ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on plaintiff's original complaint against defendant Warden Gary Swarthout on equal protection and due process claims for the defendant's implementation of two modified programs at California State Prison in Solano, California ("CSP-Solano").
Pending now are the parties' cross-motions for summary judgment. Plaintiff moves for summary judgment on the ground that there is no dispute of material fact as to either of his claims. Defendant moves for summary judgment on the grounds that (a) plaintiff failed to exhaust his administrative remedies as to the second modified program, (b) defendant did not violate plaintiff's constitutional rights, and (c) defendant is entitled to qualified immunity. Each of the motions is fully briefed and ready for disposition.
I. Plaintiff's Allegations
In the amended complaint, plaintiff, a White inmate, brings suit against Warden Swarthout for implementing two modified programs—the first in July 2010 and the second in February 2011—in response to separate incidents involving White inmates. Plaintiff was not involved in either of these incidents but was nonetheless subjected to the restrictions imposed on all White inmates. Per plaintiff, defendant's implementation of the modified programs violated plaintiff's "Eighth Amendment rights, and Fourteenth Amendment constitutional rights to due process and equal protection, ...." Compl. at 2 (ECF No. 1 at 7).
II. Relevant Procedural Background
Plaintiff initiated this action on October 23, 2013. (ECF No. 1.) Defendant filed an answer on December 15, 2014, and a Discovery and Scheduling Order ("DSO") issued on December 24, 2014. (ECF Nos. 18, 19.) Pursuant to the DSO, the discovery deadline was set for April 10, 2015, and the dispositive motion deadline was set for July 6, 2015.
On June 15, 2015, plaintiff filed a motion for summary judgment. (ECF No. 25.) Defendant filed a cross-motion for summary judgment on July 6, 2015. (ECF No. 27.) These motions are fully briefed.
III. Plaintiff's Discovery Motion
On March 5, 2015, plaintiff filed a motion to have his requests for admissions deemed admitted pursuant to Federal Rule of Civil Procedure 36(a) due to the defendant's failure to respond to those requests within thirty days. For the reasons set forth here, this motion will be denied.
Under Rule 36(a)(3), "A shorter or longer time for responding may be stipulated to under Rule 20 or be ordered by the court." Pursuant to this Rule, the December 24, 2014, DSO specifically extended the time period for a response: "Responses to written discovery requests shall be due forty-five days after the request is served." DSO at 4 ¶ 2. In addition, defendant was granted an extension of time on March 2, 2015, to respond to plaintiff's written discovery. (ECF No. 22.) Defendant's failure then to respond to plaintiff's requests for admissions within thirty days is excused both by the DSO and the Court's March 2, 2015, Order.
IV. Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies Related to the February 2011 Modified Program
A. Legal Standards
The Prison Litigation Reform Act ("PLRA") of 1995, requires that prisoners exhaust "such administrative remedies as are available" before commencing a suit challenging prison conditions." 42 U.S.C. § 1997e(a);
This statutory exhaustion requirement applies to all inmate suits about prison life,
The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion.
CDCR has an administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR's administrative remedy process prior to filing suit in federal court.
CDCR's administrative grievance process for non-medical appeals consists of three levels of review: (1) first level formal written appeals; (2) second level appeal to the Warden or designees; and (3) third level appeal to the Office of Appeals ("OOA"). Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach necessary supporting documentation, and submit the appeal within thirty days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b).
Defendant moves for summary judgment on plaintiff's claims related to the February 2011 modified program for failure to exhaust administrative remedies. In support, defendant submits evidence that, although such remedies were available to him, plaintiff did not initiate a new grievance concerning the February 2011 modified program. Instead, plaintiff merely supplemented the July 2010 grievance and submitted it directly to the Director's level of review. His concerns regarding the February 2011 modified program were dismissed after the decision noted that plaintiff had "added new issues and requests to his appeal. The additional requested action is not addressed herein as it is not appropriate to expand the appeal beyond the initial problem and the initially requested action." Decl. of M. Voong in Supp. of Def.'s MSJ Ex. B (ECF No. 27-5).
Plaintiff concedes that he did not file a separate grievance for the February 2011 modified program, claiming that he did not need to initiate a new grievance because he "had no legal requirement to file a separate appeal for an ongoing constitutional violation of discrimination ...." Pl.'s Reply at 7 (ECF No. 28). Notably, plaintiff does not claim that administrative remedies were unavailable to him.
While plaintiff invokes the ongoing violation doctrine, the Supreme Court recently reaffirmed a strict interpretation of the exhaustion requirement and clarified that there are only "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief."
In this case, plaintiff has not demonstrated that the administrative procedures were a dead end, were so opaque as to be incapable of use, or that prison officials thwarted his ability to file a grievance. In the absence of one of these circumstances, the undersigned will recommend that defendant's motion for summary judgment for failure to exhaust administrative remedies be granted as to plaintiff's claims related to the February 2011 modified program.
V. The Parties' Cross-Motions for Summary Judgment Related to the July 2010 Modified Program
A. Undisputed Facts
Plaintiff is an unaffiliated White inmate who, at all relevant times, was housed at CSP-Solano. Def.'s Statement of Undisputed Facts ("DSUF") 1-2. Defendant Swarthout, as the Warden of CSP-Solano, approved the Program Status Report at issue here: PSR No. SOL-July-11-10-027. DSUF 4.
1. Race, Prison Violence, and Modified Programs
a. Modified Program Overview
CSP-Solano is a Level III institution that houses violent felons. DSUF 5. At institutions like CSP-Solano, violence is a fact of life and can be directed at inmates or correctional staff. DSUF 5. In order to ensure the safety of all inmates after a serious incident, prison officials may modify or restrict program activities for some or all inmates by implementing a modified program affecting all or a portion of the inmate population. DSUF 8.
During a modified program, regular institutional programming is interrupted. DSUF 9. Affected inmates are not allowed out of their cells without being escorted. DSUF 9. Oftentimes, the escorts have further restrictions including additional mechanical restraints or additional officers. DSUF 9. All support programs for inmates, including educational programs, prison jobs, religious services, visitation, access to the law library, and group mental health, among others, may be restricted or unavailable. DSUF 9. These restrictions are continually evaluated and subsequently modified to allow access as soon as it is deemed safe to do so. DSUF 9.
b. Race as a Factor
Race (or ethnicity) is one of the factors that can cause violence. DSUF 6. Inmates often segregate themselves by race, and within the various racial groups of inmates there are sub-groups of gangs or disruptive groups, such as the White Skin Heads, Black Guerilla Family, Mexican Mafia, Southern Hispanics, Bloods, Crips, etc. DSUF 6. Even inmates who are not affiliated with a gang or disruptive group sometimes join in or sympathize with members of their racial group, and gang members often pressure unaffiliated inmates of the same race to participate in violent activities. DSUF 7. Additionally, incidents that begin without racial animus often evolve into racial conflict. DSUF 7. For instance, a fight between two inmates of different races that had nothing to do with race initially may erupt into a race riot. DSUF 7.
Under the California Department of Corrections and Rehabilitation's ("CDCR") policy at the time, inmates' race and ethnicity may also be one of the factors that could be considered in determining the scope of a modified program. DSUF 8. The lockdowns, however, are never based solely on race or ethnicity. DSUF 8. Rather, prison officials use a systematic process of elimination to rule out potential gang and/or disruptive groups, personal issues, and/or possible retaliation issues. DSUF 8. Unless prison staff receives information clearing an entire group, an individual inmate cannot be released from modified program without putting inmates and staff at risk of further violence. DSUF 8.
c. Investigation of Incidents
After a modified program is implemented, prison officials begin an investigation to determine when normal programming may be safely resumed. DSUF 10. The investigation includes (a) interviews of inmates and staff; (b) searches of yards, cells, common areas and other areas of the prison for evidence, weapons, and contraband; (c) review of video surveillance; and (d) a daily review by the Warden or his/her designee of the information collected. DSUF 10-11. In addition, the Warden or designee is required to provide weekly updates to his superiors regarding the prison's efforts to return to normal programming. DSUF 11.
The investigation process can be slow, time-consuming, and labor intensive. DSUF 15. Correctional staff are often diverted from other facilities to assist with escorts or conduct interviews and searches. DSUF 15. For this reason, modified programs drain manpower and stretch institutional resources. DSUF 15. Additionally, prison officials must meet constantly and thoroughly document all updates on a program status report, which imposes administrative burdens as well. DSUF 15.
d. Return to Normal Programming
One risk of prematurely lifting a modified program is further incidents of violence, including the loss of life. DSUF 16. Given the seriousness of this risk, caution is warranted and the gradual return to normal programming is recommended. DSUF 16. Striking the right balance between ensuring the safety and security of inmates, staff, and the institution on one hand, and returning inmates to normal programming and regular exercise as soon as safely possible on the other, is difficult. DSUF 16.
Once prison officials determine that it is safe to do so, inmates are gradually returned to normal programming in phases, beginning, for example, with the incremental restoration of specified program activities. DSUF 12. The determination to return to normal programming is made based on the totality of circumstances, including the absence of information indicating potential for further violence. DSUF 12. If an incremental release is successful, more inmates and privileges are restored until all the inmates' privileges are restored. DSUF 12.
Releasing inmates to the recreation yard creates the biggest security risk because large groups of inmates are able to congregate and interact in a less controlled area. DSUF 13. The number of inmates on a yard greatly outnumbers the correctional staff members assigned to monitor the area. DSUF 13. On the yard, inmates can commit assaults, communicate threats, plan illegal activities, and exchange or obtain weapons or contraband, that could result in injury or even death to inmates and staff. DSUF 13. Following a return to a normal program, violence is most likely to occur on an exercise yard. DSUF 13. Thus, among all of the programming activities that are suspended during a modified program, it is most difficult to determine when exercise programs can safely resume. DSUF 13.
Releasing one group at a time to the yard is not practical or efficient because of the limited staff available to supervise the inmates, especially when much of the staff resources are directed to cell searches and interviews because of the ongoing investigations. DSUF 14. Also, releasing one group of inmates to the yard at a time gave that group an opportunity to organize or coordinate further attacks. DSUF 14.
2. The July 2010 Modified Program
On July 11, 2010, a Black officer was found seriously injured on the main kitchen back dock between Facilities I and II. DSUF 18. The officer was found unconscious and appeared to have been assaulted. DSUF 18. The inmates working on the main kitchen back door were placed into administrative segregation pending investigation into their possible involvement. DSUF 18. Plaintiff submits an administrative grievance filed by an inmate witness who claimed that the officer provoked the attack, and that the attack involved only one inmate. Pl.'s Statement of Undisputed Facts 4 (ECF No. 25).
As a result of this incident, all inmates on Facilities I and II were placed on modified program pending further investigation. DSUF 18. This incident resulted in PSR No. SOL-July-11-10-027. DSUF 18.
Following an investigation, it was determined that two of the inmates who were working the back dock were White Skin Heads who assaulted the officer, and they were immediately transferred to another institution. DSUF 19. Although the perpetrators were identified, the cause of the assault had not yet been determined. DSUF 19. For example, it was not yet determined whether the incident was personal, gang-related, or racially-motivated, or whether it was the result of an ordered hit with additional staff potentially at risk. DSUF 19. Given these unknown factors, the severity of the assault, and that a Black officer was assaulted by White inmates, staff did not know whether further violence would occur due to tension between other White inmates and/or possible retaliation from Black inmates. DSUF 19. Therefore, in order to minimize the risk of further violence, the modified program was continued for all inmates on Facilities I and II pending further investigation. DSUF 19. This modified program affected a total of 1710 inmates, including 764 Black inmates, 278 White inmates, 358 Hispanic inmates, and 148 "Other" inmates. DSUF 19. Inmates on the other facilities, III and IV, were not placed on modified program. DSUF 20.
As a result of the modified program, various restrictions were instituted, including one-to-one restrained escorts, unclothed body searches prior to escorts, cell feeding, no visits, no inmate workers, no showers, no legal library, no dayroom activities, no recreation yard, no canteen, no packages, no phone calls, and no religious services. DSUF 22.
Warden Swarthout immediately ordered interviews to be conducted of the inmates working on the main kitchen back dock at the time of the event, of the officer who was hurt, and of inmates of different races on Facilities I and II. DSUF 21. Due to the direct involvement of two White inmates, the incident was determined to be "group related," as opposed to an isolated incident between two individual people, because at least two White inmates were determined to be involved in the staff assault. DSUF 21. This suggested that other White inmates were also possibly involved. DSUF 21.
On July 12, 2010, as investigations were ongoing, escorting for White inmates remained one-to-one but escorting for all other inmates was modified to five-to-one, meaning five inmates were escorted by only one officer. DSUF 23. This was because the attackers were identified as White inmates and based on the information received thus far, it was determined that White inmates posed a greater security threat. DSUF 23.
On July 14, 2010, all inmates with the exception of White inmates on Facilities I and II returned to normal programming. This was due because the investigation had revealed that the incident was confined to White inmates and did not involve inmates of other races. DSUF 24. By restricting those inmates who might initiate or be subjected to further violence, Warden Swarthout was trying to safeguard the safety and security of all inmates, staff, and the institution, while restricting the normal programming of the fewest number of inmates. DSUF 24. At this time, restrictions of the modified program were further eased to allow showers three days a week and to allow chaplains to make rounds within the housing units. DSUF 24.
On July 23, 2010, as investigations continued, restrictions of the modified program were further eased to allow limited legal library use for inmates with approved court deadlines. DSUF 25. On August 5, 2010, restrictions were further eased to allow inmates to resume normal programming within their housing units and normal feeding in the facility dining hall. DSUF 26. This gradual resumption of normal programming allowed staff the opportunity to observe inmate interaction and behavior in small groups and in a controlled setting. DSUF 26.
By August 12, 2010, all inmates returned to normal programming. DSUF 27. This modified program resulted in the denial of yard privileges to White inmates for approximately thirty days. DSUF 27.
A state of emergency requiring the approval of the Secretary or Secretary's designee is required when a lockdown of all housing units and sub-facilities within a facility is to exceed 24 hours, or a lockdown of fewer than all housing units and sub-facilities within a facility is to exceed 72 hours. DSUF 39. The July 2010 modified program complained of in this lawsuit did not meet the criteria for a State of Emergency because it was changed from affecting all inmates within a facility to less than all inmates within a facility within three days. DSUF 39.
B. Legal Standards
Summary judgment is appropriate when the moving party "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).
Under summary judgment practice, "[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "`the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"
"In evaluating the evidence to determine whether there is a genuine issue of fact, [the court] draw[s] all inferences supported by the evidence in favor of the non-moving party."
1. Equal Protection
Plaintiff first alleges that defendant violated his equal protection rights by subjecting plaintiff to a modified program based solely on his race.
"Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race."
Plaintiff moves for summary judgment and opposes defendant's cross-motion for summary judgment on the ground that race-based lockdowns violate a May 13, 2009, order issued from the Solano County Superior Court in
a. State Court Order
b. "Social Emergency"
Plaintiff next argues that defendant's consideration of race during the modified program was impermissible absent a "social emergency." This assertion appears to be based on a misreading of the following passage in
543 U.S. at 512-13.
The dispositive questions in this case are whether defendant's consideration of race during the July 2010 modified program advanced a compelling government interest and was narrowly tailored.
i. Compelling Government Interest
As to the first factor, defendant produced evidence that the modified program was based on legitimate prison goals of security and safety. The investigation into the July 2010 incident, in which a Black correctional officer was assaulted by White skin heads, raised concerns about race-based violence, including a coordinated attack by White inmates and/or a retaliatory attack by Black inmates. Further supporting defendant's concern about race-based violence was the involvement of more than one White inmate, again suggesting a coordinated attack. As a result, defendant subjected White inmates to the modified program pending further investigation.
Plaintiff maintains that there was no real threat following the July 11, 2010, incident, either by him specifically or White inmates in general. But even if defendant was ultimately mistaken about the cause of the incident or the number of White inmates who were involved in the assault on the Black officer, plaintiff has not refuted defendant's explanation for the decision to segregate.
Plaintiff also disputes defendant's claim that lockdowns are never based solely on race or ethnicity. He points to evidence suggesting that race was indeed the only factor considered by defendant in targeting White inmates, including the program status reports, the administrative responses to plaintiff's grievance, and defendant's statements in this litigation. Plaintiff, however, is suggesting once again that the defendant's use of race violated
ii. Narrowly Tailored
Likewise, defendant has met his burden of showing that the modified program was narrowly tailored to combat the threat of race-based violence. He submitted evidence that, as additional information was gathered, White inmates were slowly released, which allowed correctional staff to monitor the reintegration of White inmates in controlled settings. Once it was deemed safe to do so, all inmates were released from the modified program. Defendant has thus submitted adequate evidence that the modified program did not last longer than deemed necessary based on the risks.
Even though plaintiff may not have been involved in the incident nor an active member of any gang, defendant produced evidence that even non-affiliated inmates were at risk, such as during the reintegration attempts where non-affiliated White inmates were released with Black inmates. The result was inmate-on-inmate violence regardless of the gang affiliation or lack thereof. Plaintiff has submitted no evidence that he was held any longer than necessary, such as after the threat of racial violence had passed. He thus has not identified a genuine issue on the material question of whether the segregation was narrowly tailored to secure the safety of inmates and correctional staff. For these reasons, summary judgment is appropriate for defendant.
Plaintiff makes a related argument concerning defendant's alleged failure to comply with California Code of Regulations, tit. 15 § 3383, which directs that certain procedural requirements be met in a state of emergency. Pursuant to §3383(a),
Defendant rightly argues that this provision is inapplicable to plaintiff's claims since it relates to only these three instances, none of which was present in this case:
The July 2010 modified program did not include a lockdown "of all housing units" since it specifically excluded Facilities III and IV; "of fewer than all housing units" for more than 72 hours since the lockdown on Facilities I and II did not exceed 72 hours; or the suspension of a major program for more than 72 hours. Moreover, a violation of a prison regulation, which is not itself challenged as unconstitutional, does not provide a basis for liability.
2. Due Process
Insofar as plaintiff claims that he was denied due process before or during the lockdown, the Ninth Circuit Court of Appeals has made clear that prisoners are not entitled to such procedural due process rights if there is a state of emergency at the prison.
The Ninth Circuit rejected that argument, holding that the prisoners had no due process right to a hearing during their five-month lockdown in light of the state of emergency that had existed at the prison.
Although the Ninth Circuit decided
In considering defendant's motion for summary judgment with respect to plaintiff's due process claim, the court is required to believe plaintiff's evidence and draw all reasonable inferences from the facts before the court in his favor. Drawing all reasonable inferences from that evidence in plaintiff's favor, the court finds that plaintiff has failed to submit sufficient evidence to create a genuine issue of material fact with respect to his claim that he had a protected liberty interest in avoiding his challenged confinement. Specifically, plaintiff has failed to establish that he was subjected to anything more than modified, albeit harsher, programming.
Following the decision in
Prison officials also allowed Hispanic inmates assigned to the substance abuse program in Building 5 and age 35 and older (not plaintiffs) to return to normal privileges.
Relying on the Ninth Circuit's decision in
Another California district court has rejected a similar claim by Muslim inmates who maintained that prison officials denied them their right to due process when they implemented modified programming without providing the inmates advance notice or an opportunity for a hearing.
Similarly, in the present case the evidence fails to create a triable issue of fact with respect to whether defendant's decision to implement and continue the July 2010 modified program was warranted in light of the assault on a Black staff member by two White inmates.
Accordingly, for all of the reasons set forth above, the undersigned concludes that judgment should be entered for defendant on plaintiff's due process claim.
3. Outdoor Exercise
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution.
The Ninth Circuit has clarified the elements necessary to state a deprivation that rises to the level of an Eighth Amendment violation:
Outdoor exercise is a basic human need protected by the Eighth Amendment, and the denial of outdoor exercise may violate the Constitution, depending on the circumstances.
"[T]he Ninth Circuit has not identified a specific minimum amount of weekly exercise that must be afforded" under the Eighth Amendment.
The Ninth Circuit has distinguished between "temporary" denials of outdoor exercise and "long-term" denials. For a temporary denial of exercise to be actionable, plaintiff must demonstrate an adverse medical impact.
The facts in this case demonstrate that plaintiff was deprived of outdoor exercise for approximately 30 days during the July 2010 modified program. Plaintiff claims this denial violated his Eighth Amendment rights, though he does not claim that this deprivation resulted in an adverse medical impact. Even if this denial amounts to a long-term denial,
The Ninth Circuit has made clear that "prison officials are entitled to `wide-ranging deference' and that the courts must defer to prison officials' judgment as long as it does not manifest deliberate indifference or an intent to inflict harm."
Here, there is no evidence that defendant's decision to confine plaintiff to his cell without exercise was deliberately indifferent or intended to inflict harm. After a violent incident, defendant concluded that it was necessary to do so for the safety of staff and inmates. Plaintiff has provided no evidence to suggest that defendant's conclusion was in any way unreasonable or impermissible. There is no evidence that plaintiff's 30-day confinement "was in excess of what was required to restore order, was unrelated to the officials' security and safety responsibilities, and was kept in effect for a longer period than necessary."
In light of the above recommendations, the undersigned declines to consider defendant's alternative argument that he is entitled to qualified immunity. The undersigned also declines to consider additional claims asserted by plaintiff in his motion for summary judgment, which include loss of privacy in violation of the Fourth Amendment and denial of access to religious services in violation of the First Amendment. This is because these claims either cannot be fairly encompassed by the allegations asserted in the complaint or are already incorporated in the claims addressed herein.
Based on the foregoing, IT IS HEREBY ORDERED that plaintiff's motion to have matter deemed admitted (ECF No. 23) is denied; and
IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections.
Failure to file objections within the specified time may waive the right to appeal the District Court's order.