent the claims raised in the present action were included in that action, the doctrines of collateral estoppel and res judicata might bear on some or all of Plaintiff's claims. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1347 (9th Cir.) (State habeas proceeding precludes identical issue from being relitigated in subsequent § 1983 action if State habeas court afforded full and fair opportunity for issue to be heard), cert. denied, 454 U.S. 895 (1981); Sperl v. Deukmejian, 642 F.2d 1154, 1155 (9th Cir. 1981) (same). Such issues may be addressed, if appropriate, in the dispositive motions scheduled below.


For the foregoing reasons, the Court orders as follows:

1. Leave to proceed in forma pauperis is GRANTED (docket no. 2).

2. The Clerk of the Court shall mail to SVSP Defendants Warden Anthony Lamarque, Chief Deputy Warden Edward J. Caden, Correctional Administrator M.P. Monteiro, Facility Captain J. Batchelor, Facility "B" Captain D.M. Mantel, Facility B Lieutenant M. Treadwell and CDC Defendant Chief of Inmate Appeals Rick Manuel: a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1), and a copy of this Order. The Clerk of Court shall also mail a copy of the complaint and a copy of this Order to the State Attorney General's Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order to Plaintiff.

3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty days from the date on which the request for waiver was sent or twenty days from the date the waiver form is filed, whichever is later.

4. Defendants shall answer the complaint in accordance with the Federal Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:

a. No later than sixty (60) days from the date their answer is due, Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.

b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than thirty (30) days after the date on which Defendants' motion is filed. The Ninth Circuit has held that the following notice should be given to pro se plaintiffs facing a summary judgment motion:

The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact--that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted in favor of defendants, your case will be dismissed and there will be no trial.

See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc).

Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendants' dispositive motion. Such evidence may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply by repeating the allegations of his complaint.

c. If Defendants wish to file a reply brief, they shall do so no later than fifteen (15) days after the date Plaintiff's opposition is filed.

d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.

5. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison.

6. All communications by Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.

7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion.

8. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.


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