The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court has before it a Report and Recommendation filed by the United States Magistrate Judge. (Dkt. 48.) The Magistrate Judge recommends that Defendants' Motion to Dismiss be granted based on qualified immunity. (Id. at 8.) Plaintiff has filed timely objections to the Report and Recommendation (Dkt. 53), and the Court now reviews Plaintiff's objections in accordance with 28 U.S.C. §636(b)(1)(C).
Plaintiff, a civil detainee detained by the State of California under the Sexually Violent Predators (SVP) Act*fn1 and a patient at the Coalinga State Hospital, complains that Defendants violated his constitutional rights by failing to provide him with greater access to a smoke-free outdoor exercise area. Plaintiff's only choices for exercise during the week were an indoor gymnasium or an outdoor "smoker's courtyard." During the weekends, policy provided that patients should have access to a track and softball field, except during those times of the year when the temperature was over 90 degrees. Despite the policy, Plaintiff alleges that, in fact, he was given access to the track and softball fields only once every fifteen weekends (not every weekend) over a span of two and a half years. He believes he should have been given access to the track and softball field during the week, regardless of the temperature.
Plaintiff also disagrees with the policy that the track and softball field are closed to patients when the temperature reaches 90 degrees, which occurs for about 70 days between May through September. Plaintiff also believes that there should be a restroom facility available outdoors.
Plaintiff first requested week-day access to the track and softball field on October 8, 2007. His request was denied. He made a second request on May 5, 2008, with a response that his request was under consideration. Plaintiff alleges that staff used that same response frequently, without making any changes.
In the summer of June 2008, Coalinga State Hospital was issued a fine for failing to comply with state law ETS standards, and the OSHA report particularly cited "appreciable ETS smoke" existing in the outdoor courtyards. On June 25, 2008, patients were given notice that Coalinga Hospital would be designated a smoke-free facility on August 1, 2008. During the course of this action, Plaintiff conceded that he had no facts to support his claims for injunctive and declaratory relief, given that the entire facility was smoke-free after August 1,2008.
The Magistrate Judge determined that Defendants were entitled to qualified immunity from damages. Plaintiff argues that the Report contains incorrect factual findings. Plaintiff states that the Magistrate Judge did not consider that Plaintiff actually was permitted to use the track and softball field only eight times between April 2006 and August 1, 2008 (once every fifteen weekends), and that this lack of access was not due to inclement weather, unusual circumstances, or disciplinary needs. (Plaintiff's Objections, Dkt. No. 53 at 5.) The Court has considered these additional allegations in reaching its conclusion, except the Court must also consider Plaintiff's statements in the Amended Complaint that outdoor exercise is not permitted when the temperatures reach 90 degrees, generally from April through September. High temperatures can constitute "inclement" (severe) weather. Questioning the Report's analysis, Plaintiff correctly points out that a prison's later remedying of a constitutional violation bears on only an inmate's request for injunctive or declaratory relief, but does not bear on his request for damages during the past time period when the constitutional violation existed. In McKinnon v. Taladega County, Alabama, 745 F.2d 1360, 1362 (11th Cir. 1984), the Court explained:
A claim for damages does not expire upon the termination of the wrongful conduct. Unlike declaratory and injunctive relief, which are prospective remedies, awards for monetary damages compensate the claimant for alleged past wrongs.
Id. at 1362 (internal citation omitted). Therefore, this Court does not consider that fact in the qualified immunity analysis.
Plaintiff next argues that the Report applies the Eighth Amendment, rather than the Fourteenth Amendment, to the facts at issue. The substantive rights of civilly committed persons derive from the Due Process Clause of the Fourteenth Amendment and not the Cruel and Unusual Punishment Clause of the Eighth Amendment. Hydrick v. Hunter, 500F.3d 978, 994 (9th Cir. 2007) (vacated on other grounds by Hunter v. Hydrick, -- U.S. --, 129 S. Ct. 2431, (2009) (mem.)). However, because civil detainees may not be punished, Eighth Amendment cases "set a floor" for considering the claims of civil detainees. Id. at 989.
Additionally, the United States Court of Appeals for the Ninth Circuit has determined that the Fourteenth Amendment is a "more protective" standard than the Eighth Amendment, Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004), and the United States Supreme Court has directed that "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). The Ninth Circuit has held that the standards applicable to all civilly committed persons should apply to SVPs, as well. Hydrick, 500 F.3d at 989.
Plaintiff's task in the qualified immunity context is to point to precedential cases-- interpreting either the Fourteenth Amendment or the Eighth Amendment--that constitute "clearly-established" law governing the particular issue at hand. Plaintiff's claims lie at the intersection of two federal rights: first, the right to regular outdoor exercise, Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); and second, the right to be free from excessive exposure to Environmental Tobacco Smoke (ETS), Helling v. McKinney, 509 U.S. 25, 29 (1993). The crux of the matter is whether clearly established law existed that would have placed Defendants on notice that they were violating Plaintiff's constitutional rights by offering him daily regular ...