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 AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) [Doc. Nos. 45, 49]
In this prisoner civil rights case, Dontay Hayes ("Plaintiff"), is proceeding in pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). Defendants Bourland, Giurbino, Janda and Tilton have filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 49]. Defendant Woodford filed a separate Motion to Dismiss Plaintiff's Amended Complaint [Doc. No. 45]. Plaintiff has filed a Response in Opposition to both Motions [Doc. No. 51], to which Defendants have filed their Replies [Doc. Nos. 52, 54].
In his original Complaint, Plaintiff alleged that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Dovey, Woodford, Giurbino, Bourland, Janda and Still deprived him of outdoor exercise for approximately nine months while Calipatria State Prison ("CAL") was on lockdown. See Compl. [Doc. No. 1] at 3. On April 22, 2010, this Court granted in part and denied in part Defendants' Motions to Dismiss pursuant to FED.R.CIV.P. 12(b)(6). See April 22, 2010 Order [Doc. No. 39]. Specifically, the Court dismissed Plaintiff's claims against all Defendants to the extent Plaintiff sought damages for acts taken in their official capacity, and all claims against Defendants Still, Dovey and Woodford for failure to allege any individual liability for violating Plaintiff's Eighth Amendment rights. Id. at 3, 6-7, 9. However, the Court declined to dismiss Plaintiff's Eighth Amendment claims against Defendants Janda and Bourland, finding that Plaintiff had adequately pleaded an Eighth Amendment claim against them based on their alleged failures to provide him with outdoor exercise during CAL's August 2005 through May 2006 lockdown, and further denied Defendants Giurbino, Janda and Bourland's claims of qualified immunity. Id. at 6-9. The Court further provided Plaintiff with the option of either filing an Amended Complaint or proceeding with his Eighth Amendment claims as alleged against Defendants Giurbino, Janda and Bourland only. Id. at 9.
Plaintiff elected to amend, and on June 18, 2010, filed an Amended Complaint ("FAC") which re-alleges, almost verbatim, his Eighth Amendment outdoor exercise claims against Defendants Woodford, Bourland, Giurbino and Janda. Plaintiff's First Amended Complaint also adds James Tilton as a Defendant, but it omits previously named Defendants Dovey and Still.*fn1
In his Amended Complaint, as in his original, Plaintiff alleges that Defendants imposed cruel and unusual punishment upon him when they locked down the general population at CAL after a staff assault and, as a result, "confined [him] to a double bunk cell twenty-four (24) hours a day, seven days a week," from August 2005 through May 2006. FAC at 4, 6, 10. Plaintiff contends he was permitted outside his cell during that time only to shower, "98% of the time in restraints," or for approved medical, dental or mental health care or law library access. Id. at 4. Plaintiff claims there "was a period in March when [he] was allowed to exercise outdoors once," but that as a result of being deprived of outdoor exercise for nearly nine months, he "suffered headaches, muscle cramps, stress, anxiety and depression." Id.
Plaintiff further alleges that the "disturbance" which prompted the lockdown was "contained and controlled by October 10, 2005," and as a result, "the administration ... beg[a]n to ease restrictions." Id. at 6. For example, Plaintiff alleges by November 5, 2005, "interviews had already been conducted," he and other critical workers were permitted to report to their assignments, and canteen and quarterly package privileges were resumed. Id. However, outdoor exercise continued to be denied Plaintiff and others even though they were "not part of the investigation" and "deemed [members of] a 'non-[a]ffected' race." Id. Plaintiff claims that Defendants continued the deprivation of outdoor exercise for a prolonged period "in bad faith" and "not to prevent a disturbance," but instead, "as a means to punish" and "deter future staff assaults by subjecting inmates to such extreme suffering that they would not want another period of lockdown." Id. at 6, 7, 10.*fn2
Plaintiff seeks both injunctive relief prohibiting Defendants "from continuing to use a basic human necessity as a tool to punish inmates," as well as general and punitive damages "no less than $250,000.00." Id. at 13.
III. Defendants' Motion to Dismiss Plaintiff's Amended Complaint
Defendants Janda, Giurbino, Bourland and Tilton seek dismissal of Plaintiff's Amended Complaint on the grounds that: (1) Plaintiff fails to state an Eighth Amendment claim against Defendants Bourland and Janda because he includes allegations which show they "did not personally have the power to impose the conditions Plaintiff complains of," see Def. Bourland, Janda, Giurbino and Tilton's Mem. of P&As in Supp. of Mot. to Dismiss [Doc. No. 49-1] at 8-11; (2) Plaintiff fails to state a claim against Tilton because he claims only that Tilton "continued the last weeks of [the] deprivation," but does not allege facts sufficient to show how long Tilton personally deprived Plaintiff of outdoor exercise after replacing Defendant Woodford as Director (or Secretary) of the California Department of Corrections and Rehabilitation ("CDCR"), id. at 12-14; and (3) regardless of any Eighth Amendment violation, all of them are entitled to qualified immunity. Id. at 14-18. Defendant Woodford, for his part, moves to dismiss solely on qualified immunity grounds. See Woodford's Mem. of P&As in Supp. of Mot. to Dismiss [Doc. No. 45-1] at 3-6.
A. FED.R.CIV.P. 12(b)(6) Standard of Review
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted).
A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009).
The court need not, however, accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555 (on motion to dismiss court is "not bound to accept as true a legal conclusion couched as a factual allegation."). "The pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
In addition, claims asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972); Erickson, 551 U.S. at 94. Because "Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings, [courts] continue to construe pro se filings liberally when evaluating them under Iqbal." Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (noting that courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.")).
In addition, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings, except for exhibits which are attached. SeeFED.R.CIV.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Casualty Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal ... is the complaint." Schneider, 151 F.3d at 1197 n.1. The court may also review "materials of which the court may take judicial notice." Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994), including public records and "proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. Nov. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
B. Eighth Amendment Deprivation of Exercise
Prison officials may violate the Eight Amendment's prohibition on cruel and unusual punishments if they deprive the inmate of "a single, identifiable human need such as food, warmth or exercise." Wilson v. Seiter, 501 U.S. 294, 304 (1991) (emphasis added); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010) ("[E]xercise if one of the most basic human necessities protected by the Eighth Amendment.").
To sufficiently allege an Eighth Amendment violation, however, the inmate must "objectively show that he was deprived of something 'sufficiently serious,'" and "make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
"[O]rdinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation" for Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). A prohibition on outdoor exercise of six weeks is a "sufficiently serious" deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (1994).
If the inmate alleges facts sufficient to show that his deprivation was objectively sufficiently serious, he must next "make a subjective showing that the deprivation occurred with deliberate indifference to [his] health or safety." Foster, 554 F.3d at 812 (quoting Farmer, 511 U.S. at 834). Deliberate indifference involves a two part inquiry. First, the inmate must show that the prison officials were aware of a "substantial risk of serious harm." Thomas, 611 F.3d at 1150 (quoting Farmer, 511 U.S. at 837). This part of the inquiry may be satisfied if plaintiff "shows that the risk posed by the deprivation is obvious." Id. Second, the inmate must "show that the prison officials had no 'reasonable' justification for the deprivation, in spite of that risk." Id. (quoting Farmer, 511 U.S. at 844).
Thus, the Ninth Circuit has specifically identified these types of conditions claims as "context-sensitive," Richardson v. Runnels, 594 F.3d 666, 673 (9th Cir. 2010), for they require consideration of the "individual facts of each case," id., including the length and severity of the deprivation, the circumstances giving rise to it, and the deference owed to prison officials charged with both a "duty to keep inmates safe" and the need to establish order and security, which must be "balance[d] ... against other obligations that our laws impose." See Norwood v. Vance, 591 F.3d 1062, 1068-1070 (9th Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3612 (April 7, 2010) (No. 09-1215) (hereafter "Norwood"). In short, because "a prisoner's right to outdoor exercise is [not] absolute and indefeasible, [nor does] it trump all other considerations," id. at 1068, it usually "require[s] a full consideration of context, and thus, a fully developed record." Richardson, 594 F.3d at 672 (citing Norwood, 591 F.3d 1062).
1. Defendants Janda and Bourland -- No Authority
Defendants Janda and Bourland move to dismiss Plaintiff's Eighth Amendment allegations, as they did in their previous Motion to Dismiss, on grounds that "there is sufficient information in the FAC from which the Court can determine that they did not have the authority to circumvent or overrule the judgments of CDCR Director Woodford and Giurbino, and therefore did not personally have the power to impose the conditions ...