The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED, THUS CONCLUDING THIS ACTION IN ITS ENTIRETY (Doc. 22) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
I. Relevant Procedural History
Plaintiff Keith Duane Arline, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's claims under section 1983 against Defendant, Warden Ken Clark ("Defendant") for deprivation of outdoor exercise, in violation of the Eighth Amendment. On May 15, 2009, Defendant filed a motion to dismiss. (Doc. 22.) On July 8, 2009, Plaintiff filed an opposition to Defendant's motion to dismiss. (Doc. 29.) On July 27, 2009, Defendant filed a reply to Plaintiff's opposition. (Doc. 34.)
Defendant moves for dismissal on the grounds that Plaintiff failed to state a claim for relief against him; that Defendant is entitled to qualified immunity; and that Defendant is entitled to immunity under the Eleventh Amendment.
III. Failure to State a Claim
Defendant argues that Plaintiff fails to allege sufficient facts to state a claim against him. "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), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal at 1949 (citing Twombly at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
B. Eighth Amendment Claim
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, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Outdoor exercise is a basic human need protected by the Eighth Amendment, and the denial of outdoor exercise may violate the Constitution, dependent upon the circumstances. Richardson v. Runnels, - F.3d -, 2010 WL 276181, *5 (9th Cir. Jan. 26, 2010); Norwood v. Vance, Nos. 07-17322, 08-15778, 2010 WL 27406, *6 (9th Cir. Jan. 7, 2010); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). While the "'temporary denial of outdoor exercise with no medical effects is not a substantial deprivation,'" Norwood, 2010 WL 27406, at *5-7 (quoting May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997)), when an inmate alleges the denial of constitutionally adequate outdoor exercise, the inquiry is fact specific and thus requires full consideration of the context in which the denial occurred based on a fully developed record, Richardson, 2010 WL 276181, at *5; Norwood, 2010 WL 27406, at *5-7. "[W]hen balancing the obligation to provide for inmate and staff safety against the duty to accord inmates the rights and privileges to which they are entitled, prison officials are afforded 'wide-ranging deference.' " Norwood, at *6 quoting Bell v. Wolfish, 441441 U.S. 520, 547 (1979). "When a 'lockdown was in response to a genuine emergency,' and 'restrictions were eased as the prison administration determined that the emergency permitted,' we may not lightly second-guess officials' expert judgments about when exercise and other programs could safely be restored. 'These decisions are delicate ones, and those charged with them must be given reasonable leeway.' " Norwood, at *6 quoting Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980).
In paragraph four on the Complaint form utilized by Plaintiff, Plaintiff alleges that he was denied "outdoor access" during "frequent" episodes of "modified program" which caused him to be confined to his cell twenty four hours a day, seven days a week, for periods "lasting up to three months," and that as a result, he sustained "pain/health problems due to long hours in cell and days; back was x-rayed." (Doc. 4, Compl., p. 3, ¶ IV.) This rather cryptic description is further fleshed out via the exhibits to Plaintiff's Complaint.*fn1 In the exhibits, it is apparent that Plaintiff claims that his Eight Amendment rights to outdoor access were violated as a result of modified program scheduling initiated on at least two occasions: (1) on August 15, 2006 in response to an incident whereby cell-searches uncovered potentially deadly contraband (drugs, money, commercially manufactured weapons, recording devices, and cell phones) which resulted in a restriction of outdoor exercise for less than two months which was eased approximately half way through for Hispanic and white inmates; and (2) on October 20, 2006 in response to an incident of violence (battery on prison staff) in the facility which resulted in a restriction of outdoor exercise for an unspecified time frame (but presumably not more than three months based on his handwritten allegations). The Court notes a discrepancy between Plaintiff's use of the word "frequent" in his handwritten statement of claim on the form complaint (Doc. 4, Compl., p. 3, ¶ IV) and the mere two incidents evidenced by his ...