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Marcus R. Williams v. Derral G. Adams

November 28, 2012

MARCUS R. WILLIAMS,
PLAINTIFF,
v.
DERRAL G. ADAMS, ET AL., DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 77)

Order on Motion for Summary Judgment

I. Procedural History

Plaintiff, Marcus R. Williams ("Plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 31, 2005. The Court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it stated a cognizable claim for relief under section 1983 against Defendants Adams, Hansen, Wan, and Beeler ("Defendants") for denial of exercise in violation of the Eighth Amendment.*fn1

Defendants filed a motion for summary judgment on December 1, 2008, Plaintiff filed his opposition on July 1, 2010,*fn2 and Defendants filed their reply on September 17, 2010.*fn3 (Docs. 77-84, 109-118, 122-125.) For the reasons discussed herein below, Defendants' motion is granted.

It is noteworthy that the documents submitted by the parties on this motion total approximately 2,000 pages. Such an onerous submission of documents is not well taken by a Court that is already laboring under limited resources with a nationally recognized, burgeoning caseload. The Court declines to address every piece of paper submitted by the parties and objections thereto, particularly where the parties have not specifically referred to individual pages of evidence.

For the most part, references to pagination of specific documents reflect those indicated on the upper right corners of the parties' submissions via the CM/ECF electronic court docketing system. Other pagination methods, when utilized, are identified.

Further, the documents submitted by Plaintiff in opposition to this motion are redundant, duplicative, and unnecessarily complicated by the fact that Plaintiff submitted two documents with separate sets of attached exhibits; rather than a solitary statement delineating his opposing evidence to dispute the facts Defendants assert as undisputed. One of these documents is entitled "Plaintiff's Concise Statement of Disputed Facts and Response to Defendants' Statement of Facts" ("PDF") (Docs. 113-118) in which Plaintiff admits and disputes the facts Defendants assert as undisputed. However, in the PDF, rather than citing to and relying on specific contradicting evidence attached thereto, Plaintiff refers to the other document he submitted entitled "Plaintiff's Statement of Facts and Response Declaration" ("PSFR"). (Docs. 109-112.)

The statements of fact in the PDF and the PSFR are not numerically correlated and raise different objections/disputes to Defendants' statements of fact. Further, both the PDF and the PSFR contain exhibits. Unfortunately, the exhibits to the PDF, while similarly identified via Roman Numerals, do not contain the same number of pages per exhibit as the exhibits to the PSFR that bear the same Roman Numeral. Thus, review of an exhibit referenced by Plaintiff had required not only review of the exhibit attached to the PDF, but also that attached to the PSFR, followed by comparison of the individual pages within each. Thus, consideration of Plaintiff's opposition is unnecessarily convoluted since the PDF and the PSFR both required review, cross-referencing, and extrapolation to ascertain which of the facts Defendants assert is undisputed Plaintiff actually disputes, to identify the evidence upon which Plaintiff relies to attempt to establish a given dispute, and to ascertain whether that evidence is admissible and establishes a dispute.

Likewise, review and consideration of Defendants' reply is also unnecessarily convoluted as they did not respond and raise objections to Plaintiff's statement of disputed facts in one document. Rather, they submitted three documents: "Defendants' Evidentiary Objections to Plaintiff's Exhibits" ("DEOPE") (Doc. 122); "Defendants' Responses and Evidentiary Objections to Plaintiff's Statement of Disputed Facts" ("DR&E") (Doc. 123); and "Defendants' Reply to Plaintiff's Concise Statement of Disputed Facts" ("DRPCS") (Doc. 125). There is no ascertainable basis to necessitate Defendants' filing of three documents where one would have sufficed and Defendants provide none. A plaintiff's filing of multiple documents in opposition to a defense statement of undisputed facts does not require a defense reply to follow suit. In the future, the Court strongly encourages defense counsel to consider whether documents submitted on any given motion are clear and concise, or will only serve to burden the Court with unnecessarily segmented, multiple, and redundant filings.

This Court has painstakingly waded through all documents submitted addressing this motion, opposition, and reply. All arguments, points and authorities, declarations, depositions, exhibits, statements of undisputed facts and responses thereto, objections, and other papers filed by the parties have been carefully reviewed and considered. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence submitted, but comments only on that deemed admissible, material, and appropriate.

The motion is deemed submitted. Local Rule 230(l).

II. Legal Standards for Motions for Summary Judgment

Any party may move for summary judgment which shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). While the Court may consider other materials in the record not cited to by the parties, it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

As the moving party, Defendants bear the initial burden of proving the absence of a genuine dispute of material fact. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Because Plaintiff bears the burden of proof at trial, Defendants need only prove that there is an absence of evidence to support Plaintiff's case. In re Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 326) (quotation marks omitted). If Defendants meet the initial burden, the burden shifts to Plaintiff to designate specific facts demonstrating the existence of genuine issues for trial. Id. (citing Celotex, 477 U.S. at 324).

In resolving Defendants' motion for summary judgment, all of the evidence must be viewed in the light most favorable to Plaintiff as the non-moving party, Garcia v. County of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011), all reasonable inferences must be drawn in his favor, LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009); Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 763 (9th Cir. 2006), and his response is treated more indulgently because he is the nonmoving party, Lew, 754 F.3d at 1423. However, Plaintiff must support his opposition with admissible evidence.

Verified pleadings and verified oppositions constitute opposing declarations so long as they are based on personal knowledge and they set forth facts admissible in evidence to which the declarant is competent to testify, Moran v. Selig, 447 F.3d 748, 759-60 (9th Cir. 2006); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998); Schroeder v. McDonald, 55 F.3d 454, 460 n.11 (9th Cir. 1995); McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam); Lew, 754 F.2d at 1423, with personal knowledge and competence to testify inferable from the declarations themselves, Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (per curiam) (quotation marks omitted); also Sea-Land Service, Inc. v. Lozen Intern, LLC, 285 F.3d 808, 819 (9th Cir. 2002). Arguments or contentions set forth in an unverified responding brief, on the other hand, do not constitute evidence. See Coverdell v. Dep't of Soc. & Health Servs., 834 F.2d 758, 762 (9th Cir. 1987) (recitation of unsworn facts not evidence). Since unverified, neither his opposition, nor the PDF have any evidentiary value.*fn4 However, the amended complaint and the PSFR are both admissible since verified. (Docs. 26, 109.)

III. Evidentiary Objections

A. Defendants' Objections

In conjunction with their reply, Defendants filed various evidentiary objections. (Docs. 122, 123.) In light of the legal standard detailed in the previous section and explanations provided in the following sections, the Court declines to individually address the objections, with the exception of the objections raised in the DEOPE (Doc. 122) to Plaintiff's Exhibit XIII "Deprivation Study of the Effects of Isolation," Exhibit XIV "Medical Records," and Exhibit XVI "Special Master Findings" for relevance and lack of authentication and foundation.*fn5

1. Relevance

Given the Court's duty to determine whether there exists a genuine dispute as to any material fact, an independent objection to evidence as irrelevant is both unnecessary and unhelpful. E.g., Carden v. Chenega Sec. & Protections Servs., LLC, No. CIV 2:09-1799 WBS CMK, 2011 WL 1807384, at *3 (E.D.Cal. May 10, 2011); Arias v. McHugh, No. CIV 2:09-690 WBS GGH, 2010 WL 2511175, at *6 (E.D.Cal. Jun. 17, 2010); Tracchia v. Tilton, No. CIV S-06-2916 GEB KJM P, 2009 WL 3055222, at *3 (E.D.Cal. Sept. 21, 2009); Burch v. Regents of the University of California, 433 F.Supp.2d 1110, 1119 (E.D.Cal. Jun. 5, 2006). Defendants' objections on relevancy grounds are therefore disregarded. The Court strongly encourages Defendants' counsel to reconsider burdening the Court with unnecessary evidentiary objections.

2. Authentication and Foundation

Federal Rule of Evidence 901(a) requires "authentication or identification as a condition precedent to admissibility." A foundation must be laid "by evidence sufficient to support a finding that the matter in question is what its proponent claims" before evidence may be admitted. Fed.R.Evid. 901(a). Unauthenticated documents cannot be considered in a motion for summary judgment, Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (citing Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)) (quotation marks omitted). Therefore, lack of proper authentication is an appropriate objection where a document's authenticity is genuinely in dispute.

An inquiry into authenticity concerns the genuineness of an item of evidence, not its admissibility, Orr, 285 F.3d at 776, and documents may be authenticated by review of their contents if they appear to be sufficiently genuine, Las Vegas Sands, LLC, 632 F.3d at 533 (citing Orr, 285 F.3d at 778 n.24) (quotation marks omitted).

The appearance, contents, and substance of Plaintiff's Exhibit XIV "Medical Records" and Exhibit XVI "Special Master Findings" lead the Court to easily conclude that the documents have been authenticated by their distinctive characteristics and that they are what they appear to be: official prison records of medical care and treatment rendered to Plaintiff and the Special Master's Final Report which issued in the Northern District of California, United States District Court in Madrid v. Tilton, Case No. C90-3094-T.E.H.. See Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 533; see also Abdullah v. CDC, No. CIV S-06-2378 MCE JFM P, 2010 WL4813572, at *3 (E.D.Cal. Nov. 19, 2010) (finding an objection for lack of foundation and authentication unavailing where the records were from the plaintiff's prison file and they were created and maintained by prison officials); Sanchez v. Penner, No. CIV S-07-0542 MCE EFB P, 2009 WL 3088331, at *5 (E.D.Cal. Sept. 22, 2009) (overruling lack of foundation and proper authentication objections to prison medical records submitted by the plaintiff); Johnson v. Roche, No. CIV S-06-1676 GEB EFB P, 2009 WL 720891, at *6 (E.D.Cal. Mar. 13, 2009) (overruling lack of foundation and proper authentication objections to prison records); Burch, 433 F.Supp.2d at 1119 (overruling objections to the introduction of documentary evidence where the defendants did not actually dispute the authenticity of them and where the plaintiff would be able to authenticate them at trial).

If Defendants genuinely disputed the authenticity of these two exhibits, more specific objections could have been made. However, since Defendants' objections were neither specific nor detailed, the bare objection to Plaintiff's use of prison medical records and a Special Master's Final Report in Madrid, for lack of proper authentication is overruled. Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 533.

Plaintiff's Exhibit XIII "Deprivation Study of the Effects of Isolation" appears to be either an article from a magazine/newspaper, or a self-contained piece of literature such as a pamphlet or small book. The article is not self authenticating, nor does it appear to be excerpted from any official prison records. Plaintiff merely attached this article as an exhibit to the PDF and the PSFR, which does not equate to proper authentication. See Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Defendants' objection to Plaintiff's Exhibit XIII "Deprivation Study of the Effects of Isolation" for lack of proper authentication is sustained.

3. Inadmissible Lay Opinion

Defendants also object to the content of the medical records submitted by Plaintiff (Doc. 112, PSFR Ex. XIV, pp. 55-66; Doc. 113-1, PDF Ex., pp. 31-44) arguing both that they do not attribute Plaintiff's complaints of headaches and/or gastro-intestinal upset to a lack of outdoor exercise and that they do not, and cannot, absent supporting expert medical testimony, establish the proximate cause of Plaintiff's medical conditions. (Doc. 124, Def. Reply, 8:8-19.)

Persons who do not have medical training do not qualify as expert witnesses such that any opinions they might render as to causation of a medical condition are inadmissible since they cannot be found to be based on reliable principles and methods. Fed. R. Evid.702. Further, lay opinions are admissible only if rationally based on the witness's perception; if helpful to clearly understand testimony or determine a fact in issue; and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. Thus, in regards to his medical condition, Plaintiff may only submit his testimony as to the symptoms he personally experienced, but may not offer opinions as to their cause, or as to any diagnosis of a medical condition based on those symptoms. Accordingly, Plaintiff's opinion that the dizziness, headaches, sore joints, and stiff muscles he experienced from January through May of 2005 and his hypertension/high blood pressure likely worsened due to a lack of outdoor exercise (See Doc. 109, PSFRs 44, 45) are inadmissible. Defendants' objection to Plaintiff's lay opinion as to the cause of his medical conditions is sustained.

B. Plaintiff's Objections

1. Prison Disciplinary Record

In his opposition, Plaintiff objects under Rules of Evidence 608 and 609 to Defendants' use and reference of his prison disciplinary record. (Doc. 109, PSFR 49; Doc. 113, PDFs 11-14.) Plaintiff argues that his disciplinary record is irrelevant, prejudicial, and not probative since Defendants do not argue that misconduct by Plaintiff caused any of the lockdowns in question. (Id., PSFR 49.) Plaintiff repeatedly argues that he, and others similarly situated as general population ("GP") inmates, should not have been subjected to lockdowns when only a few inmates were involved in a given altercation. (Doc. 109, PSFRs 30, 32, 34-38.) However, as noted by Defendants in their reply, Plaintiff's disciplinary record is relevant to counter Plaintiff's argument that he "was not a threat to the safety and security of the prison and thus, lockdowns served no penological purpose as applied to him." (Doc. 123, Def. Resp. & Obj to PSFR 49, p. 16.) Plaintiff's prison disciplinary record contains a number of infractions. When there has been an attack within a prison population, even model prisoners are subjected to changes in programming until the instigators and/or perpetrators are identified and safety/security issues are resolved. The fact that Plaintiff's prison disciplinary records contains a number of infractions is not relevant to this motion and Defendants do not submit it for purposes of Plaintiff's guilt for any such infractions; rather it is relevant to show that it was not unreasonable for prison officials to have subjected Plaintiff to lockdowns imposed on a suspect segment of the prison population of which Plaintiff happened to be a member until investigation had been conducted and the security concerns had abated.

Accordingly, Plaintiff's objections to Defendants' use and reference of his prison disciplinary record are overruled.

2. Expert Witness Qualifications

Plaintiff also variously objects that Defendants have not been qualified as expert witnesses such that their declarations should not be admissible as evidentiary support for the present motion. (Doc. 113, PDF, pp. 11, 13.) Defendant Wan's declaration shows that he is currently the Associate Warden for Central Services and Facility C of SATF; that he was the second watch Facility C Program Lieutenant from December 2, 2003 to May, 2004; and was the acting Facility Captain from May 1, 2004 to July 19, 2004, when he was promoted to the Facility C Captain where he served until October 1, 2005. (Doc. 82, Wan Decl., ¶ 2.) These titles and the various accompanying tasks and job duties require a level of knowledge and training which qualifies Defendant Wan as an expert on prison matters. Further, it has been held, that on the issue of deprivation of outdoor exercise subsequent to incidents of prison violence, ". . . prison officials are entitled to ' "wide-ranging deference." ' " Noble v. Adams, 646 F.3d 1138, 1143 (9th Cir. 2011) (quoting Norwood v. Vance, 591 F.3d 1062, 1069 (quoting Bell v. Wolfish, 441 U.S. 520, 547(1979))). The declarations of Beeler and Robinson contain only factual statements and are devoid of any opinion(s) so as not to require expert qualification.

Thus, Plaintiff's objections that Defendants have not been qualified as expert witnesses such that their declarations should not be admissible as evidentiary support for the present motion are overruled.

IV. Plaintiff's Opposing Evidence

As previously stated, Plaintiff submitted multiple, voluminous documents in opposition to the current motion. Even so, most of his opposition does not comply with procedural requirements and/or is not admissible for varying reasons.

The summary judgment rules apply with equal force to pro se litigants because they "must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). In fact, in Jacobsen v. Filler, 790 F.2d 1362 (9th Cir.1986), the Court rejected the argument that pro se non-prisoner litigants are entitled to notice from the court regarding the requirements of Rule 56. In so doing, the Court unequivocally stated that "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Id. at 1364. Accordingly, although Plaintiff is appearing pro se, he is held to the same standards as any other represented party on a motion for summary judgment. While the Court sympathizes with the difficulties Plaintiff faces in proceeding pro se, it is still Plaintiff's burden to have pursued his own discovery and to identify evidence on which he relies for the Court.

When denying a purportedly undisputed material fact, a party must provide specific "citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial." L.R. 260(b); see also F.R.E. 56(c)(1)(A). Much of the documentary evidence Plaintiff submitted is not specifically identified/referenced and is insufficient to raise a triable issue of fact. A number of Plaintiff's references to evidence he relies on to deny defense statements of fact do not include "a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon." Local Rule 260 and F.R.E. 56(c)(1)(A). Plaintiff's submissions of multiple paged documents as exhibits with only reference to the exhibit in general, without directing the Court to the specific part of the exhibit relied on, does not suffice to meet his opposing evidentiary burden.

Further, Plaintiff's declaration and/or statements that he lacks sufficient information or knowledge (see Doc 113, PDF, pp. 7, 8, 10, 22, 23, 27, 28) does not "set forth specific facts showing that there is a genuine issue for trial" of any given fact. Henderson v. City of Simi Valley, 305 F.3d 1052, 1056 (9th Cir. 2002).

V. Plaintiff's Cognizable Allegations and Claims in the Second Amended Complaint*fn6

Plaintiff alleged that between January 2004 and June 2005, he was denied adequate out-of-cell exercise and confined to his cell for an average of twenty-three and a half to twenty-four (23 1/2 - 24) hours a day, in violation of the Eighth Amendment. (Doc. 26, 2nd A/C.)

Under federal notice pleading standards, Plaintiff's allegations were found sufficient to give rise to a claim for relief against defendants Adams, Hansen, Wan, and Beeler. (Doc. 27 Screen F&R; Doc. 43, O Adopt.) Plaintiff alleged that these Defendants were employed at the institution in question, looked into the situation complained of, and found that inmates were being provided with adequate exercise -- which Plaintiff alleged was erroneous. Given their positions and titles, Defendants arguably had first hand knowledge of the conditions and the authority to make corrections. Plaintiff's allegations were accepted as true, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construed in the light most favorable to Plaintiff, and all doubts were resolved in Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). (Doc. 27, Screen F&R; Doc. 43, O Adopt.)

VI. Defendants' Motion for Summary Judgment

Defendants move for summary judgment arguing that:

(1) Defendant Beeler did not cause the alleged deprivation by denying Plaintiff's inmate appeal (Doc. 78, MSJ, pp. 16-18);

(2) under the normal program, Plaintiff received six hours out-of-cell time per week, which was not a deprivation of the minimal civilized measures of life's necessities so as to implicate the Eighth Amendment (id., at pp. 7-12);

(3) Defendants were not deliberately indifferent in assigning the yard schedule or imposing and continuing lockdowns since the legitimate penological purposes of institutional safety and security justified their actions (id., at pp. 12-14); and

(4) Defendants are entitled to qualified immunity (id., at pp. 14-16).

A. Defendant Beeler -- Review of Plaintiff's Inmate Appeal

1. Undisputed and Disputed Facts

Defendants present evidence to show that Defendant Beeler's duties did not include preparing yard or dayroom schedules, or imposing lockdowns, and that Defendant Beeler's only connection to Plaintiff was review and denial of Plaintiff's inmate appeal. (Doc. 79, DUF 5; Doc. 80, Beeler Decl.¶ 3; Plaintiff's Deposition ("Plntf. Dep.") 66:25-67:2.) This is sufficient to meet their burden of proving the absence of a genuine dispute of material fact such that the burden shifts to Plaintiff to designate specific facts demonstrating the existence of genuine issues for trial. In re Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 324).

Plaintiff attempts to demonstrate a dispute of these facts by stating that "in being employed and duly trained by CDCR as Lieutenant, Defendant Beeler had an affirmative duty and responsibility to enforce the laws, regulations, and procedures which govern the actions and activities of prisoners (PSFRs 4, 6) and part of Defendants [sic] Beeler duties and responsibilities consisted of interviewing prisoners regarding administrative 602/appeal grievances: gathering and investigating relevant facts to greivances [sic] filed by prisoners and Plaintiff believes that as part of his duties and responsibilities Beeler meet [sic] with his superiors Defendants Wan (Cpt) and Adams (W) regularly in preparing and enforcing the CSATF yard and dayroom schedules and imposing lockdowns as part of his duties and responsibilities as a supervisor of day to day functions, activities, services, etc. of prisoners. (PSFR 4)." (Doc. 113, PDF 5.)

In PSFR 4, Plaintiff states "Defendant D. Beeler has been employed with CDCR from 1997 to May 2005 and was at all relevant times to the pending matter employed at CSATF as Lieutenant [sic] responsible for among [sic] things the day to day functions, services, activities of the prison program and for reviewing, investigating and responding to prisoners [sic] 602/appeal grievances See Ex. 'I' D." Exhibit "I" D is a set of interrogatories and responses Plaintiff propounded on Defendant Beeler.

In PSFR 6, Plaintiff states that "[a]ll employees of the Department shall be responsible to enforce the laws regulations and procedures which govern the actions and activities of prisoners and of those persons who come into contact with prisoners See Ex. 'III'." Exhibit "III" is forty-four (44) pages out of Title 15 of the California Code of Regulations and Plaintiff neither directs the Court to a specific section therein, nor does he show any basis to impose responsibility on prison personnel beyond ensuring that they perform their specific job duties in a manner which comports with applicable laws, regulations, and procedures.

2. Legal Standard

"[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

Actions in reviewing a prisoner's administrative appeal cannot serve as the basis for liability under a § 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is not correct. "Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation." Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

Further, when resolving a claim under the Eighth Amendment against individual defendants, causation must be resolved via "a very individualized approach which accounts for the duties, discretion, and means of each defendant." Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) citing with approval Williams v. Bennett, 689 F.2d 1370, 1384 (11th Cir. 1982) ("There can be no duty, the breach of which is actionable, to do that which is beyond the power, authority, or means of the charged party. One may be callously indifferent to the fate of prisoners and yet not be liable for their injuries. Those whose callous indifference results in liability are those under a duty -- possessed of authority and means -- to prevent the injury.")

3. Discussion

As stated above, Defendants submitted evidence that shows Defendant Beeler's duties did not include preparing yard or dayroom schedules or imposing lockdowns and that Defendant Beeler's only connection to Plaintiff was the review and denial of Plaintiff's inmate appeal. (Doc. 79, DUF 5; Doc. 80, Beeler Decl.¶ 3; Plntf. Dep. 66:25-67:2.) This is sufficient to meet Defendants burden to shift the burden to Plaintiff 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).

The evidence Plaintiff submitted is based on his belief that: Defendant Beeler's duties included meeting with Defendants Wan and Adams to prepare and enforce lockdowns and yard and dayroom schedules (Doc. 113, PDF 3); Defendant Beeler's mere employment with CDCR for an extended period of years made him responsible for day to day functions, services, activities of the prison program (Doc. 109, PSFR 4); and just by being a CDCR employee, Defendant Beeler was responsible for enforcing the laws regulations and procedures which govern the actions and activities of prisoners and of those persons who come into contact with prisoners (id., at PSFR 6). However, Plaintiff's mere belief in these statements does not make them true, particularly where Plaintiff has not shown a basis to have personal knowledge of Defendant Beeler's job duties and responsibilities to make his opinions admissible. F.R.E. 56 (c)(4).

The documentary evidence Plaintiff submitted is also insufficient to raise a triable issue of fact. Plaintiff's references to the evidence he relies on in opposition to the defense statements of fact do not include "a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon." Local Rule 260 and F.R.E. 56(c)(1(A). A plaintiff's submissions of multiple paged documents as exhibits with only reference to the exhibit in general, without specifically directing the Court to the part of the exhibit relied on, does not suffice to meet an opposing evidentiary burden.

Additionally, while the Court declines to read all of the pages Plaintiff submitted as exhibits (i.e. forty-five (45) pages of Title 15 were attached as Exhibit III, referenced in PSFR 6), the evidence referenced in PSFR 4 (Exhibit I, D) was reviewed and found not only to be incomplete (lacking page 5), but the interrogatory responses therein that addressed Defendant Beeler's job duties do not support Plaintiff's assertions in PSFR 4.*fn7 The interrogatory responses did not show that Defendant Beeler was responsible for "the day to day functions, services, activities of the prison program" and there is no information in those responses suggesting that Defendant Beeler's duties required him to "meet [sic] with his superiors Defendants Wan (Cpt) and Adams (W) regularly in preparing and enforcing the CSATF yard and dayroom schedules and imposing lockdowns as part of his duties and responsibilities as a supervisor of day to day functions, activities, services, etc. of prisoners" as Plaintiff asserts.

Plaintiff fails to meet his burden to establish that Defendant Beeler had any responsibility for scheduling yard and/or dayroom schedules and/or imposition of lockdowns. Defendant Beeler's only involvement in the issues raised in this case was in the review and handling of Plaintiff's inmate appeals thereon -- which does not provide a basis for liability in an action under § 1983.

Defendants have met their burden of proving that no triable issue of fact exists as to Defendant Beeler's involvement in the allegations in this case. Since Plaintiff fails to demonstrate the existence of genuine issues of material dispute as to Defendant Beeler's involvement in this case, Defendant Beeler is entitled to summary judgment on Plaintiff's claims against him.

B. Eighth Amendment -- Exercise/Cell Confinement

1. Legal Standard

"[W]hile conditions of confinement may be, and often are, restrictive and harsh, they 'must not involve the wanton and unnecessary infliction of pain.'" Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The Eighth Amendment, which protects prisoners from inhumane conditions of confinement, Farmer v. Brennan, 511 U.S. 825, 833 (1994), is violated when prison officials act with deliberate indifference to a substantial risk of harm to an inmate's health or safety, e.g., Farmer, 511 U.S. at 828; Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010).

Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 U.S. at 834. First, the deprivation must be, objectively, sufficiently serious. Id. (quotation marks and citation omitted). The objective component is contextual and responsive to contemporary standards of decency. Hudson v. McMillian, 503 U.S. 1, 8 (1992). "Extreme deprivations are required to make out an Eighth Amendment conditions-of-confinement claim." Id., 503 U.S. at 9. "Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Id. (quotation marks and citations omitted).

Second, prison officials must have a sufficiently culpable state of mind, which for claims regarding conditions of confinement is deliberate indifference. Farmer, 511 U.S. at 834 (quotation marks omitted). Prison officials act with deliberate indifference when they know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837 (quotation marks omitted). Thus, prison officials may be held liable under the Eighth Amendment for denying humane conditions of confinement only if they know that inmates face a substantial risk of harm and they disregard that risk by failing to take reasonable measures to abate it. Id. at 847 (quotation marks omitted).

Inmates have a constitutional right to exercise and the denial of out-of-cell exercise for an extended period of time is sufficiently serious to state a claim under the Eighth Amendment. Thomas, 611 F.3d at 1151-52. There is no bright line in terms of how many hours of out-of-cell exercise per week satisfy the Constitution. See Noble, 646 F.3d at 1139-43 (qualified immunity applies as it is not established that no outdoor exercise or other privileges for approximately fifteen months due to emergency circumstances constituted a constitutional violation: "it was not clearly established in 2002 - nor is it established yet - precisely how, according to the Constitution, or when a prison facility housing problem inmates must return to normal operations"); Hebbe v. Pliler, 627 F.3d 338, 343-44 (9th Cir. 2010) (inmate impermissibly required to choose between exercise and law library access during the eight hours a week permitted out of his cell); Thomas, 611 F.3d at 1151-52 (no out-of-cell exercise for thirteen months created "substantial risk of serious harm" to inmate); Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) (at least two days a week for at least two hours total per week provided sufficient exercise); LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir. 1993) (no outof-cell exercise for most of a five-year period is an objectively serious deprivation); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (in-cell confinement for almost twenty-four hours a day and forty-five minutes of outside exercise per week for a six-week period is an objectively serious deprivation); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (fewer than five hours of exercise per week and no outdoor exercise for some inmates over a period of years is a constitutional violation). Short-term, temporary deprivations of exercise without medical effects are not sufficiently serious to support an Eighth Amendment claim, Thomas, 611 F.3d at 1155; Norwood, 591 F.3d at 1070; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Allen, 48 F.3d at 1088, but the deprivation of exercise for a period of six weeks can support a claim, Allen, 48 F.3d at 1088.

These standards apply to the multiple factual scenarios in this case which will be addressed in the following order: Modified/Normal Program; Lockdowns Generally; Specific Lockdowns (15); and Cumulative Effect (of individual lockdowns).*fn8 A preliminary discussion of the general background regarding the parties and the facility involved is helpful.

2. General Background

a. The Parties

At all relevant times, Defendant Adams was employed as the Warden of SATF; Defendant Hansen was employed as Associate Warden of SATF; Defendant Wan was employed as the second watch Facility C Program Lieutenant from December 3, 2003, to May 1, 2004, acting Facility C Captain from May 1, 2004 until July 19, 2004, when he was promoted to the Facility C Captain, and served as Facility C Captain until October 1, 2005; and Defendant Beeler was employed as a correctional office with the rank of Lieutenant, Facility D, at SATF.

Plaintiff is a level four prisoner who arrived at SATF on January 13, 2004. At all relevant times, Plaintiff was a GP inmate, confined at SATF, in Facility IV-C, Building C-7, with a cell-mate. On January 29, 2004, Plaintiff was classified and cleared for yard. On June 4, 2005, Plaintiff was removed from SATF GP after he stabbed two correctional officers with a sharpened piece of metal. Plaintiff has had approximately twenty rules violations, including approximately three for possession of weapons; three for possession of contraband; three for assault on fellow inmates; and two for assault on staff and he has been placed in the Security Housing Unit ("SHU") four times: in 1996--assault on an inmate; in 1999--assault on staff; in 2003--possession of a weapon; and in 2005--assault on staff.

b. SATF Facility IV-C

SATF is a medium-maximum security state prison. It consists of seven Facilities, (designated A-G), divided into four Complexes (designated I-IV), as follows: Complex I consists of Facility A and Facility B, which are Level II (medium, dormitory setting) housing facilities. Facility A is designed for sensitive needs (protective custody). Complex II consists of Facility C, which is a Level IV, maximum-security (180E design) facility. It is called a "180° Facility" because a guard standing in front of the buildings can see all buildings at once in a 180° arc. Plaintiff was housed in Facility C. Complex III consists of Facility D, a Level IV maximum-security (270° design) facility and Facility E, a Level III maximum-security (270° design) facility. Both Facilities D and E are designed to house the sensitive needs (protective custody) inmates. Complex IV consists of Facility F and Facility G, which are Level II substance abuse treatment facilities (dormitory setting).

Facility C is the only Level IV maximum-security facility that houses Level IV GP inmates. Facility C consists of eight housing buildings, designated C-1 through C-8. Plaintiff was housed in Building C-7. Buildings C-1 through C-4 are separated by a wall from buildings C-5 though C-8. Each group of four housing buildings are arraigned in the 180° design.

From 2004 to 2005, approximately 1200 inmates were confined in Facility C. Buildings C-1 to C-8 housed 1000 GP inmates. The gymnasium housed 200 Level II inmates.

Each housing building is divided in three sections of cells (A, B, and C) arraigned in 180°, with two tiers. In Building C-7, all three sections consist of 120-128 prisoners. Facility C has two large recreation exercise yards, which are divided by a wall. Recreation Exercise Yard #1 (Lower Yard) is for the inmates who are housed in Buildings C-1 through C-4. Recreation Exercise Yard # 2 (Upper Yard) is for the inmates who are housed in Buildings C-5 through C-8. These two large recreation yards both contain: a basketball court with two baskets, a baseball diamond, an area to play soccer with two soccer goals, a sand volleyball court and net, a handball court, a running track, four sets of chin-up and dip bars, several tables with seats, drinking fountains, urinals, toilets, and sinks. Each housing building has a small, walled area, in a wedge shape of approximately 2400 square feet. These small yards have no recreation equipment and accommodate only 10 to 20 prisoners at a time. They were intended for SHU inmates, in the event Facility C is converted to a SHU facility. Facility C has not been converted to a SHU facility, so these yards have never been used for SHU inmate exercise.

During a lockdown, inmates were not permitted outdoor exercise in the main yard, the small yards, or in any other area of SATF, because the risk of violence and injury was too great to permit it. During a lockdown, the small exercise yard could not be used in lieu of the main yard, because devoting custodial staff to escorting and supervision of inmates released to the small yards 10 to 20 at a time would have impeded and delayed investigations identifying instigators of the violence, thereby lengthening the time that all Facility C inmates would be deprived of exercise on the main yard.

3. Modified/Normal Program

Before 1998, it was common to have all housing buildings in a facility released to yard at the same time. However, the number of large scale inmate riots, violence perpetrated against prison staff, and other violent incidents increased, making this practice too dangerous to continue. When they attempted to intervene in violent incidents, staff were subjected to intimidation, harassment, and at times, assault. Allowing all SATF Facility C inmates simultaneous access to the exercise yard resulted in the untenably dangerous situation of having 1,200 prisoners out of their cells at once. It also allowed warring gangs to be simultaneously present in the yard and almost certainly resulted in violence and/or riots. For the safety of the prisoners and the staff, the practice of releasing all units in a facility to the yard at the same time was stopped.

Subsequently, inmates were released to the exercise yard for recreation by housing building and cell fed which initially was called "modified program." Because each housing building consists of approximately 128 inmates, and because known enemies and warring gangs are not housed in the same building, the modified program resulted in a much safer yard for both prisoners and staff. This modified program went into effect after the murder of an inmate on March 27, 2003 by two gang members and was the normal program of operation ("Normal Program") in the GP during the time Plaintiff was at SATF -- January 13, 2004 to June 5, 2005.

Under Normal Program, GP inmates in Facility C were allowed to attend work and educational programs (if assigned); had regular visiting, canteen and telephone privileges; attended religious services; and had access to the law library and the day-room. Also, these inmates were released to the exercise yard and day-room for recreation by housing building according to an established yard and dayroom schedule.

The established yard and day-room schedule provided two days a week for yard and one day a week for day-room for inmates classified as A2B. Inmates who were "Involuntarily Unassigned" for work or training under Cal. Code Reg. tit. 15, section 3044(b)(3) were classified as A2B. Inmates who had work or training assignments under Cal. Code Reg. tit. 15, section 3044(b)(2) were classified as A1A. A2B inmates did not get yard or day-room on the weekends or holidays because A1A inmates had weekday jobs such that they could not use the day-room or yard during the week. Another reason the A2B inmates did not have yard and day-room on weekends and holidays was that Facility C had less staffing (by at least ten officers) on weekends and holidays.

During Normal Program, A2B inmates received five hours a week yard-time, (two and a-half hours, two days a week) and one hour a week day-room, for a total of six hours of out-of-cell time each week, not including religious services, law library, and telephone use.

Yard and day-room sessions were divided between morning and afternoon sessions. Yard and day-room schedules were drawn up to allocate these sessions among the various housing buildings. For example, housing Building C-7 could be allocated morning yard on Tuesdays, afternoon yard on Thursdays, and afternoon day-room on Fridays. The written schedules were sometimes interrupted by lockdowns, fog or other inclement weather, incidents on the yard, emergency counts, or other safety considerations. The written yard schedules were frequently updated and were not archived. The most accurate way of tracking an inmate's actual yard and day-room time was by the C-7 Housing Unit Officer Logbook (Yard Log) and the C-7 Control Booth Officer Logbook (Control Booth Log). These logbooks recorded the days and hours that each housing building was released to, and recalled from, yard or day-room.

Normal Program, under which Plaintiff and similarly classified inmates received five hours a week yard-time, (two and a-half hours, two days a week) and one hour a week day-room, for a total of six hours of out-of-cell time each week, not including religious services, law library, and telephone must be examined under both the objective and subjective elements of a claim for deprivation of exercise in violation of the Eighth Amendment.

a. Objective Element - Sufficiently Grave Condition

As previously stated, there is no bright line in terms of how many hours of out-of-cell exercise per week satisfy the Constitution. However, some guidance can be gleaned from various cases in this Circuit. See Noble, 646 F.3d 1138 (qualified immunity granted where no outdoor exercise or other privileges for approximately fifteen months during and after a declared state of emergency in response to a major riot); Hebbe, 627 F.3d at 343-44 (inmate impermissibly required to choose between exercise and law library access during the eight hours a week permitted out of his cell); Thomas, 611 F.3d at 1151-52 (no out-of-cell exercise for thirteen months and twenty-five days found sufficiently serious to constitute a valid claim under the Eighth Amendment); Pierce, 526 F.3d at 1211-13 (holding that ninety minutes of exercise per week is not sufficient for inmates in administrative segregation who spend the bulk of their time inside their cells, but upholding (as corrective of that violation) the lower court's order requiring jail officials to allow those inmates to exercise at least two days a week for at least two hours total per week); Lopez, 203 F.3d at 1132-33 (six week prohibition on outdoor exercise was sufficiently serious to meet the objective requirement of an Eighth Amendment claim); May, 109 F.3d at 565-66 (twenty-one day denial of outdoor exercise while inmate in disciplinary segregated housing, without medical effects, was not a substantial deprivation of exercise); Allen, 48 F.3d at 1087 (in-cell confinement for almost twenty-four hours a day and forty-five minutes of outside exercise per week for a six-week period is an objectively serious deprivation); LeMaire, 12 F.3d at 1457-58 (no out-of-cell exercise for most of a five-year period is an objectively serious deprivation); Spain, 600 F.2d at 199 (fewer than five hours of exercise per week and no outdoor exercise for some inmates over a period of years is a constitutional violation).

Further, "other courts have held that detainees who are held for more than a short time and spend the bulk of their time inside their cells are ordinarily entitled to daily exercise, or five to seven hours of exercise per week, outside their cells." Pierce, 526 F.3d at 1212 (citing Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980) (holding that pre-trial detainees are generally entitled to one hour of exercise outside their cells daily if they spend more than sixteen hours in their cells); Housely v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) (overruled on other grounds by Tucker v. Graves, 107 F.3d 881 (10th Cir. 1997) (" 'a failure to provide inmates (confined for more than a very short period . . . ) with the opportunity for at least five hours a week of exercise outside the cell raises serious constitutional questions' ") (quoting Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir.1988) (addressing inmates in segregated housing)).

(1) In General

When compared to the circumstances in the cases just delineated, Normal Programming, which was implemented to allow general population inmates classified like Plaintiff (A2B) to be out of their cells at least six hours per week: five hours a week (divided evenly between two days) for outdoor yard and one hour a week for dayroom activities (see Doc. 79, DUF 25), is not, in and of itself, a sufficiently grave condition to meet the objective element of a claim under the Eight Amendment. Defendants' evidence shows that, as of the time that Plaintiff was confined in SATF, Normal Programming allowed Plaintiff to be out of his cell at least six hours per week: five hours a week (divided evenly between two days) for outdoor yard and one hour a week for dayroom activities. (See Doc. 79, DUF 25.) This meets Defendants' burden on the issue of Normal Programing sufficiently to shift the burden to Plaintiff. Plaintiff argues that the ...


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