The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [Doc. Nos . 85, 93]
On March 8, 2007, Gregory A. Franklin ("Plaintiff"), a state prisoner currently incarcerated Calipatria State Prison, proceeding pro se and in forma pauperis ("IFP"), filed a Complaint pursuant to 28 U.S.C. § 1983. Defendants Ochoa, Trujillo, Haley, Nelson, Ortiz, Vargas, Scribner, Bell and Madden filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b).*fn1 Instead of filing an Opposition Plaintiff sought and received leave of Court to file a First Amended Complaint. Plaintiff filed his First Amended Complaint ("FAC") on September 4, 2007. Defendants Bell, Haley, Madden, Ochoa, Ortiz, Nelson, Scribner, Trujillo, Vargas, Zills and Bass filed a second Motion to Dismiss Plaintiff's First Amended Complaint.
On March 5, 2008, the Court granted Defendants Motion to Dismiss Plaintiff's First Amended Complaint. At the time the Court ruled on Defendants' Motion, Plaintiff had not properly served Defendants Bourland, Giurbino or Greenwood.
Plaintiff filed his Second Amended Complaint ("SAC") on June 27, 2008 [Doc. No. 82]. In his Second Amended Complaint, Plaintiff added four new Defendants. These Defendants are Arias, Davis, Hopper and Maciel but a review of the Court's docket indicates that they have not been served or appeared in this action. Defendants Ochoa, Bass, Zills, Trujillo, Haley, Nelson, Ortiz, Vargas, Scribner, Bell and Madden filed a Motion to Dismiss Plaintiff's Second Amended Complaint on July 15, 2008 [Doc. No. 85]. In the meantime, the Court granted Plaintiff two extensions of time to serve Defendants Giurbino, Bourland and Greenwood. See July 10, 2008 Order at 2; see also Sept. 19, 2008 Order at 3. Defendants Giurbino, Bourland and Greenwood were eventually served and filed a "Notice of Motion and Defendants' Joinder in Motion to Dismiss" [Doc. No. 93] on October 23, 2008. Plaintiff requested additional time to file his Opposition to Defendants' Motion which was granted by the Court. Plaintiff filed his first Opposition to Defendants' Motion on January 28, 2009 [Doc. No. 100]. Plaintiff later filed a revised Opposition on January 30, 2009, to which Defendants have not objected, nor have Defendants filed a Reply to any of Plaintiff's Oppositions. Accordingly, the Court will consider the Opposition filed by Plaintiff on January 30, 2009 [Doc. No. 130] in deciding this matter.
On August 28, 2005, there was a riot that occurred on "C-Facility" at Calipatria State Prison. (See SAC at 9.) Warden Giurbino issued an order confining Plaintiff, as well as all inmates housed on "A-Facility," to their cell even though the riot occurred in a different part of the prison. (Id.) Warden Scribner, Chief Deputy Ochoa and Captain Greenwood continued this lockdown on "A-Facility" from January 2006 to March 13, 2006. (Id.) On March 20, 2006, there was another lockdown order confining "A-Facility" inmates to their cells from March 20, 2006 to May 10, 2006 due to an "isolated assault on an officer from a white inmate on 'B-Facility.'" (Id.) Plaintiff alleges Defendants Scribner, Ochoa and Nelson implemented a policy that only allowed Plaintiff and other "A-Facility" inmates one and one-half hours of outdoor exercise per week from March 13, 2006 to July 13, 2006. (Id. at 10.) From July 13, 2006 to April 16, 2008, Plaintiff received four hours of outdoor exercise a week. (Id.) Plaintiff also lists several individual dates from May 15, 2006 to April 16, 2008 in which he claims he was denied outdoor exercise.
In addition, Plaintiff claims that he has a serious medical need relating to foot surgery he had in February of 2007 and he is currently waiting for surgery on his other foot. (Id. at 12.) As a result of this unspecified foot condition, Plaintiff was issued a "soft shoe chrono." (Id.) On September 7, 2005, Plaintiff claims Defendant Bass came to his cell and refused to permit Plaintiff to wear soft shoes to the shower. (Id.) Plaintiff claims he needed to wear his tennis shoes to the shower for support and the denial of his request caused him pain as he walked to the showers. (Id.)
Plaintiff claims that Defendant Zills "took [Plaintiff's] morning meals from him several times arbitrarily." (Id. at 13.) Plaintiff claims he was not disruptive and did not refuse his meals. (Id.) On April 7, 2006, Defendants Vargas and Ortiz searched Plaintiff's cell and "arbitrarily took [Plaintiff's] legal books, legal papers and universal adapter." (Id. at 14.) In addition, Plaintiff claims Defendant Scribner issued an order on April 6, 2006 authorizing correctional officers to "take personal underwear, socks and t-shirts from inmates " which was later rescinded. However, Plaintiff claims to have had some clothes taken pursuant to this directive that were never returned. (Id.)
III. Defendants' Motion to Dismiss Pursuant to FED.R.CIV.P. 12(b)(6)
A. FED.R.CIV.P. 12(b)(6) Standard of Review
A motion to dismiss for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. 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. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
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 (1974). 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. Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000) (en banc). Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). And, while liberal construction is "particularly important in civil rights cases," Ferdik, 963 F.2d at 1261, "[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support [his] claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotation omitted).
Defendants seek dismissal of Plaintiff's claims for monetary damages to the extent that he is suing them in their "official capacity." (See Defs.' Mot. at 5; Defs.' Joinder at 2-3.). While the Eleventh Amendment bars a prisoner's section 1983 claims against a state actor sued in his official capacity, it does not bar damage actions against a state official sued in his personalor individual capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70--71 (1989). When a state actor is alleged to have violated both federal and state law and is sued for damages under section 1983 in his individual or personal capacity, there is no Eleventh Amendment bar, even if state law provides for indemnification. Ashker v. California Dep't of Corrections, 112 F.3d 392, 395 (9th Cir. 1997). Here, Plaintiff, as he has done previously, brings this § 1983 suit against Defendants in their official and individual capacities. (See SAC at 4-8.)
Thus, the Court GRANTS Defendants' Motions to Dismiss on Eleventh Amendment grounds only to the extent that Plaintiff seeks damages against them in their official capacities without leave to amend.
C. Count One*fn2 - Eighth Amendment Outdoor Exercise Claim
Plaintiff alleges separate time frames in which he claims that he was denied adequate outdoor exercise. First, Plaintiff claims that he was completely deprived of outdoor exercise by Warden Giurbino from August 18, 2005 to January of 2006. (See SAC at 9.) Thereafter, Defendants Scribner, Ochoa, Greenwood and Nelson are alleged to have continued the deprivation of outdoor exercise by allowing no exercise or only one and a half hours per week until July 13, 2006. From July 13 2006 Plaintiff contends that he has received four hours per week of outdoor exercise. (Id. at 9-10.) 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 v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994).
Plaintiff contends that the lockdown conditions imposed by Defendants constituted cruel and unusual punishment because Plaintiff was denied outdoor exercise for a period of eight months and then was allowed only limited outdoor exercise for nearly two years. (See SAC at 9-10.) In Spain, the court stated that "regular outdoor exercise is extremely important to the psychological and physical well being of the inmates." Spain v. Procunier, 600 F.2d at 189, 192, 199-200 (9th. Cir. 1979).
While a temporary denial of outdoor exercise would not necessarily rise to the level of a constitutional violation, the Court finds that Plaintiff's allegations of an almost total deprivation of outdoor exercise from August of 2005 to July 13, 2006 does meet the objective requirement for stating an Eighth Amendment claim. See Lopez, 203 F.3d at 1122. However, for the time period following July 13, 2006, Plaintiff's admission that he did receive four hours of weekly outdoor exercise does not meet the objective requirement. Because Defendant Madden is the only named Defendant not alleged to have participated in the total deprivation of outdoor exercise from August 2005 to July 2006, the Court finds that Plaintiff has not adequately alleged an Eighth Amendment claim against Defendant Madden.
However, the Court does find that Plaintiff has alleged facts sufficient to meet the objective requirement of an Eighth Amendment claim as to Defendants Giurbino, Scribner, Ochoa and Nelson as these Defendants were alleged to be responsible for creating and implementing the orders that led to the complete deprivation of outdoor exercise for several months.
The subjective component of an Eighth Amendment claim "requires the prisoner to also allege facts which show that the officials had the culpable mental state, which is 'deliberate indifference' to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Defendants argue that there were legitimate penological reasons for denial of outdoor exercise. Plaintiff argues in response that there were alternative methods that could have been used in order for him to have received the outdoor exercise. However, those are not issues that can be decided in a motion to dismiss. Thus, the Court finds that Plaintiff allegations that Defendants were aware of the long term deprivation of outdoor exercise is sufficient for the Court to find that Plaintiff has met the subjective requirement of an Eighth Amendment claim.
Defendant Madden's Motion to Dismiss Plaintiff's Eighth Amendment outdoor exercise claim is GRANTED pursuant to FED.R.CIV.P. 12(b)(6) without leave to amend. Defendants Giurbino, Scribner, Ochoa and Greenwood's Motion to Dismiss Plaintiff's Eighth Amendment outdoor exercise claims is DENIED for the time period prior to July 13, ...