The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION TO DISMISS FILED BY DEFENDANT YORKE BE GRANTED IN PART AND DENIED IN PART (Doc. 57) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Shaun Kane ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 Plaintiff filed this action on November 7, 2006, while Plaintiff was a federal prisoner housed at the Fresno County Jail. The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, which applies to all civil actions in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
On April 10, 2007, the Court issued an order directing Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. Plaintiff opted to amend and filed a first amended complaint on April 19, 2007.
Plaintiff obtained leave to amend the first amended complaint and filed a second amended complaint on September 6, 2007. On February 27, 2008, after screening Plaintiff's second amended complaint ("the complaint"), the Court issued an order finding service of process appropriate for Defendants Richard Pierce, Margaret Mims, Jose Flores, Charlotte Tilkes, and Russell Yorke. Currently before the Court is a Motion to Dismiss and/or For Judgment on the Pleadings filed by Defendant Yorke ("Defendant") on October 16, 2008.*fn2 On December 19, 2008, Plaintiff filed a Reply and Opposition to Defendant Yorke's Motion to Dismiss. Defendant submitted a Reply to Plaintiff's opposition on December 31, 2008.
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
Defendant advances three arguments in the Motion to Dismiss. First, Defendant correctly asserts that Plaintiff's claims against Defendant in his official capacity as a U.S. Marshal are not cognizable. Plaintiff may not seek monetary damages against Defendant in his official capacity, as "no Bivens-like cause of action is available against federal agencies or federal agents sued in their official capacities." Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008) (citing FDIC v. Meyer, 510 U.S. 471, 485-86 (1994) (discussing sovereign immunity); Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000)). Plaintiff's claims against Defendant in his official capacity for prospective relief are moot, as Plaintiff is no longer housed at the Fresno County Jail and has not demonstrated a reasonable expectation of returning there. See ACLU v. Lomax, 471 F.3d 1010, 1017 (9th Cir. 2006) (request for relief is moot if there is no reasonable expectation that plaintiff will again be subject to same injury).
Second, Defendant contends that the complaint fails to state a claim for relief because Plaintiff does not allege that Defendant was personally involved in the alleged constitutional deprivation. Alternatively, Defendant contends that even if the complaint states a claim against Defendant for violating Plaintiff's constitutional rights, Defendant is entitled to judgment on the pleadings on the grounds of qualified immunity.
A. The Complaint States a Claim for Relief Against Defendant Yorke
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). "An Eighth Amendment claim that a prison official has deprived inmates of humane conditions must meet two requirements, one objective and one subjective. Under the objective requirement, the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities. The subjective requirement, relating to the defendant's state of mind, requires deliberate indifference." Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (quoting Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995)).
1) Objective Deprivation of a Constitutional Right
"Some form of regular outdoor exercise is extremely important to the psychological and physical well being of [prisoners]." Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). "Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation." Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Spain, 600 F.2d at 199 (term of years confined in segregated unit without outdoor exercise constitutes cruel and unusual punishment));*fn3 see also Allen, 48 F.3d at 1087 (six-week period in which prisoner was allowed only forty-five minutes per week of outdoor exercise sufficient to state Eighth Amendment claim); Lopez, 203 F.3d at 1133 (allegation of indefinite and thus potentially long-term confinement without outdoor exercise sufficient to state a claim); Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir. 1984) (denial of outdoor exercise to inmates assigned to administrative segregation for over one year raised "substantial constitutional question"); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (allegation that conditions prohibited prisoner from exercising in outdoor yard sufficient to withstand 12(b)(6) motion); but see LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993) (denial of outdoor exercise for forty-five day period due to disciplinary infractions held constitutional). An allegation that prison officials denied a prisoner outdoor exercise for an extended, continuous period of time is sufficient to state an objective violation of a prisoner's constitutional right to humane conditions of confinement. See Lopez, 203 F.3d at 133.
According to the complaint, Plaintiff was housed in the Fresno County Jail's administrative lock-down unit ("AJ2D"), which entailed solitary confinement in a single-man cell with effectively no windows. Plaintiff alleges that the noise level in AJ2D can be intolerable, and that the unit has a cockroach problem. Plaintiff alleges that he was confined to his cell for twenty-four hours a day, five days a week, and approximately twenty-three hours a day during the two days a week on which he was permitted to exercise in an indoor room. Plaintiff ...