The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge
ORDER ADOPTING REPORT; OVERRULING OBJECTIONS; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [doc. nos. 14,
Pro se plaintiff filed this action under 42 U.S.C. § 1983 contending that various prison officials deprived him of his Eighth Amendment rights by suspending his outdoor recreational privileges for 42 days, and violated his due process rights by failing to schedule an Institutional Classification Committee hearing within ten days. Defendants*fn1 moved to dismiss the complaint in its entirety contending that plaintiff failed to allege the objective and/or subjective elements of his Eighth Amendment claim, and failed to allege a violation of procedural due process. Defendants also seek qualified immunity for both of plaintiff's claims.
The matter was referred to Magistrate Judge Louisa S. Porter for a Report and Recommendation ("Report") in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge recommended that defendants' motions to dismiss the due process claim be granted and the Eighth Amendment claim be denied. Although plaintiff did not file objections to the Report, defendants have done so.
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- , 328 F.3d 1114, 1121 (9th Cir.) ( en banc), cert. denied, 124 S. Ct. 238 (2003).
1. Factual Background*fn2
On September 15, 2004, Defendant Houston allegedly loudly chastised the Administrative Segregation Unit ("ASU") supervisor and demanded that extra bed-space be provided for incoming Administrative Segregation inmates. Compl. at 3-4. Defendant Houston then advised the inmates, including Plaintiff, who was an inmate in ASU at the time, that failure to accept a cell mate would result in a Rule Violation Report and immediate yard suspension. Id. at 4. Upon Defendant Houston's departure, Defendants Cook, Mendez, Cordova, and Reyes ordered the prisoners to accept cell mates. Id. At this point, Defendant Mendez placed a sign above Plaintiff's cell door that read "Yard Suspended Pending ICC."*fn3 Id.
On September 20, 2004, Plaintiff received a Rule Violation Report ("Report") dated September 15, 2004. Id. In the Report, it is noted that, upon a direct order by Defendant Mendez to accept a cell mate, Plaintiff replied, "I am not taking a cellie." See Doc. No. 14, Decl. Of D. Hanlon. On September 23, 2004, Plaintiff attended a hearing concerning the rule violation. Id. At the hearing, Plaintiff was found guilty of the rule violation and given a thirty-day forfeiture of behavior credits. Id.
Approximately two weeks later, Plaintiff summoned Defendant Mendez to his cell door and asked why Plaintiff had not gone to ICC. Compl. at 4. Defendant Mendez replied, "Call me when you're ready to accept a cellie" and purportedly walked away. Id. On October 9, 2004, Plaintiff contacted Defendants Rodriguez and Barretto requesting that they review his file to determine whether Defendant Mendez had scheduled Plaintiff for ICC. Id. During the subsequent weeks, Plaintiff attempted to speak to Defendant Mendez by calling his name aloud as he passed Plaintiff's cell, whereupon Defendant Mendez would say, "Call me when you're ready to accept a cellie." Id. at 5.
On October 28, 2004, Plaintiff was summoned before ICC. Compl. at 5. There, Plaintiff notified Defendant Houston that he had been denied his outdoor recreation privileges for forty-two days. Id. Defendant Houston subsequently ordered Defendant Martinez to remove the yard suspension sign from Plaintiff's cell door. Id.
On November 12, 2004, Plaintiff filed an Administrative Appeal regarding the aforementioned incidents. See Compl. at 5. On December 1, 2004, Defendant Houston denied the complaint at the First level. Id. On January 2, 2005, Plaintiff processed the complaint at the Second level. Id. On February 9, 2005, the complaint was denied at the Second level. Id. On February 22, 2005, Plaintiff processed the complaint at the Third level. Id. On May 25, 2005, the complaint was granted in part at the Director's level. Id. CEN was ordered to conduct and document further investigation into Plaintiff's allegations and to report the disposition to Plaintiff. Id.
Defendants object to the magistrate's finding that plaintiff adequately alleged the subjective component of the Eighth Amendment claim and further object to the finding that they are not entitled to qualified immunity as to this claim.
a. Eighth Amendment Claim
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). 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 ...