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Chappell v. Pliler

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 10, 2009

REX CHAPPELL, PLAINTIFF,
v.
C.K. PLILER, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. Pending before the court is a motion for summary judgment brought on behalf of defendants Goughnour, Plier, Rosario, Stiles, and Vance pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion. Defendants have not filed a reply.

BACKGROUND

Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. On January 4, 2002, prison officials at CSP-Sacramento placed the facility on lockdown following a violent incident in the dining hall between Southern Mexican inmates and correctional staff. During the extended lockdown that resulted, he was not allowed outdoor exercise time, canteen privileges, quarterly packages, or visitation. In addition, prison officials issued a memorandum stating that all tobacco products would be considered contraband in 30 days. On two separate occasions during the lockdown, his attorney attempted to visit him but prison officials denied him the right to see him. Prison officials also denied plaintiff access to the law library. According to plaintiff, as a result of this lockdown he had virtually no permissible out-of-cell activity from January 2002 to August 2002. (Compl. at 1-7.)

Plaintiff claims that the defendants denied him outdoor exercise and access to the canteen for more than eight months in violation of the Eighth Amendment. In addition, he claims that the defendants interfered with his right of access to the courts by denying him visits with his attorney and access to the law library in violation of the First Amendment. Plaintiff also claims that defendants denied him equal protection and due process by imposing lockdown conditions on him while allowing privileges to those designated "critical workers" in violation of the Fourteenth Amendment. Finally, plaintiff claims that defendants violated California Penal Code § 825(b) and California Code of Regulations Title 15, § 3175. Plaintiff requests monetary damages. (Compl. at 12-17.)

SUMMARY JUDGMENT STANDARDS UNDER RULE 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

On February 2, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

OTHER APPLICABLE LEGAL STANDARDS

I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows: Every 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 . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Eighth Amendment and Denial of Outdoor Exercise and Personal Hygiene Items

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.

What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley, 475 U.S. at 320). However, to prevail on an Eighth Amendment claim, the plaintiff must show that objectively he suffered a "sufficiently serious" deprivation. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also show that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Farmer, 511 U.S. at 834.

It is well established that inmates have a constitutional right to outdoor exercise under the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). Long-term denial of outdoor exercise is unconstitutional. See Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979). However, "prison officials are authorized and indeed required to take appropriate measures to maintain prison order and discipline and protect staff and other prisoners. . . ." LeMaire, 12 F.3d 1458; Hayward v. Procunier, 629 F.2d 599 (9th Cir. 1980) (five-month lockdown did not violate Eighth Amendment in light of state of emergency).

It is also well established that inmates have a constitutional right to access personal hygiene items under the Eighth Amendment. See Keenan v. Hall 83 F.3d 1083, 1091 (9th Cir. 1996). Prison officials must provide inmates with basic human needs, including sanitation. See Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). However, the routine discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an Eighth Amendment inquiry. Only those deprivations denying "the minimal civilized measure of life's necessities" are sufficiently grave to form the basis of an Eighth Amendment violation." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

III. First Amendment and Denial of Access to Courts

"Prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). Such access must be adequate, effective, and meaningful. Id. at 822. Prisons officials must provide inmates with adequate law libraries or adequate assistance from persons who have training in the law. Id. at 828. However, a plaintiff claiming denial of access to the courts must show more than an inadequate law library or legal assistance program in the theoretical sense. The plaintiff must show that he suffered an "actual injury" as a result of the alleged inadequacies at the prison or that defendants hindered his attempt to pursue his legal claims. See Lewis v. Casey, 518 U.S. 343, 349 & 351 (1996).

The United States Constitution does not require the maximum or even an optimal level of access to the courts. See Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989). Nor does the Constitution guarantee inmates unlimited access to the library. See Lindquist v. Idaho State Bod. of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). Prison officials may regulate the time, place, and manner in which prisoners use library facilities, so "[t]he fact that an inmate must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the courts." Id.

If a prisoner asserts a backward-looking claim for denial of access to the courts and seeks a remedy for a lost opportunity to present a claim, he must allege three elements. First, he must identify a "non-frivolous" "arguable" underlying claim. Second, he must describe the official acts that frustrated the underlying litigation. Finally, he must identify a remedy that is not otherwise available in a future suit. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (discussing the elements of forward-looking and backward-looking access to courts claims); Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (discussing the elements of backward-looking access to courts claims), vacated on other grounds by, ___U.S.___, 129 S.Ct. 1036 (2009).

IV. Qualified Immunity

"Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions for the court are (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a statutory or constitutional right and (2) whether the right at issue was "clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001).

Although the court was once required to answer these questions in order, the United States Supreme Court has recently held that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 818 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity at that point without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 129 S.Ct. at 818-21.

In deciding whether the plaintiff's rights were clearly established, "[t]he proper inquiry focuses on whether 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted' . . . or whether the state of the law [at the relevant time] gave 'fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202). The inquiry must be undertaken in light of the specific context of the case. Saucier, 533 U.S. at 201. Because qualified immunity is an affirmative defense, the burden of proof initially lies with the official asserting the defense. Harlow, 457 U.S. at 812; Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992); Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1989).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. Defendants' Statement of Undisputed Facts and Evidence

Defendants' statement of undisputed facts is supported by citations to declarations by defendants Vance and Pliler. It is also supported by copies of CSP-Sacramento memoranda regarding the program status of B-Facility, CSP-Sacramento incident reports, plaintiff's visiting logs, plaintiff's movement history, and other internal CSP-Sacramento documents.

The evidence submitted by the defendants establishes the following. CSP-Sacramento is a Level IV maximum security prison. The inmates confined there are deemed to pose the greatest threats to institutional security and safety of staff. The facility is organized in three identical sets of buildings -- Facility A, B, and C. Each facility is comprised of eight blocks and each block consists of 64 cells and 128 beds. In 2002, approximately 1,000 prisoners of all races were confined in each of the three facilities. Each facility is self-contained and built around a yard where, absent unusual circumstances, inmates are allowed to exercise on a daily basis. On January 4, 2002, an inmate assault on staff began a two-year period of unprecedented violence at CSP-Sacramento. Inmate assaults on staff and ongoing ethnic and gang violence caused prison administrators to intermittently suspend normal programming at the prison. (Defs.' SUDF 5-10, Defs.' Ex. B.)

Specifically, on January 4, 2002, Officer Haggard attempted to counsel inmate Lopez about his behavior when Lopez attacked him. Officer Casey responded to the incident. In addition, Officer Huggins attempted to calm four other inmates nearby who began pushing him and striking the other officers. Lopez then ran towards Officer Frasier and began slugging him while additional inmates joined in the attack. The inmates assaulted the officers and threw objects at them. The assault ended after correctional staff fired two 40 mm rounds. A search of the area uncovered two weapons. (Defs.' SUDF 11, Defs.' Exs. B & C.) Officers Casey, Huggins, and Frasier suffered puncture wounds as a result of the attack, the type associated with inmate-manufactured weapons. Officer Haggard sustained injuries so severe that he had to be hospitalized in the intensive care unit. All of the officers were transported to and treated at Mercy Hospital. On the same day, prison officials declared a state of emergency and placed B-Facility on lockdown. During a lockdown, inmates are confined to their cells. They are cell-fed and allowed to exit their cells only for controlled showers. (Defs.' SUDF 12-14, Defs.' Ex. B.)

On January 4, 2002, prison officials notified staff and inmates in B-Facility of the program changes. All programs were discontinued, including yard, showers, visiting, work and education programs, canteen, telephone privileges, and religious services. Inmates could forward requests for legal materials to the librarian through housing unit staff. Medical Technical Assistants made rounds through the housing units, and inmates requiring emergency services would be sent to the clinic for treatment and medication. (Defs.' SUDF 15, Defs.' Ex. E.)

On January 8, 2002, inmates were allowed to shower. Prison officials escorted them in handcuffs one cell at a time with two escorts per inmate. On January 10, 2002, defendant Pliler authored a memorandum on inmate movement, requiring that all inmates be placed in restraints when escorted within the facility. Inmates in cells with "cuff ports" were placed in handcuffs and escorted to and from the showers. Inmates housed in units without "cuff ports" were released one at a time without restraints. Officers were not allowed into housing units with unrestrained inmates. In those instances, control booth officers controlled inmate movement. All inmates being escorted between facilities were in full restraints, including waist chains and leg irons. (Defs.' SUDF 16-17, Defs.' Ex. E.)

On January 18, 2002, prison officials lifted restrictions on attorney visits but kept most of the remaining restrictions in effect. On January 27, 2002, plaintiff met with his attorney, Michael Rooney. (Defs.' SUDF 18-19, Defs.' Exs. E & F.)

On January 22, 2002, inmates were allowed to exchange their dirty clothing for clean clothing through their cell door tray slots on a weekly basis. On February 4, 2002, inmates could access the canteen and purchase up to two books of stamps, envelopes, stationary, pens, and pencils. On March 1, 2002, inmates could purchase personal hygiene items. There were limits, however, on the number of items an inmate could purchase to ensure that there was an adequate supply for each inmate. (Defs.' SUDF 20-21 & 23, Defs.' Ex. E.)

On March 8, 2002, critical workers in B-Facility were allowed to return to their work assignments. In addition, critical workers could exercise on the yard, have visits on Saturdays and Sundays and also use the telephone. Cell-feeding continued but with hot meals served on trays. Chaplains conducted rounds for inmates who wanted to receive religious services at their cell doors. Inmates assigned to mental health groups were ducated for treatment. By March 19, 2002, critical workers could receive quarterly packages, have family visits and participate in drug and alcohol support groups. In addition, members of the Men's Advisory Committee ("MAC") could exercise on the yard. (Defs.' SUDF 24-25, Defs.' Ex. E.)

By March 27, 2002, all inmates could receive quarterly packages, and only Hispanic inmates were required to be in restraints during escorts. Critical workers could also have regular access to the library and attend religious services in the chapel or sweat lodges. In addition, members of the MAC executive body could access the yard, the MAC office, and housing areas during second watch. (Defs.' SUDF 26-27, Defs.' Ex. E.)

By April 3, 2002, all inmates could exercise on the yard according to the regular schedule. In addition, all inmates except Hispanic inmates were allowed Saturday and Sunday visiting. (Defs.' SUDF 28, Defs.' Ex. E.)

On April 14, 2002, a correctional officer noticed considerable tension on the yard between inmates belonging to the L.A. Crips gang, so prison officials began escorting them in unrestrained small groups. On April 15, 2002, a stabbing/slashing assault involving White inmates occurred on the main exercise yard. On the same day, prison officials discontinued work and education groups, yard access, law library access, religious services, telephone privileges, and family visits for Hispanic and White inmates and inmates belonging to the L.A. Crips gang. Programming remained normal for all other inmates. (Defs.' SUDF 29-30, Defs.' Ex. E.)

By May 1, 2002, less than four months after the lockdown began, programming largely returned to normal for all but the Southern Hispanic inmates at CSP-Sacramento. For example, inmates were allowed yard privileges subject to an approved yard schedule. (Defs.' SUDF 31, Defs.' Ex. E.)

However, on May 8, 2002, a Black inmate stabbed Officer Tuter in the B-Facility dining room, and prison officials declared another state of emergency. Prison officials placed B-Facility on lockdown and cancelled all programs for all inmates. On May 31, 2002, Acting Warden Rosario announced the state of emergency unlock criteria. Only inmates without disciplinary reports for staff assault for five years, weapons possession for three years, participation in a riot or battery on an inmate for two years, or possession or under the influence of inmate-manufactured alcohol would be assigned to or allowed to work in a job assignment without consistent gun coverage. (Defs.' SUDF 32-33, Defs.' Exs. E & G.)

By July 1, 2002, prison officials again began escorting inmates without restraints. In addition, inmates were allowed visiting and telephone privileges, quarterly packages, and access to the canteen. Three MAC members could also communicate with inmates from block to block. On July 10, 2002, White, American Indian, and inmates classified as "Other" deemed critical workers were approved for tier tender assignments and were allowed two hours on the yard per day. Southern Hispanic and Mexican National inmates were released to the mini-concrete exercise yards. By July 16, 2002, prison officials were only escorting Black inmates. Black inmates also had to resort to the paging system, while all other inmates could access the library. (Defs.' SUDF 34-36, Defs.' Ex. E.)

On August 8, 2002, a White inmate was stabbed on the main exercise yard, and prison officials again suspended privileges for White inmates. Black inmates continued on a limited program as well and were restricted to mini-concrete exercise yards. On August 15, 2002, prison officials discovered that a significant amount of metal stock was missing from dining rooms 3 and 4 in B-Facility. Because metal can be used to fashion inmate-manufactured weapons, prison officials suspended programs on B-Facility again. (Defs.' SUDF 37-38, Defs.' Ex. E.)

On August 22, 2002, two incidents involving White and Hispanic inmates occurred on mini-concrete yards in B-Facility and resulted in numerous serious injuries to inmates. Prison officials continued to suspend programs in B-Facility. (Defs.' SUDF 39, Defs.' Ex. E.)

On August 27, 2002, Black inmates and inmates classified as "Others" were approved for work and education assignments, canteen access, religious services, and yard. Programs remained suspended for other inmates in B-Facility. On August 28, 2002, plaintiff was transferred to Corcoran State Prison. (Defs.' SUDF 2 & 40, Defs.' Exs. A & E.)

If, as in this case, prison officials declare a state of emergency, they place the facility on lockdown and gradually reinstate regular programming. During the reinstatement, correctional staff interviews all inmates and searches all areas of the prison. The process is time and labor intensive. On January 4, 2002, there were approximately 1,000 inmates assigned to B-Facility. Staff escorted one inmate at a time from his cell to the program office to interview him. Staff followed up on any information they received during the investigation. In addition, staff shared information with other institutions and sent incident reports to the California Department of Corrections and Rehabilitation ("CDCR") and to the Law Enforcement Investigative Unit ("LEIU") for tracking purposes. LEIU advises the CDCR director of any patterns of inmate violence occurring statewide. (Defs.' SUDF 42-45, Defs.' Exs. B & D.)

The January 4, 2002, assault on correctional officers involved Southern Hispanic inmates, so correctional staff investigated the possibility that the Mexican Mafia prison gang at Pelican Bay State Prison ordered the assault. Staff at CSP-Sacramento communicated with staff at Pelican Bay and other institutions to compare information and verify possible leads. Staff at Pelican Bay also interviewed inmates in an attempt to gather information. Staff at CSP-Sacramento searched every cell and common area at the prison. Staff also dug up the yard to ensure that there were no weapons hidden there. (Defs.' SUDF 46-47, Defs.' Ex. B.)

After correctional staff completes inmate interviews and facility searches, administrative officials determine whether inmates who they do not consider a threat to the safety and security of the institution can return to regular programming. Groups not involved in the incident precipitating the declaration of a state of emergency are the first inmates allowed to return to regular programming. If an incident occurs during an unlock period, prison officials decide whether to continue the return to regular programming. Staff determines whether the incident is related to the original incident precipitating the declaration of a state of emergency and make changes to inmate programming accordingly. (Defs.' SUDF 48-49, Defs.' Ex. B.)

Between January 2002 and September 2003, there were four separate assaults on B-Facility staff. After each incident, prison officials determined whether to put B-Facility back on lockdown pending further investigation. After staff completed each investigation, administrative officials determined when inmates could safely return to programming. (Defs.' SUDF 50, Defs.' Ex. B.)

II. Defendants' Arguments

Defense counsel argues that the defendants are entitled to summary judgment in their favor on plaintiff's Eighth Amendment claims. Specifically, counsel argues that a prisoner's right to outdoor exercise is not absolute and that the Ninth Circuit has permitted long-term denials of exercise where there has been a particularized security risk. Here, counsel contends that the evidence shows that prison officials declared a state of emergency and implemented a lockdown after inmates stabbed several correctional officers. According to defense counsel, a total lockdown of the prison was necessary so that staff could investigate whether inmates planned any further violence. Staff also needed to interview inmates and search the institution for additional weapons. (Defs.' Mot. for Summ. J. at 8.)

Defense counsel contends that there was a threat of violence present for the duration of the two-year lockdown at CSP-Sacramento and notes that the duration of the lockdown was a result of repeated incidents of violence. Counsel argues that the recurring violence indicated to prison officials that they could not release prisoners in B-Facility because the risk of inmate and staff injury was too high. Instead of risking recurring violence, prison officials conducted investigations, searched for weapons, transferred inmates fomenting violence, and identified critical workers. According to defense counsel, although these actions took months to complete because of the large number of inmates at the prison, they were necessary to establish a reasonably safe environment for the general population at CSP-Sacramento. (Defs.' Mot. for Summ. J. at 8-9.)

Counsel argues that the evidence establishes that plaintiff did not have access to the yard for three months. He was then able to access the yard until prison officials implemented another lockdown in response to separate incident of violence. (Defs.' SUDF 28.) Counsel notes that plaintiff was not housed in B-Facility for the entire lockdown period but rather was moved between units until eight months after the initial lockdown when he was transferred to another state prison. (Defs.' Mot. for Summ. J. at 8-9.)

Defense counsel also argues that the Constitution does not recognize the right to canteen privileges. Although inmates have a right to obtain personal hygiene supplies if they cannot afford to purchase their own, plaintiff does not allege that he was deprived of all personal hygiene supplies at the beginning of the lockdown. Moreover, defendants contend, the evidence establishes that prisoners in B-Facility could purchase hygiene items by March 1, 2002, less than two months after the lockdown began. In this regard, defense counsel argues that plaintiff was not denied access to hygiene items for any significant period of time. (Defs.' Mot. for Summ. J. at 10.)

Defense counsel next argues that defendants are entitled to summary judgment on plaintiff's denial of access to courts claims because plaintiff cannot show that he suffered an actual injury as a result of defendants' alleged conduct. Specifically, plaintiff alleges that he would have been able to proceed to trial in two unidentified lawsuits if he had access to his attorney and the law library. However, defense counsel argues that plaintiff had access to his attorney within days of the lockdown, had access to the paging system during the lockdown and had access to the law library when programming returned to normal. (Defs.' Mot. for Summ. J. at 10.) Moreover, defense counsel argues that to adequately plead a backward-looking denial of access to courts claim, plaintiff must allege: (1) the loss of a non-frivolous lawsuit; (2) the official acts frustrating the litigation; and (3) the remedy that may be awarded as recompense but that is not otherwise available in a future suit. Here, according to defendants, plaintiff has not alleged which of his many court cases were frustrated by his lack of access to the law library. Moreover, plaintiff's assertion that he would have won a more advantageous settlement in one of those cases is speculative. In addition, counsel contends that it was not foreseeable that defendants' actions would deprive plaintiff access to the courts because he had access to the paging system during the lockdown, and by April 19, 2002, all inmates except Southern Hispanic, Southern Crip, and White inmates, had normal law library privileges. According to defendants, plaintiff could have gone to the library. Finally, defendants contend that plaintiff's allegation that they denied him access to his attorney is belied by the evidence. They note that although prison officials restricted all visiting at the beginning of the initial lockdown, they reinstated attorney visits within weeks. Defendants also point to evidence before this court establishing that plaintiff in fact met with his attorney on January 27, 2002, three weeks after the lockdown began. (Defs.' Mot. for Summ. J. at 10-12.)

Finally, defense counsel argues that the defendants are entitled to qualified immunity. Specifically, counsel contends that plaintiff cannot show that the defendants violated any clearly established constitutional rights. Counsel argues that there is no clearly established right to outdoor exercise or to other inmate programs when a lockdown is imposed as a result of ongoing violence within a prison. The right is even less clear where, as here, the efforts to restore normal programming are disrupted by recurring incidents of violence. Moreover, defense counsel argues that a reasonable person in the defendants' position would have believed that the decision to continue the lockdown until staff completed their investigations and the violence had subsided was legal. (Defs.' Mot. for Summ. J. at 12-14.)

III. Plaintiff's Opposition

Plaintiff's lengthy opposition to defendants' motion for summary judgment is supported by his own declaration, a statement of disputed facts, and a memorandum of points and authorities. Plaintiff's opposition is also supported by numerous exhibits attached thereto.

Plaintiff argues that defendants denied him outdoor exercise from January 4, 2002, to August 28, 2002, in violation of his rights under the Eighth Amendment. According to plaintiff, the defendants knew that Black and White inmates were not involved in the attack on correctional officers in January 2002, but they wanted Black and White inmates to get angry in order to provoke an inmate attack on Southern Hispanic inmates. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 3-4.)

In addition, plaintiff argues that the defendants commenced an investigation to identify who was responsible for the assault on correctional officers, but they knew which inmates were involved the moment the attack took place. Plaintiff further argues that defendants' cell searches were complete within the first week of the lockdown and their interviews with inmates were completed within two days of the incident. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 5-6.)

Plaintiff next argues that he had no law library access during the lockdown.

Although defendants claim that there was a paging system available, plaintiff argues that the law librarian instead spent her days making bag lunches for inmates. Plaintiff also argues that the defendants used food as a form of punishment and as a way to provoke the attack on Southern Hispanic inmates. Plaintiff argues in this regard that defendants would not allow inmates to purchase food items from the canteen and would not allow inmates to receive quarterly packages unless they were critical workers. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 7-8, 13-17.)

Plaintiff notes that defense counsel suggests that plaintiff moved between housing units at CSP-Sacramento during the lockdown, but points out that his moves were as follows: once he was placed on contraband watch, once he was in administrative segregation because he had an ongoing court case and needed access to the law library, and once he had an appearance in the Sacramento County Superior Court but returned the same day. In this regard, plaintiff appears to argue that he did not receive relief from the lockdown. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 9-11.)

Finally, plaintiff argues that defendants are not entitled to qualified immunity. He contends that the defendants knowingly and intentionally violated his constitutional rights. Plaintiff reiterates that he had nothing to do with the attack on correctional staff or any of the other incidents, but he nonetheless was required to suffer in his cell for more than eight months. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 24 & 29-32.)

ANALYSIS

I. Plaintiff's Eighth Amendment Claims

A. Denial of Outdoor Exercise

The instant case is virtually identical to two others filed in this court. See Norwood v. Alamedia, No. CIV S-03-2554 GEB GGH (E.D. Cal.); Williams v. Pliler, No. CIV S-03-0615 ALA (E.D. Cal.). In those cases, pro se plaintiffs alleged that the defendants violated their rights under the Eighth Amendment by denying them outdoor exercise during the same lockdowns imposed at CSP-Sacramento which are at issue here. As in this case, the defendants in those cases sought summary judgment in their favor on the Eighth Amendment claims. After reviewing the evidence submitted by the parties, the court determined in both cases that the defendants were not entitled to judgment as a matter of law because they had not met their initial burden of demonstrating the absence of a genuine issue of material fact. See Williams v. Pliler, No. CIV S-03-0615 ALA, 2007 WL 81914 at *19-*21 (E.D. Cal. Jan. 9, 2007); Norwood v. Alamedia, No. CIV S-03-2554 GEB GGH, 2007 WL 685940 at *25-*27 (E.D. Cal. Mar. 5, 2007).

In this case, the court also finds that defendants are not entitled to judgment as a matter of law. The parties do not dispute that plaintiff was subject to three lockdown periods during which time he did not have access to the yard. Prison officials first placed CSP-Sacramento on lockdown from January 2, 2002, to April 3, 2002, following an inmate assault on Officer Lopez and three other officers. Second, prison officials placed CSP-Sacramento on lockdown from May 8, 2002, to August 8, 2002, after an inmate assault on Officer Tuter.

Finally, a few days later, prison officials placed CSP-Sacramento on lockdown from August 15, 2002, to August 27, 2002, following the discovery of missing metal stock from the B-Facility dining rooms. On August 28, 2002, plaintiff was transferred to Corcoran State Prison and was no longer subject to the lockdowns imposed at CSP-Sacramento.

As in Williams and Norwood, the defendants in this case have not met their initial burden of demonstrating the absence of a genuine issue of material fact. Specifically, defendants have not provided any evidence demonstrating that prison officials had to maintain the three lockdown periods and restrict plaintiff's outdoor exercise for the length of time that they did. Although defendants establish, and plaintiff does not dispute, that prison officials conducted interviews with inmates and searched cells and common areas of the facility following the precipitating lockdown incidents, defendants fail to establish that the interviews and searches were ongoing through the duration of the lockdown periods. Rather, defendants merely state in general fashion that the interview and search process is time and labor intensive and took several weeks for prison officials to complete. (Defs.' SUDF 7.) Nor do defendants otherwise establish that the lockdown periods imposed at CSP-Sacramento were limited in duration as necessary to maintain prison order and discipline or to protect staff and prisoners. The court cannot find based on the limited evidence submitted by the defendants that a state of emergency continued to exist for the entire period of time so as to justify the extended lockdowns and denial of outdoor exercise to prisoners as occurred here. Accordingly, the court concludes that defendants are not entitled to summary judgment in their favor on plaintiff's Eighth Amendment claim based on the denial of outdoor exercise.

B. Denial of Personal Hygiene Items

The court also finds that defendants are not entitled to summary judgment in their favor as to plaintiff's Eighth Amendment claim based on the denial of access to personal hygiene items at the canteen. Although defendants acknowledge that inmates have a right to obtain personal hygiene items, they maintain that plaintiff has failed to allege that he was deprived of all personal hygiene items at the beginning of the lockdown. Defendants contend that inmates were allowed to purchase hygiene items at the canteen by March 1, 2002.

Defendants argument is unpersuasive for two reasons. First, plaintiff expressly alleges in his complaint that he "had long run out of those basic human need items which could only be purchased through the canteen such as toothpaste, deoderant [sic], lotion, grease, and soap." (Compl. at 9.) Moreover, even if plaintiff was able to access the canteen by March 1, 2002, that would have been two months after the beginning of the initial lockdown. Again, the defendants have failed to present evidence establishing that the two-month-long restriction that they imposed on canteen access was necessary to maintain prison order and discipline or to protect staff and prisoners. Accordingly, the court concludes that defendants are not entitled to summary judgment in their favor on plaintiff's Eighth Amendment claim regarding the denial of access personal hygiene items.

II. Plaintiff's First Amendment Access to Courts Claim

The court finds that defendants are entitled to summary judgment on plaintiff's denial of access to courts claims. Defendants' evidence establishes that on January 18, 2002, prison officials lifted restrictions on attorney visits for all inmates and that on January 27, 2002, plaintiff was able to meet with his attorney. In addition, defendants' evidence demonstrates that plaintiff was provided with intermittent access to the law library during the lockdowns and that during total lockdown periods all inmates could forward requests for legal reference materials to the librarian through housing unit staff. Given this evidence, the burden shifts to plaintiff to establish the existence of a genuine issue of material fact precluding summary judgment in defendants' favor.

The court has considered plaintiff's complaint as well as his opposition to the pending motion for summary judgment, statement of disputed facts and declaration. The undersigned finds that plaintiff has failed to submit any evidence supporting his claim of denial of access to the courts. In his complaint plaintiff alleges that he was forced to settle two cases because of the lockdowns, but he does not provide any evidence or information in support of the allegation, such as the type of the cases in question or the posture of the cases at the time he allegedly entered the settlements he claims to have been forced into. See Christopher, 536 U.S. at 415 ("the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint . . . ."); Lewis, 518 U.S. at 351 ("Bounds did not create an abstract freestanding right to a law library or legal assistance").

Moreover, even if plaintiff had alleged the loss of a "non-frivolous" or "arguable" case as a result of the lockdowns in his complaint, as he does in his opposition to the pending summary judgment, he has not provided any evidence to establish that defendants' actions caused his alleged deprivation or that he suffered any "actual injury." Specifically, in his opposition to defendants' motion, plaintiff merely argues that he was forced to settle Chappell v. Henry, No. CIV S-99-1454 FCD JFM P and Chappell v. Gaitonde, No. CIV S-99-0235 LKK JFM P for "little or nothing" when he could have prevailed at trial but for the lockdowns. In Chappell v. Henry, No. CIV S-99-1454 FCD JFM P, plaintiff was represented by counsel. To the extent that plaintiff claims that he did not have access to his attorney or access to the law library and that the lockdown conditions forced him to settle that case, his claim is unsupported by any evidence. It is true that plaintiff has submitted a letter written by his attorney Michael Rooney to defense counsel in Case No. CIV S-99-1454 FCD JFM P, in which attorney Rooney states that defense counsel improperly contacted plaintiff, provided him with analyses regarding the case and pressured plaintiff into a settlement agreement after the discussion. (Pl.'s Opp'n Ex. H.) However, even assuming that the events described in attorney Rooney 's letter took place, the settlement was reached and the court entered judgment in Case No. CIV S-99-1454 FCD JFM P well before defendants imposed the initial lockdown at CSP-Sacramento on January 4, 2002. See Chappell v. Henry, No. CIV S-99-1454 FCD JFM P (Judgment Entered Oct. 19, 2001).

Similarly, to the extent plaintiff claims that the lockdowns forced him to settle his claims in Chappell v. Gaitonde, No. CIV S-99-0235 LKK JFM P, court records as well as the evidence presented in this case demonstrate otherwise. As early as April 6, 2001, well before the initial lockdown was imposed at CSP-Sacramento, plaintiff (not the defendants) moved the court for a court-ordered settlement. On April 30, 2002, in the midst of the lockdown, plaintiff moved the court to schedule a trial confirmation hearing and informed the court that he had already attempted to settle the case on three occasions. Finally, on September 17, 2002, nearly a month after plaintiff had been transferred to Corcoran State Prison and was no longer subject to the lockdown conditions at CSP-Sacramento, plaintiff signed a settlement agreement and voluntarily dismissed the action in question by stipulation. Even if plaintiff's intermittent access to the law library and to the paging system at CSP-Sacramento were inadequate, "prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" Lewis, 518 U.S. at 351. A review of Case No. CIV S-99-0235 LKK JFM P demonstrates that plaintiff had more than a sufficient opportunity to present his claims in court. In fact, his case was proceeding to trial on February 3, 2003, long after he transferred to Corcoran State Prison, but plaintiff chose to voluntarily settle the matter. This was not a case, for example, where plaintiff was unable to file a complaint or unable to comply with a court order because of limited access to the library. Lewis, 518 U.S. at 351. Accordingly, the court concludes that defendants are entitled to summary judgment in their favor on plaintiff's First Amendment denial of access to courts claims.

III. Qualified Immunity

For the reasons set forth immediately above, the court has already determined that defendants are entitled to summary judgment with respect to plaintiff's denial of access to courts claim. Accordingly, the undersigned will only address defendants' qualified immunity arguments as they pertain to plaintiff's Eighth Amendment claims.

As noted above, the facts alleged in this case taken in the light most favorable to plaintiff are sufficient, if proven, to demonstrate that defendants violated plaintiff's rights under the Eighth Amendment. In addition, the state of the law in 2002 clearly would have given defendants fair warning that their refusal to provide plaintiff with adequate outdoor exercise was unconstitutional. See, e.g., Allen v. Sakai, 40 F.3d 1001, 1004 (9th Cir. 1994) (defendants were not entitled to qualified immunity because "[a]fter Spain and Toussaint, it should have been apparent to defendants that they were required to provide regular outdoor exercise to [plaintiff] . . . ."); LeMaire, 12 F.3d at 1457 ("Exercise has been determined to be one of the basic human necessities protected by the Eighth Amendment."); Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir. 1984) (denial of adequate outdoor exercise to inmates in administrative segregation raises a "substantial constitutional question"); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979) ("it was cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside except for occasional court appearances, attorney interviews, and hospital appointments.").

Likewise, the state of the law in 2002 clearly would have given defendants fair warning that their refusal to provide plaintiff with access to the canteen so that he could obtain personal hygiene items was unconstitutional. See, e.g., Toussaint, 801 F.2d at 1107 ("The discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety."); Keenan, 83 F.3d at 1091 (inmates have an Eighth Amendment right to personal hygiene items including tooth brushes and soap); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (prison officials are constitutionally obligated to furnish inmates with sanitary conditions under the Eighth Amendment).

Accordingly, defendants are not entitled to summary judgment in their favor with respect to their affirmative defense of qualified immunity with respect to plaintiff's claim that his rights under the Eighth Amendment were violated.

OTHER MATTERS

In addition to the claims addressed above, plaintiff expressly alleges in his complaint that defendants violated his rights under the Fourteenth Amendment's Equal Protection and Due Process Clauses as well as under California Penal Code § 825 and California Code of Regulations Title 15, § 3175. (Compl. at 12-15.) Plaintiff also appears to allege that defendants violated his rights under the Eighth Amendment by banning tobacco and by providing him with inadequate food. (Id. at 13-14.) Plaintiff elaborates on these aspects of his Eighth Amendment claim in his opposition to defendants' motion for summary judgment. However, defense counsel chose not to address these claims in the defendants' pending motion for summary judgment.*fn1 Moreover, defense counsel inexplicably elected not to file a reply in which these additional claims should have been addressed. Under the court's scheduling order, the time for filing additional pretrial motions has passed. See Orders filed July 9, 2008 (Doc. No. 44) and December 31, 2008 (Doc. No. 46). Nonetheless, under 28 U.S.C. 1915(e)(2)(B)(ii) "the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." See Byrd v. Maricopa County Sheriff's Department, ___ F.3d___, 2009 WL 1362941, *2-4 (9th Cir. May 18, 2009) (affirming the district court's sua sponte dismissal of a prisoner's equal protection cause of action for failure to state a cognizable claim even though defendants failed to move for summary judgment on that claim). In order to properly manage its docket and to ensure an orderly trial in this action, pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), the court will address plaintiff's outstanding claims below.

The court finds that plaintiff's complaint does not state a cognizable claim under the Fourteenth Amendment Equal Protection Clause. Equal protection is relevant with respect to classifications that impermissibly operate to disadvantage a suspect class or improperly interfere with an individual's exercise of a fundamental right. "[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319 (1993). The Ninth Circuit has held that "§ 1983 claims based on Equal Protection violations must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent." Byrd, 2009 WL 1362941 at *4 (quoting Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1026 (9th Cir. 1998)). In this case, plaintiff merely alleges that prison officials kept him on lockdown status for months while allowing other inmates classified as "critical workers" to access to the yard and the canteen. Plaintiff has not alleged facts demonstrating that he is a member of a suspect class in this regard. Rather, he simply alleges in conclusory fashion that this difference in treatment "was clearly an equal protection violation." (Compl. at 14-15; Pl.'s SDF at 3-4.) The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Plaintiff, who admits that he does not have a job, is not "similarly situated" to inmates classified as critical workers. Nor has plaintiff alleged that there was no rational basis for the difference in treatment between non-critical workers and critical workers. Accordingly, plaintiff has failed to allege a cognizable equal protection claim.

In addition, plaintiff's complaint does not state a cognizable claim under the Fourteenth Amendment Due Process Clause. Specifically, plaintiff has no procedural due process right to a hearing to determine whether defendants' decision to impose an emergency prison-wide lockdown was justified. See Hayward, 629 F.2d at 601-03; cf. Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) ("Because confinement to a prison cell does not violate in and of itself any recognized liberty interest of federal prisoners, no hearing was necessary before imposing 'cell lockdown'"). Insofar as plaintiff seeks to raise a substantive due process claim, "[w]here a particular amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process" must be the guide for analyzing plaintiff's claims.'" Albright v. Oliver, 510 U.S. 266, 273 (1994). Here, the Eighth Amendment provides the "explicit textual source of constitutional protection" for plaintiff's claims stemming from the challenged lockdowns.

Nor does plaintiff's complaint state a cognizable claim under California Penal Code § 825. That state statute governs an arrestee's appearance before a magistrate judge and states that, after an arrest, an attorney may visit the prisoner upon his request. Cal. Penal Code § 825(b). The provision allows a prisoner to recover up to $500.00 from an officer who refuses to allow such a visit. However, the civil remedy under § 825 by its terms extends only to arrestees, and not to convicted state prisoners.

Plaintiff's complaint also does not state a cognizable claim under the California Code of Regulations Title 15, § 3175. That regulation governs the standards of conduct for inmates and their visitors. See Cal. Code of Regs. tit. 15, § 3175 (a)-(c). However, there is no reported state or federal decision finding that an independent cause of action is authorized by these regulations. Section 1983 provides a cause of action only for violations of the United States Constitution and federal laws. See Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) ("To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.")

Finally, plaintiff's complaint also does not state a cognizable claim under the Eighth Amendment for the banning of tobacco from prisons. Even if plaintiff used tobacco, the vague and conclusory allegations of his complaint fail to allege any action by defendants causing sufficient harm to establish a constitutional violation in light of contemporary standards of decency. See Hudson, 503 U.S. at 8; see also, e.g., Lafaele v. Schwarzenegger, No. CIV S-06-1049 FCD DAD, 2008 WL 4532512 at *4 (E.D. Cal. Oct. 8, 2008) (plaintiff's complaint regarding the tobacco ban in state prisons failed to state a cognizable claim under the Eighth Amendment); Larson v. Runnels, No. CIV S-06-1413 ALA, 2008 WL 220377 at *3 (E.D. Cal. Jan 25, 2008) ("there are no court decisions holding that the denial of tobacco products, including snuff, deprives prisoners of their right to be free from cruel and unusual punishment"); Larson v. Runnels, No. CIV S-06-1934 FCD GGH, 2007 WL 2712110 at * 2 (E.D. Cal. Sept. 14, 2007) ("The actions of prison officials in banning tobacco cannot possibly be an Eighth Amendment or Fourteenth Amendment violation."); Owens v. Ayers, No. C 01-3720 SI (PR), 2002 WL 73226 at *3 (N.D. Cal. Jan. 15, 2002) ("It belittles the Eighth Amendment to suggest that a three-month ban on the possession of personal property, such as tobacco and lighters (which could not be used within the housing unit in any event), amounts to cruel and unusual punishment.")

Plaintiff's complaint does, however, state a cognizable claim for relief against defendants under the Eighth Amendment for the denial of adequate food. It is well established that "food is one of life's basic necessities" Foster v. Runnels, 554 F.3d 807, 813 (9th Cir. 2009). Under the Eighth Amendment, food does not need to be tasty or aesthetically pleasing, but it does need to be adequate to maintain health. LeMaire, 12 F.3d at 1456. In his complaint, plaintiff clearly alleges that during the challenged lockdowns defendants provided him with only two bag lunches a day and denied him access to the canteen, which carries a variety of food items that were, according to plaintiff, "very much needed!" (Compl. at 8-9.) In addition, plaintiff expressly claims that the defendants' actions in denying him access to the commissary/canteen services constituted cruel and unusual punishment. (Id. at 13-14.) Liberally construing plaintiff's pro se complaint, the court finds that plaintiff must be allowed to proceed on this claim.*fn2

For the reasons set forth above, the court will recommend that plaintiff's equal protection and due process claims under the Fourteenth Amendment, his state law claims under California Penal Code § 825 and California Code of Regulations Title 15, § 3175 (a)-(c), and his Eighth Amendment claim based upon the banning of tobacco from CSP-Sacramento be dismissed for failure to state a cognizable claim. The court will also recommend that plaintiff be allowed to proceed on his claim that his Eighth Amendment rights were violated when defendants allegedly denied him adequate food.*fn3

CONCLUSION

IT IS HEREBY RECOMMENDED that defendants' January 26, 2009 motion for summary judgment (Doc. No. 47) be granted in part and denied in part as follows:

1. Defendants' motion for summary judgment on plaintiff's Eighth Amendment claims be denied;

2. Defendants' motion for summary judgment on plaintiff's First Amendment denial of access to courts claims be granted;

3. Defendants' motion for summary judgment with respect to the affirmative defense of qualified immunity be denied;

4. Plaintiff's Fourteenth Amendment equal protection and due process claims, his state law claims brought under California Penal Code § 825 and California Code of Regulations Title 15, § 3175 (a)-(c), and plaintiff's Eighth Amendment claim challenging the banning of tobacco from CSP-Sacramento be dismissed for failure to state a cognizable claim; and

5. The case proceed solely on plaintiff's Eighth Amendment claims regarding denial of outdoor exercise, personal hygiene items and adequate food.

These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file and serve written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to objections shall be filed and served within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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