Unpublished Disposition, 876 F.2d 896 (9th Cir. 1989)

MEMORANDUM^** 

Following Alvin L. Gilcrist's failure to respond to an order to show cause, the district court dismissed Gilcrist's pro se complaint for failure to state a cause of action. Gilcrist appeals. We reverse and remand.

* FACTS AND PROCEEDINGS

Gilcrist was an inmate at the Washington Correction Center and confined in that facility's Intensive Management Unit (IMU) at the time he filed his pro se complaint seeking compensatory and punitive damages as well as declaratory and injunctive relief. Gilcrist alleged violations of his eighth and fourteenth amendment rights arising out of conditions in the IMU, specifically (a) confinement with mentally deranged men and the resulting increased tension and noise levels; (b) 24-hour lighting; (c) lack of exercise equipment and opportunity to exercise; and (d) the use of food as a tool for punishment. Gilcrist further alleged that these conditions were not only known to appellees but were unreasonable and resulted in intentional and wanton infliction of pain and suffering.

Approximately one year after appellees answered the complaint, Gilcrist brought a motion to compel discovery. Appellees did not dispute the relevancy of the information sought but resisted on the basis of expense. Because the magistrate harbored considerable doubt regarding the merits of Gilcrist's claims, he denied the motion to compel discovery and ordered Gilcrist to show cause within sixty days why the action should not be dismissed for failure to state a claim. Gilcrist failed to respond and the district court ordered the case dismissed.

Notice of appeal was timely filed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).¹ 

II

ANALYSIS

Gilcrist contends that the complaint sufficiently stated claims upon which relief can be granted under the eighth and fourteenth amendments. We review the district court's dismissal of the complaint de novo. Karim-Panahi, 839 F.2d at 623.

In analyzing a pro se complaint in the context of a motion to dismiss, the court must liberally construe the document and treat all allegations as true. Estelle v. Gamble, 429 U.S. 97, 99, 106 (1976). See also Karim-Panahi, 839 F.2d at 623. " [A] complaint should only be dismissed ... if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

"To make out a cause of action under [42 U.S.C.] section 1983, [Gilcrist] must plead that (1) the defendants [were] acting under color of state law [and] (2) deprived [Gilcrist] of rights secured by the Constitution...." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1985), cert. denied, 479 U.S. 1054 (1987). To establish a cognizable claim under the eighth amendment, Gilcrist must allege conduct by the defendant(s) which is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society' ", Estelle, 429 U.S. at 102; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) or which involve "the 'unnecessary and wanton infliction of pain,' which includes those sanctions that are 'so totally without penological justification that it results in the gratuitous infliction of suffering.' " Hoptowit, 682 F.2d at 1246 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976)). Under the eighth amendment, conditions of confinement are cruel and unusual when they deprive an inmate of the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The "court [ ] must identify specific conditions [of confinement] that fail to meet Eighth Amendment requirements." Hoptowit, 682 F.2d at 1287. "We cannot rely on a vague conclusion that 'totality of conditions' violates the eighth amendment." Id. (citing Wright v. Rushen, 642 F.2d 1147 (9th Cir. 1987)). Therefore, we analyze each condition alleged in the complaint separately.

1. Confinement With Mentally Deranged Persons

Gilcrist alleges he was confined with mentally deranged persons who urinate, spread feces on walls and cause noise which results in high levels of frustration, anger and stress for Gilcrist and all inmates. The allegations of confinement with inmates who urinate and spread feces on walls, if true, allege conduct which is incompatible with evolving standards of decency and apparently unnecessary. Although we have our doubts about "noise" rising to the level of a constitutional violation, Gilcrist's allegations of daytime somnolency, liberally construed, can be interpreted as the result of deprivation of a minimal necessity of life, sleep. Combined with allegations that these conditions have resulted in Gilcrist's own psychological deterioration, and that prison officials engaged in this conduct without any legitimate penological purpose and with the intention of wantonly inflicting mental and psychological pain, Gilcrist has satisfied his burden of pleading. He has stated his sectin 1983 claim under the eighth amendment by alleging specific conduct by the defendants which is incompatible with evolving standards of decency and which allegedly involves the unnecessary and wanton infliction of psychological pain. See Estelle, 429 U.S. at 102, 103.

Gilcrist alleges that lights are left on in the IMU cells twenty-four hours each day and that this interferes with his normal sleeping patterns. Gilcrist further alleges that this "lights on" policy is the defendant's exaggerated response to security concerns and results in intentional and unreasonable pain and suffering.

Although the magistrate noted that 24-hour lighting may serve a clear role in security, his conclusion that this was done in this case for security reasons requires the consideration of facts which do not appear on the face of the complaint. The factual allegations of the complaint must be treated as true; conclusions based on circumstances not revealed by the complaint cannot support a motion to dismiss. See Fed. R. Civ. P. 12(b), 28 U.S.C.A. (as amended, 1987); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968); Wilfred v. California, 352 F.2d 474, 475-76 (9th Cir. 1965) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947)). Again, Gilcrist has alleged facts sufficient to state a cause of action under the eighth amendment. The allegations in the complaint, liberally construed, connote conduct by defendants which involves the unnecessary and wanton infliction of pain without any penological purpose.

3. Lack of Exercise Equipment and Exercise Opportunity

Gilcrist next alleges that he was not provided with proper access to exercise areas or equipment in the IMU. He alleges that he is allowed one hour each day for out-of-cell exercise in an area which contains no equipment. Gilcrist alleges that the lack of proper opportunities for meaningful exercise has resulted in unnecessary stress and tension and deterioration of his physical health. Gilcrist has failed to allege facts sufficient to elevate his claim of lack of opportunity for meaningful exercise to the level of a constitutional violation. Opportunity to exercise one hour each day is a sufficient opportunity for exercise. See Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); see also Washington Administrative Code 137-128-110(4) (d) (1986).

Gilcrist alleges that defendants authorized the use of food as punishment. Specifically, defendants authorized the use of a "nutraloaf" diet. Nutraloaf is alleged to be an unhealthy ground mass of food which looks like dog food. Gilcrist alleges that the prisoners who are placed on nutraloaf are not afforded the procedural protections required by the fourteenth amendment.

Gilcrist's claim is grounded on Washington Administrative Code ("WAC") 137-28-110 (1986), which states:

... (2) lowering the quantity or quality of food and deprivation of clothing, bedding, bed, or normal hygienic implements shall not be used as sanctions.

Gilcrist's allegations raise the question whether a state regulation prohibiting the lowering of the quality of prison food as punishment gives Gilcrist an "entitlement" protected by the due process clause. State regulations governing the administration of prisons may create a protected interest when the regulation is "unmistakenly mandatory." Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). " [A] state creates a protected ... interest by placing substantive limitations on official [conduct]." Olim v. Wacinekona, 461 U.S. 238, 249 (1983) cited in Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986).

The wording of WAC 137-28-110 leaves no room for doubt. The lowering of the quality of food as a sanction is not an option under the Washington prison system. Thus, Gilcrist has a protected interest established by Washington law. Gilcrist's allegations of deprivation of this interest without minimal procedural protections are sufficient to state a federal constitutional claim. Cf. Hewitt, 459 U.S. at 460 (inmate had protected interest in continuing to reside in the general prison population under the due process clause, which interest was created by state regulations governing the administration of state prisons).

CONCLUSION

The district court erred in dismissing Gilcrist's complaint. His allegations of confinement with mentally deranged persons, and 24-hour lighting, without any legitimate penalogical purpose and with the intention of wantonly inflicting mental and psychological pain, and the use of food as a tool for punishment, liberally construed and treated as true, are sufficient to establish viable claims under the eighth and fourteenth amendments. Gilcrist's remaining allegations concerning the lack of exercise equipment and an opportunity to exercise do not state claims under 42 U.S.C. § 1983.

REVERSED and REMANDED to the district court with directions to vacate the judgment dismissing the complaint.