Bejarano v. Allison

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF NO. 71.]

         Plaintiff Bob Bejarano is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff declined United States magistrate judge jurisdiction on January 27, 2011; therefore, this matter was referred to the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. Defendants have not consented or declined United States magistrate judge jurisdiction.

         Currently before the Court is Defendants' motion for summary judgment, filed October 14, 2015.

         I. RELEVANT HISTORY

         This action is proceeding on Plaintiffs first amended complaint, filed May 31, 2011, against Defendants Allison, Goss, Hernandez, and Perez for subjecting Plaintiff to conditions of confinement, namely the denial of outdoor exercise in violation of the Eighth Amendment.

         After the denial of Defendants' motion to dismiss the complaint, Defendants filed an answer to the complaint on October 31, 2014. (ECF Nos. 53 & 55.)

         On October 14, 2015, Defendants filed the instant motion for summary judgment. (ECF No. 71.) After Plaintiff received an extension of time, he filed an opposition to Defendants' motion on December 11, 2015. (ECF No. 75.) Defendants filed a reply on January 12, 2016. (ECF No. 78.) Pursuant to Local Rule 230(l), the motion is deemed submitted for review without oral argument.

         II. LEGAL STANDARD

         Any party may move for summary judgment, and the Court shall grant summary judgment 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) (quotation marks omitted); Washington Mut. 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) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).

         III. DISCUSSION

         A. Summary of Plaintiff’s First Amended Complaint

         Plaintiff's First Amended Complaint alleges fact related to his conditions and confinement from approximately June 21, 2009 until April 22, 2010. On June 21, 2009, Facility C was placed on lockdown for a group disturbance between southern and northern Hispanics. From July 12, 2009 until July 18, 2009, prison officials completed a search of the facility and conducted interviews. Shortly thereafter, southern Hispanic inmates were subjected to a modified program that deprived inmates of out-of-cell exercise, pending further investigation. The modified program without out-of-cell exercise continued for eleven months. During the lockdown, Plaintiff was confined in his cell seven days a week except for a five minute shower every other day except Sundays. Plaintiff alleges that Defendants Allison and Hernandez were directly responsible for the lockdown of Facility C that denied Plaintiff out-of-cell exercise. As a result of the lockdown, Plaintiff suffered from muscle cramps, stress, migraine headaches, constipation, stomach aches, heart burn, and thoughts of suicide.

         On March 1, 2009, Plaintiff submitted an appeal requesting access to the mini-concrete yards for out-of-cell exercise. On or about March 11, 2010, Defendant Perez denied Plaintiff's appeal. On or about March 20, 2010, Defendants Goss and Hernandez denied Plaintiff's second appeal. The appeal denial informed Plaintiff that Facility C did not have enough staff to monitor a group of inmates in the mini-concrete yards. The lockdown period ended on April 22, 2010.

         B. Statement of Undisputed Facts

         1. Plaintiff Bob Bejarano (Plaintiff) is a prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR). (First Am. Compl., ECF. No. 9.)

         2. Plaintiff alleges that Defendants were deliberately indifferent to his health by denying him outdoor exercise during a modified program that lasted approximately ten months at the California Substance Abuse Treatment Facility and Prison (SATF) in Corcoran, California, from June 22, 2009, to April 22, 2010. (Id. at pp. 4-7.)

         3. Facility C at SATF was placed on a “modified program” on June 22, 2009, because of a group disturbance that occurred between the Southern Hispanic and Northern Hispanic inmate population on June 21, 2009, at approximately 12:08 p.m. (Allison Decl. ¶ 2; Hernandez Decl. ¶ 2; Goss Decl. ¶ 2; Perez Decl. ¶ 2.)

         4. A modified program is colloquially referred to as a “lockdown, ” while the “group disturbance” could be described in layman's terms as an “inmate riot.” (Id.)

         5. Facility C at SATF was a Level IV general population unit that housed over 650 inmates during the period in question, June, 2009, through April, 2010.^[1] (Id. at ¶ 3.)

         6. These inmates typically have a history of violent and assaultive behavior and numerous convictions for rule violations within CDCR.^[2] (Id.)

         7. Many of the Facility C inmates were incarcerated for gang-related convictions or convictions under California's three-strikes law, and have prison sentences of life terms without parole or determinate sentences of fifty years or more. (Id.)

         8. Such inmates require an extremely higher level of security because they are a greater security threat than most other general population inmates. (Id.)

         9. Inmates often disrupt the safety and security of a facility such as Facility C by engaging in violent acts. (Id. at ¶ 4.)

         10. If an incident is a result of unrest among significant numbers of inmates or different groups of inmates, the warden may implement a lockdown or modified program under California Code of Regulations, title 15, section 3000. (Id.)

         11. During a modified program, the affected inmates' access to outdoor exercise, visiting, quarterly packages, and canteen may be limited or suspended until prison staff and administration can be reasonably certain that the violent acts will not continue. (Id.)

         12. A modified program can cover all of the facility's inmates, or may apply to only certain groups of inmates. (Id. at ¶ 5.)

         13. These “programming changes” are designed to protect inmates, staff, and the prison while officials investigate and attempt to determine how the inmates' customary privileges can be restored. (Id.)

         14. The modified program remains in effect until all searches, investigations, and interviews conducted in the aftermath of the disruptive incident are completed, and prison staff and administration determine that a return to normal programming can be safely achieved. (Id.)

         15. The objective of the modified program is to restore inmate privileges as soon as it is reasonably safe to do so. (Id. at ¶ 6.)

         16. In all instances, modified programs remain in place only as long as necessary to ensure the safety of the inmates and prison staff. (Id.)

         17. Modified programs are never meant to be punitive or otherwise implemented in bad faith. (Id.)

         18. During the modified program in question, and during modified programs in general at SATF, prison officials and administration met regularly with Defendant Allison to assess Facility C's conditions and determine whether the inmates could be safely returned to normal programing. (Id. at ¶ 7.)

         19. The SATF administration met to discuss the progress of the investigation, the status of the modified program, any further incidents of violence, and the development of a plan to resume normal programming. (Id.)

         20. Defendant Allison met with the Chief Deputy Warden, the Associate Warden, and the Captain of Facility C during these meetings. (Id. at ¶ 8.)

         21. The Facility Captain and Associate Warden reported information solicited from staff regarding inmates on Facility C. (Id.)

         22. The Facility Captain and Associate Warden could also make recommendations for changes in programming based on relevant intelligence and information collected during the course of the investigation. (Id.)

         23. The Facility Captain, Lieutenant Correctional Officers, and Associate Warden do not have any decision-making authority to make adjustments to or terminate the modified program. (Id.)

         24. That authority rested solely with Defendant Allison as the Warden of SATF. (Id.)

         25. During a modified program, the Facility Captain prepares a “program status report” detailing the implementation of the modified program, including the status of suspended privileges, searches and interviews, and the release process. (Id. at ¶ 9.)

         26. Program status reports also explain to the inmates how basic needs will be met during the modified program, such as medical care, feeding, showers, etc. (Id.)

         27. Program status reports must be approved by the Warden and remain in effect until a new report is issued. (Id.)

         28. The Facility Captain, Lieutenant, Correctional Officers, and Associate Warden never have authority to deviate from the restrictions imposed in the program-status-report matrix. (Id. at ¶ 10.)

         29. During a modified program that restricted access to the recreation yard, the Facility Captain, Lieutenant, Correctional Officers, and Associate Warden could not restore outdoor exercise for general population inmates without authorization from the Warden. (Id.)

         30. Defendants were familiar with the program-status reports used to implement and record information about the modified program implemented at SATF. (Id. at ¶ 11.)

         31. Program-status reports are prepared at or near the time of the acts, events, decisions, and conditions that they record. (Id. at ¶ 11.)

         32. Program-status reports are prepared by someone with knowledge of the information recorded in the program-status reports, or they are prepared from information transmitted by someone with knowledge of the information recorded in the program-status reports. (Id. at ¶ 11.)

         33. SATF maintained program-status reports in the regular course of business for this modified program, and the preparation of program-status reports is a regular practice associated with the implementation of modified programs. (Id. at ¶ 11.)

         34. A violent group disturbance occurred on Facility C at SATF on June 21, 2009, between the Southern Hispanic and Northern Hispanic inmate population. (Id. at ¶ 12.)

         35. It is well known within CDCR that Southern Hispanic inmates and Northern Hispanic inmates harbor tremendous enmity for each other, and violent incidents between the two groups are not uncommon within CDCR prisons. (Id.)

         36. The June 21, 2009 group disturbance occurred simultaneously on Facility C Yards 1 and 2, and in the dayrooms in Housing Units C4, C6, and C8. (Id. at ¶ 13.)

         37. The simultaneous incidents occurring in multiple locations of the facility showed that this disturbance was a long-planned and coordinated attack of a serious nature. (Id.)

         38. As a result of the incident, Defendant Allison authorized Facility C to be placed on a modified program to ensure the safety and security of the prison, the Facility, the inmates, the prison staff, and the community, until this incident could be investigated and it could be determined that another such incident would not occur if Facility C was returned to normal programing. (Id.)

         39. This incident was assigned log number SATF-03-09-05-0235. (Id.)

         40. A prison riot previously occurred on Facility C between Black and White inmates on July 25, 2008. (Id. at ¶ 14.)

         41. This incident resulted in a modified program and was assigned log number SATF-03-08-07-0293. (Id.)

         42. In light of the June 21, 2009, disturbance, and because of continuing concerns over inmate, staff, and Facility safety, the modified program with log number SATF-08-09- 05-0235 superseded the modified program implemented for incident number SATF-03-08-07-0293. (Id.)

         43. A total of seventy-five inmates were involved in the June 21, 2009 disturbance. (Id. at ¶ 15.)

         44. Three Black inmates were also identified as being involved in the incident and eleven Northern Hispanic inmates were treated at outside hospitals for injuries sustained during the melee. (Id.)

         45. The entire inmate population on Facility C was initially placed on modified program pending a facility-wide search and investigation. (Id.)

         46. Searches were conducted in all eight housing units, the program support areas, four dining halls, and two yards. (Id.)

         47. On June 30, 2009, another violent incident occurred on Facility C when a Southern Hispanic inmate assaulted a Black inmate during an escort to the medical clinic on the upper yard of Facility C. (Id. at ¶ 16.)

         48. This incident was assigned log number SATF-03-09-06-0252. (Id.)

         49. On July 8, 2009, the administration met to discuss this modified program. (Id. at ¶ 17.)

         50. It was decided to keep the entire Facility C inmate population on modified program pending the completion of inmate interviews, searches of the ...