(PC) Gomez v. McDonald et al, No. 2:2011cv00649 - Document 94 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 09/14/15 ORDERING plaintiff's requests to exclude certain evidence 74 and 78 are denied. Plaintiff's request for judicial notice 79 is denied as unnec essary. Defendants' evidentiary objections [87-89] insofar as they are relevant to the court's disposition of the pending motion for summary judgment are overruled, and defendants' motion to strike 89 is denied. Also, RECOMMENDING that defendants' motion for summary judgment 86 be granted as follows: Defendants' motion for summary judgment on plaintiff's 14th amendment due process claims be granted; Defendants' motion for summary judgment on plaintiff 9;s Eighth Amendment claim based on the denial of outdoor exercise be granted on the basis of the affirmative defense of qualified immunity; Defendants' motion for summary judgment on plaintiff's Eighth Amendment claim based on his placemen t in a cold cell be granted; Plaintiff's Eighth Amendment claim based on defendants' alleged refusal to provide him with personal hygiene items be dismissed for failure to state a cognizable claim for relief. Plaintiff's motion for summary judgment 74 be denied; and this action be closed. Motions 74 and 86 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFREDO GOMEZ, 12 Plaintiff, 13 14 No. 2:11-cv-0649 KJM DAD P v. ORDER AND MIKE McDONALD et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 17 18 42 U.S.C. § 1983. This matter is before the court on the parties’ cross-motions for summary 19 judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the court will recommend that plaintiff’s motion for 20 21 summary judgment be denied, and defendants’ motion for summary judgment be granted. BACKGROUND 22 Plaintiff is proceeding on an amended complaint against defendants Davey, Domondon, 23 24 Gower, Sanders, and Van Leer. Therein, plaintiff alleges as follows. On October 6, 2009, 25 defendants placed him in a Single Cell Unit/Special Purpose Segregation Unit (“SCU/SPSU”) at 26 High Desert State Prison (HDSP) and retained him there for eight months because they believed 27 ///// 28 ///// 1 1 he was a member of the “Two-Five” prison group.1 While segregated, plaintiff alleges that 2 defendants refused to inform him of any disciplinary charges being brought against him or of 3 their reasons for holding him in segregation and did not provide him with an informal non- 4 adversary hearing to allow him to present his views. While plaintiff was held in segregation 5 defendants denied him outdoor exercise, forced him to stay in a cell in which the temperature 6 averaged only thirty-five (35) degrees, and refused to provide him with personal hygiene 7 necessities. On May 25, 2010, defendants asked plaintiff to sign a document stating that he had 8 no intention of participating in any “Two-Five” activities. Plaintiff signed the document, and two 9 days later, he was returned to the general population at the institution where he was incarcerated. 10 (Am. Compl. Attach. at 6-32.) At screening, the court found that plaintiff’s amended complaint appeared to state 11 12 cognizable claims for relief against defendants Davey, Domondon, Gower, Sanders, and Van 13 Leer for denial of plaintiff’s right to due process under the Fourteenth Amendment in connection 14 their alleged involvement in his placement and retention in an SCU/SPSU. In addition, the court 15 found that plaintiff’s amended complaint appeared to state a cognizable claim against defendants 16 Davey, Gower, and Van Leer for cruel and unusual punishment under the Eighth Amendment for 17 their alleged involvement in denying plaintiff outdoor exercise, placing him in a cold cell, and 18 refusing to provide him with personal hygiene items. (Doc. No. 9) 19 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 20 Summary judgment is appropriate when the moving party “shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). 23 Under summary judgment practice, the moving party “initially bears the burden of 24 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 25 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 26 27 28 1 Defendants refer to the “Two-Five” as a “group,” presumably die to the use of that term in the applicable regulations. The undersigned has attempted to adopt that characterization in these findings and recommendations. 2 1 The moving party may accomplish this by “citing to particular parts of materials in the record, 2 including depositions, documents, electronically store information, affidavits or declarations, 3 stipulations (including those made for purposes of the motion only), admission, interrogatory 4 answers, or other materials” or by showing that such materials “do not establish the absence or 5 presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to 6 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 7 When the non-moving party bears the burden of proof at trial, “the moving party need 8 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 9 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed. R. Civ. P. 56(c)(1)(B). 10 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 11 against a party who fails to make a showing sufficient to establish the existence of an element 12 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 13 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 14 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 15 circumstance, summary judgment should be granted, “so long as whatever is before the district 16 court demonstrates that the standard for entry of summary judgment, . . ., is satisfied.” Id. at 323. 17 If the moving party meets its initial responsibility, the burden then shifts to the opposing 18 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 19 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 20 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 21 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 22 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 23 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 24 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 25 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 26 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 27 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 28 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 3 1 In the endeavor to establish the existence of a factual dispute, the opposing party need not 2 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 3 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 4 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 5 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 6 Matsushita, 475 U.S. at 587 (citations omitted). 7 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 8 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 9 party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is 10 the opposing party’s obligation to produce a factual predicate from which the inference may be 11 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 12 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 13 party “must do more than simply show that there is some metaphysical doubt as to the material 14 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 15 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 16 omitted). 17 18 19 20 21 22 OTHER APPLICABLE LEGAL STANDARDS I. Civil Rights Act Pursuant to 42 U.S.C. § 1983 The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 23 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 26 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 27 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 28 omits to perform an act which he is legally required to do that causes the deprivation of which 4 1 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 2 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 3 their employees under a theory of respondeat superior and, therefore, when a named defendant 4 holds a supervisorial position, the causal link between him and the claimed constitutional 5 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 6 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 7 concerning the involvement of official personnel in civil rights violations are not sufficient. See 8 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 9 II. The Fourteenth Amendment 10 The United States Supreme Court has held that the procedural protections guaranteed by 11 the Fourteenth Amendment Due Process Clause only apply when a constitutionally protected 12 liberty or property interest is at stake. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see 13 also Marsh v. County of San Diego, 680 F.3d 1148, 1155 (9th Cir. 2012); Brittain v. Hansen, 451 14 F.3d 982, 999-1000 (9th Cir. 2006). The Due Process Clause itself does not give prisoners a 15 liberty interest in avoiding transfer to more adverse conditions of confinement. See Meachum v. 16 Fano, 427 U.S. 215, 225 (1976). However, states may create liberty interests which are protected 17 by the Due Process Clause. These circumstances generally involve a change in condition of 18 confinement that imposes an “atypical and significant hardship on the inmate in relation to the 19 ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). 20 III. The Eighth Amendment 21 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 22 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. 23 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to 24 prevail on a cruel and unusual punishment claim, a prisoner must prove that objectively he 25 suffered a sufficiently serious deprivation and that subjectively prison officials acted with 26 deliberate indifference in allowing or causing the deprivation to occur. See Farmer v. Brennan, 27 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 28 ///// 5 1 IV. Qualified Immunity 2 Government officials enjoy qualified immunity from civil damages unless their conduct 3 violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 4 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is 5 presented with a qualified immunity defense, the central questions for the court are: (1) whether 6 the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the 7 defendant’s conduct violated a statutory or constitutional right; and (2) whether the right at issue 8 was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court has 9 held that “while the sequence set forth there is often appropriate, it should no longer be regarded 10 as mandatory.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this regard, if a court decides 11 that plaintiff’s allegations do not make out a statutory or constitutional violation, “there is no 12 necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. 13 Likewise, if a court determines that the right at issue was not clearly established at the time of the 14 defendant’s alleged misconduct, the court may end further inquiries concerning qualified 15 immunity at that point without determining whether the allegations in fact make out a statutory or 16 constitutional violation. Pearson, 555 U.S. at 236-242. “A government official’s conduct violate[s] clearly established law when, at the time of 17 18 the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable 19 official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 20 563 U.S. 731, ___, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635 21 (1987)). In this regard, “existing precedent must have placed the statutory or constitutional 22 question beyond debate.” Id. See also Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) 23 (“The proper inquiry focuses on . . . whether the state of the law [at the relevant time] gave ‘fair 24 warning’ to the officials that their conduct was unconstitutional.”) (quoting Saucier, 533 U.S. at 25 202). The inquiry must be undertaken in light of the specific context of the particular case. 26 Saucier, 533 U.S. at 201. Because qualified immunity is an affirmative defense, the burden of 27 proof initially lies with the official asserting the defense. See Harlow, 457 U.S. at 812. 28 ///// 6 1 PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS AND EVIDENCE2 2 Plaintiff has submitted a statement of undisputed facts supported by declarations signed 3 under penalty of perjury by plaintiff and several of his fellow inmates. That statement of 4 undisputed facts is also supported by citations to plaintiff’s amended complaint, California 5 Department of Corrections and Rehabilitation (“CDCR”) and prison memoranda and program 6 status reports from September 21, 2009, through June 8, 2010, administrative appeals and prison 7 officials responses thereto, miscellaneous documents from plaintiff’s central file, and defendants’ 8 responses to plaintiff’s discovery requests. The evidence submitted by the plaintiff in support of 9 the pending motion for summary judgment establishes the following. 10 1. Prison officials justified plaintiff’s removal from the Sensitive Needs Yard on October 11 6, 2009, based on his alleged membership, association, or ties with the “Two-Five” 12 group and to ensure the safety and security of the institution. Prison officials also 13 sought to investigate and identify substantiating evidence of plaintiff’s affiliation with 14 gang activities because they suspected he was involved in gang activity or 15 participating in the promotion of violence on High Desert State Prison’s (“HDSP’s”) 16 Facility B, including the attempted murder of other inmates on September 17, 2009, 17 attacks on child molesters or rapists, and assaults and threats on staff and inmates. 18 (Pl.’s Exs. A & B.) 19 2. In his amended complaint, plaintiff is challenging the fact that while he was housed at 20 HDSP, Facility B, Building 2, between October 6, 2009, through May 26, 2010, prison 21 officials denied him procedural due process, outdoor exercise, warmth while in a cold 22 cell, and hygiene items. (Am. Compl. ¶¶ 20 & 66.) 23 3. Certain California regulations create a liberty interest in not arbitrarily subjecting an 24 inmate to administrative and disciplinary segregation. See Toussaint v. McCarthy, 25 801 F.2d 1080 (9th Cir. 1986); Madrid v. Gomez, 889 F. Supp. 1146, 1271 (N.D. Cal. 26 27 28 2 The court has reviewed plaintiff’s proposed statement of undisputed facts in its entirety. The court has omitted reference to certain of plaintiff’s proposed facts that are immaterial to resolution of the parties’ motions for summary judgment, unsupported by admissible evidence, and/or redundant. 7 1 2 3 4 1995). 4. On October 31, 2003, plaintiff’s work-group/privilege status was upgraded from A2-B to A1-A. (Gomez Decl. ¶ 6.) 5. At no point between September 17, 2009, and May 26, 2010, was plaintiff’s A1-A 5 status formally denied, modified, or temporarily suspended by a disciplinary officer or 6 by a classification. (Gomez Decl. ¶ 7.) 7 6. Between October 31, 2003, and October 5, 2009, plaintiff’s A-1A status allowed him 8 phone calls, outdoor exercise, and dayroom, visiting, and canteen privileges. It also 9 allowed him shower, personal hygiene, and dining hall privileges. (Gomez Decl. ¶¶ 8 10 & 9.) 11 7. While housed at California State Prison-Los Angeles County in Lancaster, between 12 approximately January 2003-December 2006; Richard J. Donovan-Correctional 13 Facility in San Diego between approximately December 2006, and February 4, 2008; 14 and HDSP in Susanville between February 6, 2008, and October 25, 2010, Gomez 15 personally experienced multiple conditions which officials characterized as lockdowns 16 during which officials at each of those prisons never: 17 a. confiscated Gomez’s hygiene items. (Gomez Decl. ¶ 10a.); 18 b. confiscated any of Gomez’s linens. (Gomez Decl. ¶ 10b.); 19 c. confiscated any of Gomez’s personal and state-issued clothing. (Gomez Decl. ¶ 20 10c.); 21 d. confiscated any of Gomez’s personal property. (Gomez Decl. ¶ 10d.); 22 e. prohibited Gomez from having verbal and written communication with other 23 inmates. (Gomez Decl. ¶ 10e.); 24 f. personally accused Gomez of multiple acts of serious misconduct. (Gomez 25 Decl. ¶ 10f.); 26 g. personally accused Gomez of being a member and/or an associate of the “Two- 27 Five” group. (Gomez Decl. ¶ 10g.) 28 8. Only while housed at HDSP did Gomez personally experience for the first time 8 1 multiple conditions which officials there characterized as a modified program in which 2 HDSP officials: 3 a. confiscated Gomez’s hygiene items. (Gomez Decl. ¶ 12a.); 4 b. confiscated Gomez’s linens. (Gomez Decl. ¶ 12b.); 5 c. confiscated Gomez’s personal and state-issued clothing. (Gomez Decl. ¶ 12c.); 6 d. confiscated Gomez’s personal property. (Gomez Decl. ¶ 12d.); 7 e. prohibited Gomez from having verbal and written communication with other 8 inmates. (Gomez Decl. ¶ 12e.); 9 f. personally accused Gomez of multiple acts of serious misconduct. (Gomez 10 Decl. ¶ 12f.); 11 g. personally accused Gomez of being a member and/or associate of the “Two- 12 Five” group. (Gomez Decl. ¶ 12g.) 13 9. Between February 6, 2008, and October 25, 2010, Gomez was never afforded a 14 disciplinary hearing or found guilty of a prison disciplinary infraction. He was also 15 never informed of any disciplinary findings or disposition, or of a right to appeal any 16 disciplinary findings or disposition. (Gomez Decl. ¶ 13.) 17 10. Gomez was never personally interviewed by the Institution Gang Investigator (“IGI”), 18 or designee, or given an opportunity to be heard in regards to the source items relied 19 upon by officials, which allegedly indicate Gomez’s membership or association with 20 the “Two-Five” group. (Gomez Decl. ¶ 14.) 21 22 23 11. Gomez is currently not and has never been a member or an associate of the “TwoFive” group. (Gomez Decl. ¶ 16.) 12. Between October 6, 2009, and May 25, 2010, while housed at HDSP, Facility B, 24 Building 2, plaintiff did not get any phone calls, outdoor exercise, or dayroom, 25 visiting, and canteen privileges. He also was not allowed to report to his prison job 26 assignment, possess personal property (from October 6, 2009, through November 20, 27 2009), possess state-issued clothing (from October 6, 2009, through November 20, 28 2009), or possess personal hygiene items (from October 6, 2009, through October 10, 9 1 2009). Plaintiff did not have access to the dining hall or daily showers and was not 2 allowed to speak to other inmates who were not alleged “Two-Five” members or 3 affiliates. Plaintiff did not receive notice of the rules of the SCU/SPSU or an initial 4 assessment and training plan for his placement and was not released from that unit 5 within ninety days of his initial placement. Plaintiff also did not receive periodic 6 classification committee review or a psychological evaluation after thirty days. 7 Plaintiff was not released from the SCU/SPSU Unit until HDSP officials believed he 8 should be released and afforded an opportunity to sign an Unlock Chrono. (Gomez 9 Decl. ¶ 26.) 10 13. Between Tuesday, October 6, 2009, at approximately 9:30 a.m. through approximately 11 1:30 p.m., Gomez continuously remained with his hands hand-cuffed behind his back 12 and was only allowed to wear, and remained wearing, his underwear and sandals 13 throughout such time. (Gomez Decl. ¶¶ 18a, 19a, 20b & 21d.) 14 14. When Gomez was housed in Facility B, Building 2, in “C” section, cell 246 on 15 October 6, 2009, that cell was completely bare except for two mattresses. (Gomez 16 Decl. ¶ 21e.) 17 15. According to plaintiff, the inside and outside cell walls at HDSP, Facility B, Building 18 2, cell 246 consist of thick concrete and have no insulation. (Gomez Decl. ¶ 21j.) 19 16. Pursuant to state-wide policy for California prisons: “[w]henever possible, building 20 operators shall operate and adjust controls to get optimum advantage from outside 21 temperatures for meeting cooling demand (e.g., using outside air economizers and 22 night flush cycles).” (Defs.’ Ex. P ¶ 1.) 23 17. Between October 6, 2009, and November 20, 2009, the outside temperatures at HDSP, 24 averaged a maximum of fifty-seven (57) degrees and a minimum of thirty-one (31) 25 degrees. (Pl.’s Ex. D.) 26 18. Between October 6, 2009, and November 20, 2009, the concrete cell walls maintained 27 the cells at HDSP, Facility B, Building 2 consistently cold. (Gomez Decl. ¶¶ 24b, 28.) 28 19. On the first day plaintiff arrived at HDSP on February 6, 2008, he was issued what is 10 1 commonly referred as a “fish-kit” or “fish-roll” which among other things, included 2 sanitary hygiene items such as one roll of toilet paper and one bar of soap. On the 3 same day, prison officials also issued him clothing and linen. (Gomez Decl. ¶¶ 17, 25 4 & 36.) 5 20. While housed at HDSP, plaintiff continued to be re-issued one bar of soap and one roll 6 of toilet paper once a week on every Saturday morning. (Gomez Decl. ¶ 36.) 7 21. At no point from Tuesday, October 6, 2009, at approximately 1:30 p.m., through 8 Saturday, October 10, 2009, at approximately 7:42 a.m., was plaintiff issued toilet 9 paper and soap. (Gomez Decl. ¶¶ 21 e, f, g, h & 23 c.) 10 22. Between October 20, 2009, and March 8, 2010, defendant Van Leer had knowledge 11 that plaintiff and other similarly segregated inmates in HDSP, Facility B, Building 2 12 were not receiving any form of outdoor exercise. During such times, Van Leer was 13 drafting recommendations to initially prohibit and thereafter continue to prohibit 14 inmates identified as having participated in gang-related activities from receiving all 15 outdoor exercise. (Pl.’s Ex. A at 28-30, 41-43, 44-46, 47-49, 54-56, 57-59, 60-62, 63- 16 65, & 66-68.) 17 23. Van Leer personally attended an Inmate Advisory Council (“IAC”) meeting on 18 December 24, 2009. During the meeting, Van Leer was provided with notice from 19 IAC members that those inmates segregated in Facility B, Building 2, such as plaintiff, 20 were not receiving any outdoor exercise. IAC members were then informed by Van 21 Leer that plaintiff and other similarly segregated inmates would not receive any 22 outdoor exercise until the conclusion of the investigation, which had no specific end 23 date. With respect to plaintiff, that investigation concluded on May 17, 2010, but 24 plaintiff was not released from his confinement until May 26, 2010. (Defs.’ Exs. N & 25 O, Defs.’ SUDF 180-188.) 26 24. On October 6, 2009, defendants Gower, Davey, and Van Leer were all personally 27 present and witnessed inmates, including plaintiff, wearing only their underwear and 28 sandals from the time they had been removed from their regular General Population 11 1 cell to the time they were re-housed in Facility B, Building 2. (Gomez Decl. ¶¶ 19 b, 2 c, d; and 20c.) 3 25. On October 6, 2009, defendants Gower, Davey, and Van Leer were tasked with 4 overseeing and supervising the segregation of plaintiff and other similarly situated 5 inmates. (Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery and Scheduling Order, 6 Ex. E (Defendant Gower’s Response to Pl.’s Interrogatories, Set 1, Nos. 11 & 13, 7 defendant Davey’s Response to Pl.’s Interrogatories, Set 1, Nos. 1-2, defendant Van 8 Leer’s Response to Pl.’s Interrogatories, Set 1, Nos. 1 & 2.)) 9 26. Between October 6, 2009, and May 25, 2010, the concrete yard located at HDSP, 10 Facility B, adjacent to Building 2 was not being made available for use to any inmate. 11 (Gomez Decl. ¶¶ 29, 30.) 12 27. The concrete yard adjacent to Building 2, consists of two yards, both of which have 13 been previously used to safely afford outdoor exercise to approximately 30-100 14 inmates at one time. (Toledo Decl. ¶¶ 5, 7 & 14.) 15 28. According to inmate Toledo, prior to October 6, 2009, inmates on Facility B who were 16 classified as C-status were afforded access to the concrete yard during the non- 17 programing hours of other GP-SNY inmates, i.e., Monday through Friday, from 1 p.m. 18 - 2 p.m. (Toledo Decl., ¶¶ 15 & 16.) 19 29. According to inmate Toledo, between 2001 and 2003, when he was on the concrete 20 yard adjacent to Building 2, he saw two correctional officers and surveillance cameras 21 supervising the yards with approximately thirty inmates on each yard. Such officers 22 had lethal and non-lethal weapons necessary to protect any inmates from assault. 23 (Toledo Decl. ¶¶ 5-6 & 15) 24 30. Between October 6, 2009, and May 26, 2010, only two correctional officers were 25 required to safely escort segregated inmates such as plaintiff, to medical, law library, 26 and visiting appointments. (Gomez Decl. ¶ 31.) 27 28 31. Between approximately September 17, 2009, and October 6, 2009, all inmates at HDSP, Facility B, including plaintiff were on modified program and confined to their 12 1 cells 24-hours a day. (Pl.’s Ex. A at A1 & A28.) 2 32. From October 6, 2009, through October 20, 2009, inmates at HDSP, Facility B who 3 were not alleged “Two-Five” members or associates, were confined to their cells for 4 24-hours a day. (Pl.’s Ex. A at A34.) 5 33. From October 20, 2009, through October 24, 2009, inmates at HDSP, Facility B, who 6 were not alleged “Two-Five” members or associates, were not on modified program 7 and allowed normal programing. (Pl.’s Ex. A at A29 & A34.) 8 34. On October 24, 2009, inmates at HDSP, Facility B, who were not alleged “Two-Five” 9 members or associates, were placed on “suspended program.” (Pl.’s Ex. A at A31.) 10 35. Starting October 26, 2009, inmates at HDSP, Facility B who were not alleged “Two- 11 Five” members or associates were on modified program and confined to their cells for 12 24-hours a day. (Pl.’s Ex. A at A34.) 13 36. On November 24, 2009, inmates (excluding plaintiff) housed in the Gymnasium at 14 HDSP, Facility B, and approximately twelve to fifteen inmates randomly housed in 15 Buildings 1 through 5 in Facility B and who were considered critical workers, were 16 afforded limited access to outdoor exercise in the Facility B main exercise yard. (Pl.’s 17 Ex. A at A40.) 18 37. Starting December 1, 2009, inmates at HDSP, Facility B, who were not alleged “Two- 19 Five” members or associates were afforded limited programing as part of Phase-1 of 20 the modified program. (Pl.’s Ex. A at A41.) 21 38. Starting December 14, 2009, inmates at HDSP, Facility B, who were not alleged 22 “Two-Five” members or associates were afforded limited programing as part of Phase- 23 2 of the modified program. (Pl.’s Ex. A at A40 & A47.) 24 39. Starting December 28, 2009, inmates at HDSP, Facility B, who were not alleged 25 “Two-Five” members or associates were afforded limited programing as part of Phase- 26 3 of the modified program. (Pl.’s Ex. A at A47.) 27 28 40. Starting January 7, 2010, inmates at HDSP, Facility B, who were not alleged “TwoFive” members or associates were confined to their cells for 24-hours a day. (Pl.’s Ex. 13 1 2 A at 52.) 41. Starting February 9, 2010, inmates at HDSP, Facility B, who were not alleged “Two- 3 Five” members or associates were afforded limited programing as part of a re-instated 4 Phase-2 of the modified program. (Pl.’s Ex. A at A54 & A57.) 5 42. Starting February 22, 2010, inmates at HDSP, Facility B, who were not alleged “Two- 6 Five” members or associates were afforded limited programing as part of a re- 7 instated/amended Phase-3 of the modified program. (Pl.’s Ex. A at A57.) 8 43. Starting February 28, 2010, all inmates in HDSP, Facility B, who were not alleged 9 “Two-Five” members or associates, were confined to their cells for 24-hours a day. 10 (Pl.’s Ex. A at 63.) 11 44. Starting March 2, 2010, all inmates at HDSP, Facility B, who were not alleged “Two- 12 Five” members or associates were afforded limited programing as part of an amended 13 Phase-3 of the modified program. (Pl.’s Ex. A at A66.) 14 45. Starting March 9, 2010, all inmates who were not alleged “Two-Five” members or 15 associates were afforded limited programing as part of Phase-4 of the modified 16 program. (Pl.’s Ex. A at A66.) 17 18 46. After June 9, 2010, all inmates at HDSP, Facility B (which included plaintiff) were placed on normal programming. (Pl.’s Ex. A at A21 & A78.) 19 47. Between October 6, 2009, and May 26, 2010, similarly segregated inmates who were 20 confined at HDSP, Facility B, Building 2, first housed in “C” section and later in “A” 21 section, could communicate with each other through the ventilation duct system, cell 22 doors, during escorts to, from, and while inside the law library, medical and visiting, 23 including through a written form commonly referred to as “fishing” in which the 24 written communication is passed from cell to cell via a string line through the bottom 25 of the cell door. (Gomez Decl. ¶ 32.) 26 48. Since plaintiff’s incarceration in September 24, 2002, to the present, he has never been 27 validated as either a member or associate of the “Two-Five” group pursuant to the 28 procedures in 15 CCR § 3378(a)-(h). (Gomez Decl. ¶¶ 1 & 33.) 14 1 49. Since plaintiff’s incarceration in September 24, 2002, to the present, he has never been 2 issued a Rules Violation Report as defined in 15 CCR § 3312(a) (3). (Gomez Decl. ¶¶ 3 1 & 34.) 4 50. Between September 17, 2009, and June 9, 2010, no state of emergency was declared at 5 HDSP, Facility B. (Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery & Scheduling 6 Order, Ex. E (Defendant Gower’s Response to Plaintiff’s Request for Admission No. 7 1.)) 8 9 10 51. On October 6, 2009, as correctional officers were searching and inventorying the property of plaintiff and other similarly segregated inmates, such property was being placed inside transparent garbage bags. (Gomez Decl. ¶ 20g.) 11 52. On October 6, 2009, as plaintiff and other similarly segregated inmates were inside the 12 Facility B dining hall, several correctional officers were randomly walking into the 13 dining hall and asking several inmates (who had been removed from Buildings 1 14 through 5) to review and sign a CDC 1083 Inmate Property Inventory form. Plaintiff 15 was not approached by any officer regarding the review and singing of a CDC 1083 16 Inmate Property Inventory form. (Gomez Decl. ¶ 20 e, f.) 17 53. On October 6, 2009, at approximately 1:30 p.m., plaintiff was physically escorted 18 from the Facility B dining hall to his new housing at HDSP, Facility B, Building 2, 19 cell 246. (Gomez Decl. ¶ 21.) 20 21 54. According to plaintiff, Buildings 2 and 3 at HDSP, Facility B are only separated from each other by a distance of approximately 15 feet. (Gomez Decl. ¶ 35.) 22 55. According to plaintiff, Buildings 1 through 5 at HDSP, Facility B, are separated by a 23 minimum of approximately 200 feet from the Facility B dining hall. (Building-1 24 being the closest to the dining hall and Building 5 being the farthest.) (Gomez Decl. ¶ 25 35.) 26 56. Between October 6, 2009, and May 26, 2010, defendant Sanders had a duty to assist 27 plaintiff by: (a) collecting and evaluating social data on Gomez; (b) collecting and 28 evaluating behavioral data on Gomez; (c) evaluating Gomez’s adjustment to an 15 1 assigned program; (d) preparing a CDC Form 812-A, Notice of Critical Information - 2 Prison Gang Information; (e) preparing classification chromos; (f) preparing Gomez’s 3 central File (C-File) for legal reviews; and (g) attending Gomez’s classification 4 committee hearings. (Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery & 5 Scheduling Order, Ex. E (Defendant Sanders’ Responses to Request for Admission 6 Nos. 4-6, 8, 9-10.)) 7 57. Between March 2010 and May 26, 2010, defendant Domondon had a duty to assist 8 Gomez by: (a) collecting and evaluating social data on Gomez; (b) collecting and 9 evaluating behavioral data on Gomez; (c) evaluating Gomez’s adjustment to an 10 assigned program; (d) preparing CDC Form 812-A, Notice of Critical Information - 11 Prison Gang Information; (e) preparing classification chronos; (f) preparing Gomez’s 12 Central File (C-File) for legal reviews; and (g) attending Gomez’s classification 13 committee hearings. (Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery & 14 Scheduling Order, Ex. E (Defendant Domondon’s Responses to Request for 15 Admission Nos. 2-4, 6-8.)) 16 58. Warden McDonald and defendants Gower, Davey, Van Leer, and Domondon have 17 characterized the “Two-Five” as a “Disruptive Group 1”, “Disruptive Group”, and/or 18 “group.” (McDonald Decl. ¶ 2; Gower Decl. ¶ 2; Davey Decl. ¶ 2; Van Leer Decl. ¶ 19 3; Domondon Decl. ¶¶ 19, 21; Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery & 20 Scheduling Order, Ex. E (Defendant Sanders’ Responses to Plaintiff’s Interrogatories, 21 Set 2, No. 4.)) 22 59. Warden McDonald has sworn under oath that, during the relevant time period, the 23 “Two-Five” was not designated a disruptive group. (McDonald Decl. ¶¶ 7, 8 & 9.) 24 60. Warden McDonald and defendant Davey have both sworn under oath, that during the 25 relevant times, the “Two-Five” group was not designated a “prison gang.” (Defs.’ 26 Opp’n to Pl.’s Mot. to Modify the Discovery & Scheduling Order, Ex. E (McDonald 27 Dec1. ¶¶ 7, 8 & 9; Defendant Davey’s Response to Plaintiff’s Requests for Admission 28 Nos. 5 & 16.)) 16 1 61. Warden McDonald and defendant Davey have both sworn under oath that as of an 2 unspecified date to the present, the “Two-Five” was designated as a “Security Threat 3 Group II.” (McDonald Dec1. ¶ 9; Defs.’ Opp’n to Pl.’s Mot. to Modify the Discovery 4 & Scheduling Order, Ex. E (Defendant Davey’s Response to Plaintiff’s Requests for 5 Admission No. 16.)) 6 62. Gomez was not provided with the confidential information identified in defendants’ 7 Statement of Undisputed Facts 114 via a CDC Form 1030, Confidential Information 8 Disclosure Form. (Gomez Decl. ¶ 44.) 9 63. Gomez was not provided with written notice at least 24-hours in advance of an 10 interview with the IGI or designee with respect to the confidential information 11 identified in defendants’ Statement of Undisputed Facts 114. (Gomez Decl. ¶ 45.) 12 13 14 15 16 17 64. Cells 246 and 150 in HDSP, Facility B, Building 2 are located in the “C” section of the building. (Lopez Decl. ¶¶ 2 & 3.) 65. Cells 246 and 150 are located a distance of approximately 10 feet from each other. (Gomez Decl. ¶ 47.) 66. The bottom-half work order submitted with defendants’ evidence contains a section for Resolution that is completely blank. (Defs.’ Ex. Q.) 18 67. The ventilation ducts in HDSP, Facility B, Building 2, “C” section, which consist of 19 cells 135-150 and 235-250 are connected to one air conditioning unit located on the 20 roof immediately above “C” section of the building. (Gomez Decl. ¶ 48.) 21 68. The supply of air to the control booth in HDSP, Facility B, Building 2 is supplied by 22 one small air conditioning unit which is located on the roof immediately above the 23 control booth. (Gomez Decl., ¶ 48.) 24 69. The air inside the cells in HDSP, Facility B, Building 2 is supplied by three separate 25 air conditioning units. One unit supplies air to “A” section which consists of cells 26 101-117 and 201-217. The second unit supplies air to “B” section which consists of 27 cells 118-134 and 218-234. And the third unit supplies air to “C” section which 28 consists of cells 135-150 and 235-250. (Gomez Decl. ¶ 48.) 17 1 DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND EVIDENCE3 2 Defense counsel has submitted a statement of undisputed facts supported by declarations 3 signed under penalty of perjury by Retired Warden McDonald as well as defendants Davey, 4 Gower, Van Leer, Sanders, and Domondon. That statement of undisputed facts is also supported 5 by citations to plaintiff’s amended complaint, confidential (sealed) prison memoranda and prison 6 program status reports from the time period September 21, 2009, through May 25, 2010, a 7 confidential (sealed) memorandum identifying plaintiff as a member of the “Two-Five” group, a 8 copy of plaintiff’s unlock agreement, various daily log reports, an IAC memorandum, and 9 plaintiff’s prison housing/movement sheet. That statement of undisputed facts is also supported 10 by HDSP Work Orders and heating logs for the relevant time period. The evidence submitted by 11 the defendants in support of the pending motion for summary judgment establishes the following. 12 I. PARTIES AND RELEVANT WITNESSES 13 A. Plaintiff Alfredo Gomez (T-68620) 14 1. Plaintiff Alfredo Gomez is an inmate in the custody of CDCR. (Pl.’s Am. Compl.) 15 2. At the relevant times, Gomez was housed at HDSP in Susanville, California, where 16 the events at issue took place. (Pl.’s Am. Compl. at ¶ 9.) 17 B. (Ret.) Warden McDonald – Non Party 18 3. (Ret.) Warden McDonald was employed by CDCR as Acting Warden of HDSP from 19 December 2008, through December 2010, at which time he was named the warden. 20 He served as warden until his retirement in December 2012. (McDonald Decl. ¶ 1.) 21 4. Warden McDonald alone, or his designee, had the authority to begin and end a 22 modified program, or to adjust its terms once implemented. (McDonald Decl. ¶ 10.) 23 5. With respect to the modified program implemented on September 18, 2009 (the “Two- 24 Five” Modified Program), Warden McDonald did not have a designee and maintained 25 sole authority to begin, adjust, and end it. (McDonald Decl. ¶¶ 3, 11.) 26 27 28 3 The court has reviewed defendants’ proposed statement of undisputed facts in its entirety. The court has omitted reference to certain of defendants’ proposed facts that are immaterial to resolution of the parties’ motions for summary judgment, unsupported by admissible evidence, and/or redundant. 18 1 2 3 6. Warden McDonald was not personally involved in conducting the investigation into the incidents that triggered the modified program at issue. (McDonald Decl. ¶ 12.) 7. Instead, Warden McDonald relied upon the investigations, analysis, and opinions of 4 his staff. This information included, but was not limited to, the status of any ongoing 5 investigations, the evidence collected, the effectiveness of the restrictions imposed as 6 part of the modified program, the likelihood that violence would occur without the 7 restrictions in place, the appropriateness of the scope of the restrictions, and the 8 prospects and timetable for a phased unlock to return to normal programming. 9 (McDonald Decl. ¶ 13.) 10 8. As Warden, McDonald also attended numerous weekly threat assessment meetings in 11 which prison officials discussed the modified program, the status of the investigation, 12 and the threats to safety and security in Facility B and the institution generally. 13 (McDonald Decl. ¶ 14.) 14 9. Throughout these threat assessment meetings, McDonald’s staff provided their 15 opinions and recommendations concerning the modified program, but no member of 16 his staff had the authority to decide whether to adjust or terminate the modified 17 program. (McDonald Decl. ¶ 15.) 18 C. Chief Deputy Warden Gower 19 10. At all relevant times, Defendant Gower was employed by CDCR as Chief Deputy 20 21 Warden at HDSP. (Gower Decl. ¶ 1.) 11. Chief Deputy Warden Gower was responsible for reviewing the programming 22 recommendations and evidence provided by subordinate staff, as well as evaluating 23 the ongoing need for the “Two-Five” Modified Program. (Gower Decl. ¶ 6.) 24 25 12. Chief Deputy Warden Gower also attended weekly meetings as part of the Warden’s Executive Committee. (Gower Decl. ¶ 7,8.) 26 13. Among the staff at HDSP, only the warden or his designee has the authority to begin 27 or end a modified program, or to adjust its terms once implemented. (Gower Decl. ¶ 28 4.) 19 1 14. As the Chief Deputy Warden, defendant Gower would have served as Warden 2 McDonald’s designee if the Warden had been unavailable. (Gower Decl. ¶ 5.) 3 15. Although Warden McDonald was not unavailable at any time during the “Two-Five” 4 Modified Program, defendant Gower did serve as the Warden’s designee on occasion 5 for the limited purpose of signing documents on his behalf. (Gower Decl. ¶ 5.) 6 16. However, Warden McDonald maintained the sole authority to begin, end, or adjust the 7 terms of the “Two-Five” Modified Program. Gower did not serve as Warden 8 McDonald’s designee for this purpose and never had the authority to begin, end, or 9 adjust the terms of the “Two-Five” Modified Program. (Gower Decl. ¶ 5.) 10 D. Correctional Captain Davey 11 17. From the initiation of the modified program on September 18, 2009, through 12 December 22, 2009, defendant Davey was the Correctional Captain for Facility B at 13 HDSP. (Davey Decl. ¶ 1.) 14 18. As Facility Captain for Facility B, Captain Davey served as a member of the Warden’s 15 executive committee until his promotion on December 22, 2009. However, Davey had 16 no authority to begin, end, or adjust the terms of the “Two-Five” Modified Program. 17 (Davey Decl. ¶¶ 4, 7.) 18 19. Captain Davey consulted with Warden McDonald and other members of the 19 committee regarding the “Two-Five” Modified Program. Davey provided Warden 20 McDonald daily briefings regarding the status of the “Two-Five” Modified Program 21 and updated him on the investigation as new intelligence information was discovered. 22 (Davey Decl. ¶ 4.) 23 20. Upon his promotion on December 22, 2009, Captain Davey became responsible for 24 overseeing custody operations for Complex II, which is composed of Facilities C and 25 D, as well as in the institution’s administrative segregation unit (Facility Z). (Davey 26 Decl. ¶ 5.) 27 28 21. After December 22, 2009, Captain Davey was not involved in any aspect of the “TwoFive” Modified Program. (Davey Decl. ¶ 5.) 20 1 E. Lieutenant Van Leer 2 22. At all relevant times, Defendant Van Leer was a Correctional Lieutenant assigned to 3 HDSP Prison’s Facility B. (Van Leer Decl. ¶ 2.) 4 23. As Second Watch Lieutenant for Facility B, Lt. Van Leer attended numerous threat 5 assessment meetings and provided briefing to the Facility B Captain. However, he 6 never directly briefed Warden McDonald in person. (Van Leer Decl. ¶ 9, 10.) 7 24. Lt. Van Leer also drafted memorandum addressed to Warden McDonald in which he 8 apprised the Warden of the status of the investigation and updated him on efforts to 9 return to normal programming. (Van Leer Decl. ¶ 11.) 10 25. Although Lt. Van Leer was responsible for implementing the Warden’s policies 11 concerning the “Two-Five” Modified Program, he did not have the authority to begin, 12 end, or adjust the terms of the modified program once it had been implemented. (Van 13 Leer Decl. ¶ 12-14.) 14 F. Correctional Counselor Sanders 15 26. At all relevant times, defendant Sanders was employed by CDCR as a Correctional 16 17 Counselor I at HDSP. (Sanders Decl. ¶ 1.) 27. During the “Two-Five” Modified Program Sanders was the counselor for those 18 inmates identified as being members or associates of the “Two-Five” disruptive group. 19 (Sanders Decl. ¶ 4.) 20 28. Correctional Counselor Sanders had no decision-making authority in regards to the 21 “Two-Five” modified program and had no authority to assist plaintiff or to alter the 22 status of plaintiff’s confinement under the “Two-Five” Modified Program. (Sanders 23 Decl. ¶¶ 5-17.) 24 G. Correctional Counselor Domondon 25 29. At all relevant times, defendant Domondon was employed by CDCR as a Correctional 26 27 28 Counselor I at HDSP. (Domondon Decl. ¶ 1.) 30. During the “Two-Five” Modified Program Domondon was the counselor for those inmates identified as being members or associates of the “Two-Five” disruptive group. 21 1 (Domondon Decl. ¶ 4) 2 31. Correctional Counselor Domondon had no decision-making authority in regards to the 3 “Two-Five” modified program and had no authority to assist plaintiff or to alter the 4 status of his confinement under the “Two-Five” Modified Program. (Domondon Decl. 5 ¶¶ 5-15, 25.) 6 7 8 9 10 11 II. HIGH DESERT STATE PRISON AND FACILITY B SENSITIVE NEEDS YARD 32. HDSP is a Level IV, maximum security prison. The majority of inmates housed at HDSP are Level IV inmates who are believed to pose the greatest threat to institutional safety and security. (McDonald Decl. ¶ 16.) 33. Level IV prisons house the most violent and dangerous felons. Level IV prisons have 12 a secure perimeter with internal and external armed coverage and housing units with 13 cells that are not adjacent to exterior walls. (McDonald Decl. ¶ 17.) 14 34. HDSP is made up of two complexes: Complex One and Complex Two. Complex 15 One consists of Facilities A and B. Complex Two consists of Facilities C and D. 16 (McDonald Decl. ¶ 18.) 17 35. Each facility is self-contained and built around a yard where inmates are allowed to 18 exercise daily, unless unusual circumstances require otherwise. (McDonald Decl. ¶ 19 19.) 20 36. Facility B is comprised of five identical housing units (B1 through B5), each 21 containing 100 cells, and a gymnasium, which also was used to house inmates. 22 During 2009, HDSP’s Facility B housed approximately 1,100 Level IV sensitive 23 needs inmates. (McDonald Decl. ¶ 20.) 24 37. Facility B is a designated Sensitive Need Yard. Sensitive Need Yards were 25 established to provide protective housing for inmates that could not safely program on 26 a general population yard. An inmate was typically placed on a Sensitive Needs Yard 27 for reasons that may have made him a target of violence at the hands of other inmates. 28 An inmate may be placed on a Sensitive Needs Yard based on his commitment 22 1 offense, medical needs, age, or status as a gang dropout. (McDonald Decl. ¶ 21.) 2 38. Despite the intent to provide more protective housing, the Sensitive Needs Yard at 3 HDSP often presented equal, if not greater, problems, including violence, than the 4 general population yards. (McDonald Decl. ¶ 22.) 5 39. This is because HDSP’s Sensitive Needs Yard was composed of a diverse mix of 6 inmates. Many were former members of rival prison or street gangs. Many of these 7 former gang members were ruthless killers who had previously sworn to kill members 8 of rival gangs or known sex offenders on sight. (McDonald Decl. ¶ 23.) 9 10 11 40. On a general population yard, these rival gangs tended to self-segregate and each gang typically had its own “turf.” (McDonald Decl. ¶ 24.) 41. Most inmates placed on a Sensitive Needs Yard attempted to program non-violently. 12 Nonetheless, given the mix of inmates, if tensions arose, it was often very difficult for 13 custody staff to manage those tensions. (McDonald Decl. ¶ 25.) 14 III. BACKGROUND ON MODIFIED PROGRAMMING 15 42. Normal programming within the prison is optimal. Normal programming means the 16 inmates attend work and education programs; have regular visiting, canteen and 17 telephone privileges; are allowed to attend the law library and religious services; and 18 are released to the yard for recreation in large groups according to their yard 19 schedules. (McDonald Decl. ¶ 26.) 20 43. A modified program typically involves the suspension of various programs or services 21 for a specific group of inmates and/or in a specific portion of a facility. For example, 22 work and education programs might be suspended; telephone, canteen, or visiting 23 privileges might be restricted; and meals may be delivered to the cells instead of being 24 served in the dining hall. These programs and privileges are restored incrementally as 25 the administration deems appropriate based on the concern with maintaining safety 26 and institutional security. (McDonald Decl. ¶ 27.) 27 44. In contrast, a lockdown typically involves the restriction of all inmates to their cells or 28 dormitory beds, the suspension of all programs, and the suspension of all but essential 23 1 functions. Lockdowns can be imposed on the entire prison or on a specific facility 2 within the prison. Inmate movement is strictly controlled, under close supervision, 3 and generally under escort with mechanical restraints. The administration determines 4 whether critical inmate workers in the affected housing units should be permitted to 5 attend their work assignments. Inmates are only released on a case-by-case basis. 6 (McDonald Decl. ¶ 28.) 7 45. CDCR policies and procedures provide that whenever there is a serious incident, the 8 priorities are as follows: (1) isolate, contain, and control the situation to the smallest 9 possible area; (2) provide medical attention to all injured persons; (3) preserve all 10 available evidence; (4) identify all involved persons; and (5) complete and submit 11 appropriate written documentation and reports within the designated time frames. 12 (McDonald Decl. ¶ 30.) 13 46. During a modified program, the warden communicates with staff and the affected 14 inmate population through periodic reports, called Program Status Reports (“PSRs”). 15 Part B of PSRs updated all interested parties about the status of the modified program, 16 and the PSRs communicated the warden’s plans for returning to normal programming 17 as soon as it is safe to do so. PSRs reflect the warden’s instructions for how the 18 modified program is to be implemented, and subordinate staff is not free to deviate 19 from these instructions. (McDonald Decl. ¶ 31.) 20 47. When staff learns of a threat to institutional safety and security, after the initial 21 incident response is completed and the situation stabilized, the incident is assessed to 22 determine whether it is necessary to modify or restrict programming activities for 23 some or all inmates. This happens as follows: after a precipitating event, the 24 lockdown committee meets and assesses the overall safety and security risk, and it 25 determines what areas of the prison are affected, which investigations must be 26 conducted, whether to interview staff and inmates, and how to collect relevant 27 intelligence. (McDonald Decl. ¶ 32.) 28 48. If the incident is serious, it may be necessary to modify or restrict program activities 24 1 for some or all inmates by: (1) declaring a State of Emergency; (2) locking down an 2 entire facility or portions of a facility; or (3) placing some or all of the facility on a 3 modified program. The lockdown committee submits a recommendation to the 4 warden, which may include a request to institute any one of these three security 5 measures, and the warden, or his or her designee, approves or rejects the 6 recommendation. (McDonald Decl. ¶ 33.) 7 49. If a modified program is implemented in any form, it is assigned a Program Status 8 Number. It is referred to by this number in all related documents thereafter. The 9 modified program at issue in this case was assigned Program Status Number HDP-B- 10 09-025. (McDonald Decl. ¶ 34.) 11 50. At any time, a facility or housing unit can be operating under more than one modified 12 program, each of which is designed to address a specific security risk. For instance, a 13 housing unit could be operating under two separate modified programs at the same 14 time — in this case one affecting suspected “Two-Five” members and the other 15 affecting the remaining population. (McDonald Decl. ¶ 35.) 16 51. CDCR implements lockdowns and modified programs when they are necessary to 17 maintain safety and security in the prisons, and to protect the lives of inmates and 18 staff. Decisions to implement a lockdown or modified program are usually based on 19 numerous situation-specific facts. (McDonald Decl. ¶ 36.) 20 52. Only by evaluating incidents on a case-by-case basis can prison officials determine 21 when a prison must be locked down or a group of inmates placed on a modified 22 program; when normal programs, including outdoor exercise, should be suspended for 23 particular inmates; or when and how normal programming can be safely resumed. 24 (McDonald Decl. ¶ 37.) 25 53. Setting the parameters of the group of inmates subject to modified programming is 26 always situation-specific. The intention is to be neither under-inclusive nor over- 27 inclusive, but to set the limit necessary to facilitate investigational tasks, and 28 implement measures best designed to ensure the safety and security of the prison’s 25 1 staff, its inmates, and the institution as a whole, without needlessly interrupting the 2 programming of inmates who were not involved. (McDonald Decl. ¶ 38.) 3 54. CDCR’s policy requires a return to normal programming as soon as it is safe to do so. 4 Gathering information about the cause(s) of violence, any significant security breaches 5 that have occurred, or the plans for committing acts of violence, is imperative so that 6 prison staff can determine how and when to resume normal programming and avoid 7 further incidents. (McDonald Decl. ¶ 39.) 8 9 10 11 55. Once custody staff identifies the inmates who instigated the incident, those inmates are removed from the general population, and the Warden determines it is safe to resume normal programming, a phased unlock may begin. (McDonald Decl. ¶ 40.) 56. An unlock plan is developed by the Warden and his staff to return to full 12 programming. During the phased unlock, inmates are released, and privileges restored, 13 in stages. (McDonald Decl. ¶ 41.) 14 57. It is more difficult, labor intensive, and expensive to operate a prison during a 15 modified program. Typically, during normal programming, inmates assist staff as part 16 of their work assignments, and they are allowed to report to the showers and some 17 medical appointments without an escort. During a modified program, correctional 18 staff must deliver all meals to each inmate’s cell, most work assignments are 19 suspended, and inmates must be escorted to showers and medical appointments. In 20 addition, correctional staff is diverted from their regular responsibilities to assist in the 21 investigation of the underlying incident. (McDonald Decl. ¶ 42.) 22 IV. PROCEDURES RELATED TO INVESTIGATION OF INCIDENT 23 58. Once a modified program is implemented, the process of investigating and gathering 24 intelligence begins. The investigation process can be slow, time-consuming, and labor 25 intensive. Inmates and facility staff are interviewed by Institution Gang Investigators 26 (“IGI”) and custody staff to gather intelligence about the incident and to determine 27 whether it is safe to return to normal programming. Inmates must often be 28 interviewed more than once because they are reluctant to speak with or disclose 26 1 information to correctional staff. As tensions begin to ease and as the modified 2 program and attendant restrictions continue, inmates become more willing to 3 cooperate with correctional staff. (McDonald Decl. ¶ 43.) 4 59. The yards, cells, common areas, and other areas of the prison are searched thoroughly 5 for evidence, weapons, and contraband. Mail is screened for any information 6 concerning planned violence. Each piece of evidence and information obtained from 7 either a search or interview is examined and all leads are followed, which often creates 8 the need for additional searches and interviews. (McDonald Decl. ¶ 44.) 9 60. The investigation process is delayed when weapons are discovered during the 10 searches. The discovery of weapons creates additional issues that must be evaluated, 11 including but not limited to, where the weapons came from, how they were made, 12 when they were gathered, and their intended targets. (McDonald Decl. ¶45.) 13 61. If another incident occurs during the unlock process, the warden may rescind 14 previously restored programs so an investigation of the new incident can be 15 completed. If it is determined that returning the inmates to normal programming 16 would pose too great a risk, the warden may continue the modified program. While 17 some of the evidence gathered during the prior investigation may be helpful, prison 18 officials need to conduct a new investigation and assess the nature, scope, and duration 19 of the most recent threat to safety and institutional security. (McDonald Decl. ¶ 46.) 20 62. It may take several weeks, or sometimes months, to complete the necessary 21 interviews, searches, and investigations. This time frame may be extended if critical 22 information is discovered or leads are developed requiring further investigation. 23 Further delays will also occur if there are other incidents. (McDonald Decl. ¶ 47.) 24 63. The fact that an inmate was not housed in a particular housing unit where the 25 precipitating event occurred does not change the fact that every inmate falling within 26 the scope of the modified program is subject to investigation. (McDonald Decl. ¶ 48.) 27 V. THE PHASED RETURN TO NORMAL PROGRAMMING 28 64. CDCR’s policy is to return to full normal programming as soon as it is safe to do so. 27 1 (McDonald Decl. ¶ 49.) 2 65. To that end, the warden requests that his staff develop an unlock plan for releasing the 3 affected inmates back to normal programming. An unlock plan depends on the nature 4 of the incident and is developed on a case-by-case basis. Thus, the return to full 5 program activities will be undertaken in phases, depending on the magnitude and 6 dynamics of the incident. The resumption of normal program activities is planned and 7 implemented during normal business hours when the majority of regularly scheduled 8 staff are present and have been briefed on the plan of operation. (McDonald Decl. ¶ 9 50.) 10 66. Generally, small numbers of inmates are released initially, and critical inmate workers 11 are often the first to be released. The number of inmates who are released is increased 12 over time, but only when it is deemed safe to do so. After inmates with priority work 13 assignments are released, their privileges are restored incrementally. (McDonald 14 Decl. ¶ 51.) 15 67. The remaining inmates are included in incremental releases and return to their full 16 programming. Generally, non-involved groups are released first, followed by those 17 involved in the incident based on their gang and disruptive group affiliations. 18 (McDonald Decl. ¶ 52.) 19 68. Inmates are released in small groups to the day room and the recreation yard, where 20 staff have the opportunity to observe their conduct in a controlled environment, 21 thereby providing a means to evaluate whether the unlock can proceed safely. 22 (McDonald Decl. ¶ 53.) 23 69. During the unlock process, program activities such as telephone calls, canteen and 24 quarterly packages are restored incrementally as well. (McDonald Decl. ¶ 54.) 25 70. If another incident occurs during the unlock process, it may be necessary to lockdown 26 inmates who were previously released so an investigation of the new incident can be 27 completed. (McDonald Decl. ¶ 55.) 28 ///// 28 1 VI. RESTRICTIONS ON EXERCISE DURING A MODIFIED PROGRAM 2 71. Among all of the programming activities that are suspended during a modified 3 program, it is most difficult to determine when exercise programs can safely be 4 resumed. In Warden McDonald’s experience violence is most likely to occur on an 5 exercise yard following a phased unlock. Inmates have the greatest access to each 6 other on the exercise yards, which is typically where most assaults occur. The number 7 of inmates on a yard greatly outnumbers the correctional staff members assigned to 8 monitor the area. (McDonald Decl. ¶ 56.) 9 72. The safety and security of the institution, staff, and inmates, takes precedence over all 10 other considerations. Striking the right balance between ensuring institutional security 11 and the safety of staff and inmates, and returning inmates to regular exercise and 12 normal programming as soon and as safely as possible is difficult. (McDonald Decl. ¶ 13 57.) 14 73. In 2009-2010, there were numerous factors that Warden McDonald considered when 15 deciding how and when to safely resume outdoor exercise after the “Two-Five” 16 Modified Program had been implemented. Warden McDonald believed that every 17 modified program should end as quickly as is safely possible. But the consequences 18 for failing to impose a modified program or ending one prematurely can be dire. 19 (McDonald Decl. ¶ 57.) 20 74. The risk associated with lifting modified programming prematurely, is that further 21 incidents of violence can occur. Unfortunately this was the experience on Facility B, 22 as the September 17, 2009 attacks occurred approximately a week after Facility B 23 returned to normal programming following another attempted murder. Given that 24 experience, Warden McDonald was particularly cautious about lifting “Two-Five” 25 Modified Program prematurely. (McDonald Decl. ¶ 58.) 26 75. Plaintiff claims that he should have been allowed to use the small concrete yards for 27 exercise during “Two-Five” Modified Program. This was not feasible and could not 28 be allowed for several reasons. 29 1 a. First, from the time that HDSP opened in 1995, to present, the concrete yards have 2 never been used for general population or Sensitive Needs Yard programming; they 3 were only designed for, and have only been used by, Administrative Segregation 4 Overflow and Security Housing Unit inmates. 5 b. Second, the concrete yards could safely accommodate only approximately 10 to 20 6 prisoners at a time. Devoting custodial staff to evaluating, selecting, escorting, and 7 supervising such small groups would significantly impede and delay investigations, 8 thereby lengthening the time that all inmates would be deprived of exercise on the 9 main yard and other programming activities. 10 c. Third, placing up to twenty Level IV inmates in an enclosed space the size of a 11 basketball court could have been disastrous. If an inmate were assaulted in one of the 12 enclosed concrete yards, he would have no means of escape; he would be trapped. 13 Putting ten to twenty inmates in such a situation exposed them to an unreasonable risk 14 of harm. 15 d. Fourth, the “Two-Five” group was engaged in a concerted and coordinated effort to 16 murder all sex offenders on Facility B. Providing the “Two-Five” members an 17 opportunity to meet and make further plans would have undermined one of the main 18 reasons for placing them on modified program in the first place, which was to prevent 19 them from planning and carrying out further violence. (McDonald Decl. ¶ 59.) 20 VII. THE MODIFIED PROGRAM WAS NECESSARY IN TIME AND SCOPE 21 76. While portions of the modified program at issue applied only to specific groups of 22 inmates, these restrictions were not arbitrary. Based on the information Warden 23 McDonald was provided, he believed that: (1) there were unknown numbers of 24 unidentified inmates involved; (2) the investigators had properly identified the target 25 groups of inmates (i.e. “Two-Five” members or associates housed on Facility B); (3) 26 the only way to ensure the safety of staff and inmates and the security of the institution 27 was to remove or isolate this target group; and (4) the consequences for failing to act 28 would have been dire. (McDonald Decl. ¶ 60.) 30 1 77. All restrictions imposed on inmate access to the main exercise yards during modified 2 programming were imposed with the belief that the restrictions would be effective in 3 preventing further acts of violence, and would help to restore order. (McDonald Decl. 4 ¶ 61.) 5 78. Warden McDonald repeatedly instructed his staff that his objective was to return to 6 normal programming as soon as it was safe to do so. He believed that his staff worked 7 diligently to achieve that objective. (McDonald Decl. ¶ 62.) 8 79. Knowing when and how to return to regular programming after an incident is a 9 difficult and delicate decision. The restrictions placed on outdoor exercise during the 10 modified program at issue were based on considerations of the safety and security of 11 the institution, staff, inmates, and the public, and Warden McDonald’s intent was 12 always to return the affected inmates to regular programming as soon as was safely 13 possible. (McDonald Decl. ¶ 63.) 14 80. As each investigation progressed, Warden McDonald developed a plan to release all 15 affected inmates from the restriction of the modified program as soon as he 16 determined it was safe to do so, and when he believed that it was safe to restart normal 17 programming activities, based on all the information provided to him by prison staff, 18 he implemented a gradual, calculated release based on those restrictions. (McDonald 19 Decl. ¶ 63.) 20 81. Based upon the reports Warden McDonald received, he and his staff believed that the 21 modified program at issue: (1) was necessary to protect the lives of correctional staff 22 and inmates because of significant and credible threats of continued violence; (2) was 23 a response to severe and unusually high levels of violence on Facility B; (3) was 24 designed solely to protect the lives and safety of inmates and correctional staff 25 members whom the warden believed were in imminent danger of violent assaults; (4) 26 did not last any longer than was necessary to protect the lives and safety of inmates 27 and correctional staff; (5) was not intended to prejudice or harass anyone; and (6) did 28 not violate any statutory or constitutional rights. (McDonald Decl. ¶ 66; Gower Decl. 31 1 2 ¶ 17, Davey Decl. ¶ 8, Van Leer Decl. ¶ 18.)) 82. Warden McDonald’s belief was supported by the marked decrease in violence on 3 Facility B as the “Two-Five” Modified Program progressed and inmates identified as 4 “Two-Five” members were removed from the Sensitive Needs population. 5 (McDonald Decl. ¶ 65.) 6 VIII. THE 2009-2010 MODIFIED PROGRAM ON FACILITY B AT HDSP 7 83. Prior to the institution of the modified program that is the subject of this lawsuit (the 8 “Two-Five” Modified Program), there were a number of violent incidents on Facility 9 B at HDSP, including multiple attempted murders. Much of this violence involved the 10 11 12 13 use of inmate manufactured weapons. (Defs.’ Exs. A-42, D & E.) 84. A majority of this violence was directly attributed to the “Two-Five” disruptive group. (Defs.’ Ex. A-42.) 85. When it was discovered that metal had gone missing, Facility B was placed on 14 modified program from February 18, 2009, through March 10, 2009. (Defs.’ Ex. D- 15 1.) 16 86. In early April, there was an attempted murder on Facility B, leading the Warden to 17 place Facility B on Modified Program from April 6, 2009, through May 17, 2009. 18 (Defs.’ Ex. D-1.) 19 87. On July 1, 2009, Facility B was placed on modified program following threats made 20 towards staff. Facility B returned to normal program on July 16, 2009. (Defs.’ Ex. D- 21 1.) 22 88. On July 7, 2009, an inmate attacked his cellmate with an inmate manufactured 23 weapon. The victim sustained several abrasions and lacerations to his face. (Defs.’ 24 Ex. E-1.) 25 26 27 28 89. On July 10, 2009, two inmates attacked another inmate during evening meal. The victim was stabbed with a paper clip. (Defs.’ Ex. E-2.) 90. On July 20, 2009, one inmate attacked another during morning yard. Using his fists, the assailant inflicted a laceration under the victim’s eye that required six sutures to 32 1 2 close. (Defs.’ Ex. E-3.) 91. On July 30, 2009, five inmates attempted to murder another inmate during the release 3 for morning meal. At that time officers recovered three inmate manufactured weapons 4 that were used during the attempted murder. The victim suffered a number of 5 lacerations and puncture wounds, which required sutures and staples to close. (Defs.’ 6 Ex. E-4.) 7 92. The Warden placed the facility on modified program on July 31, 2009. The modified 8 program was lifted, approximately six weeks later, on September 9, 2009. (Defs.’ Ex. 9 D-1.) 10 93. On September 17, 2009, a week after Facility B returned to normal programming, 11 there was a third attempted murder, which led to the implementation of the “Two- 12 Five” Modified Program. (Defs.’ Ex. D-2.) 13 94. Following the third attempted murder, officials at HDSP began the process of having 14 the “Two-Five” group officially recognized as a prison gang or disruptive group. 15 (McDonald Decl. ¶ 8.) 16 95. To this end, officials at HDSP were in close contact with CDCR headquarters 17 throughout the resulting modified program and investigation of “Two-Five” activities 18 on Facility B. (McDonald Decl. ¶ 8.) 19 96. Although the “Two-Five” were not designated as a prison gang or disruptive group by 20 CDCR at that time, efforts to do so demonstrate how serious a threat prison officials 21 believed the “Two-Five” were to institutional security. The “Two-Five” have since 22 been identified as a “Security Threat Group II” under CDCR’s recently implemented 23 policies. (McDonald Decl. ¶ 9.) 24 IX. SEPTEMBER 17, 2009: ATTEMPTED MURDERS OF THREE INMATES 25 97. One of the most serious incidents leading to the modified program occurred on 26 September 17, 2009, when three members of the “Two-Five” group assaulted inmates 27 on the Sensitive Needs Yard. (Defs.’ Ex. A-1.) 28 98. On September 17, 2009, two coordinated stabbing incidents occurred simultaneously 33 1 on opposite ends of the Facility B main exercise yard. The attacks were coordinated 2 in such a way that they diverted custody’s response to opposite ends of the yard, 3 providing the assailants time to inflict the maximum amount of damage. (Defs.’ Ex. 4 A-1.) 5 99. Three Hispanic inmates, who were associated with the “Two-Five” group, stabbed 6 three Mexican National inmates. All three assailants used inmate manufactured 7 weapons, and all victims suffered serious injuries. (Defs.’ Ex. A-1.) 8 9 10 100. Two of the victims were transported via air ambulance to outside hospitals and the third was transported to an outside hospital by ambulance. (Defs.’ Ex. A-1.) 101. Through subsequent investigation, custody staff learned from multiple sources that 11 the attacks were part of a coordinated effort by the “Two-Five” group to 12 systematically murder and remove sex offenders from Facility B. (Defs.’ Ex. A-7.) 13 102. Information discovered through the investigation indicated that the “Two-Five” 14 group would continue to attack sex offenders every time Facility B returned to normal 15 programming until they were transferred to another institution. (Defs.’ Ex. A-42.) 16 A. Initiation of Modified Program and Investigation of Incident 17 103. As a result of this incident, all inmates on Facility B were placed on modified 18 programming on September 18, 2009 (the “Two-Five” Modified Program). (Defs.’ 19 Ex. A-3.) 20 104. During the “Two-Five” Modified Program, the central files of all inmates were 21 reviewed to determine gang or disruptive group affiliation, whether the inmate had a 22 history of violence, and the suitability of that inmate remaining in the Sensitive Needs 23 Yard setting. (Defs.’ Ex. A-1.) 24 25 26 27 28 105. The investigation included interviews and searches of the entire inmate population on Facility B as well as the entire facility itself. (Defs.’ Ex. A-1.) 106. During the investigation, custody staff specifically attempted to identify those inmates who were affiliated with the “Two-Five” group. (Defs.’ A-5.) 107. Given the severity of the September 17 attack, custody staff believed it was 34 1 imperative that inmates identified as being affiliated with the “Two-Five” group were 2 isolated from the remainder of the inmate population on Facility B. (Defs.’ Ex. A-5.) 3 108. On October 6, 2009, all inmates identified as being members or associates of the 4 “Two-Five” group were removed from their cells and escorted to the Facility B dining 5 hall. (Defs.’ Ex. A-5.) 6 109. 7 In the dining hall, IGI photographed the inmates to document any gang-related tattoos and conducted interviews to determine any gang affiliation. (Defs.’ Ex. A-5.) 8 110. 9 While these inmates were held in the dining hall, correctional officers searched their cells and removed all property. (Defs.’ Ex. A-5-6.) 10 111. 11 Each inmate’s property was catalogued and searched for anything that would indicate gang affiliation. (Defs.’ Ex. A-5.) 12 112. 13 Inmates not affiliated with the “Two-Five” group were removed from Facility B, Building 2, Section C and re-housed in another unit. (Defs.’ Ex. A-5.) 14 113. Inmates identified as being members of the “Two-Five” group, were separated 15 from other Facility B inmates and placed in housing Building 2, Section C, where they 16 remained on Modified Program status. (Defs.’ Ex. A-5.) 17 B. Plaintiff Gomez’s Inclusion in “Two-Five” Group 18 114. In a confidential memo, dated July 8, 2008, plaintiff was identified as a member of 19 the “Two-Five” group by an inmate who claimed that he was threatened with assault 20 by “Two-Five” members if he did not comply with their orders to pay money to the 21 Mexican Mafia. (Defs.’ Ex. B-1–B-3.) 22 115. The information provided by this inmate was deemed reliable because it was 23 corroborated by other confidential sources, through investigation, or by information 24 provided by a non-confidential source. (Defs.’ Ex. B-2.) 25 116. C with other suspected members of the “Two-Five” group. (Defs.’ Ex. A-5.) 26 C. October 2009: Attempt to Return Non-“Two-Five” Inmates to Normal 27 28 Based on this information, plaintiff was housed in Facility B, Building 2, Section ///// 35 1 2 Programming and Subsequent Threats 117. On October 20, 2009, defendant Lt. Van Leer drafted a memorandum to Warden 3 McDonald in which he indicated that Facility B supervisors believed that all inmates 4 identified as “Two-Five” members had been removed from the remainder of the 5 inmate population and placed in Building 2, Section C. (Defs.’ Ex. A-7-A-9.) 6 118. Based on this belief, the Facility B supervisors thought that the root of the recent 7 violence had been removed, and the remainder of the Facility B population could 8 return to normal programming. (Defs.’ Ex. A-8.) 9 119. However, on October 23, 2009, first watch staff intercepted a letter that stated, “I 10 hear some more shit is going to go down on Monday. So we will probably be on 11 lockdown again.” (Defs.’ Ex. A-10.) 12 120. A Facility B Sergeant interviewed the inmate who authored the letter the following 13 day. The inmate told the Sergeant that the “Two-Five” group was going to continue 14 “removing ‘Sex Criminals’ from the yard.” (Defs.’ Ex. A-10.) 15 16 17 18 19 121. The inmate claimed that the potential victim of a “Two-Five” group attack had raped the sister or daughter of a “Two-Five” member. (Defs.’ Ex. A-10.) 122. As a result of that rape, the inmate was supposed to be assaulted with a weapon made of metal. (Defs.’ Ex. A-10.) 123. The inmate also told prison officials that white inmates not affiliated with the 20 “Two-Five”” group were planning a larger-scale attack on “Two-Five” members 21 because the “Two-Five” attacks were affecting their programming. (Defs.’ Ex. A-10, 22 A-42.) 23 124. On October 24, 2009, a Correctional Officer overheard an inmate tell his mother 24 on a telephone call that the facility would be back on lockdown on Monday. (Defs.’ 25 Ex. A-10.) 26 27 28 125. Prison officials conducted numerous separate interviews in which they learned of possible assaults utilizing weapons. (Defs.’ Ex. A-10.) 126. Based on this information, Warden McDonald placed Facility B on modified 36 1 program on Monday October 26, 2009. (Defs.’ Ex. A-12.) 2 D. November 2009: Resumption of Modified Program and Further Investigation 3 127. Beginning on November 2, 2009, prison officials began to again review inmate 4 Central Files and conduct interviews with inmates in an effort to identify additional 5 inmates affiliated with the “Two-Five” group. (Defs.’ Ex. A-14.) 6 128. Inmates with identifying tattoos or other substantiated evidence of “Two-Five” 7 group affiliation were re-housed in Building 2, Section C of Facility B. (Defs.’ Ex. A- 8 14.) 9 129. If no evidence of “Two-Five” group affiliation was found for a particular inmate, 10 that inmate was required to sign an Unlock Chrono, indicating that he would not 11 participate in gang activities and would program non-violently. (Defs.’ Ex. A-14.) 12 130. The goal was to move all inmates with suspected “Two-Five” group affiliation into 13 Building 2, Section C, while inmates with no affiliation would be housed in Buildings 14 One, Three, Four, and Five, or in the Facility B Gym. (Defs.’ Ex. A-14.) 15 16 17 131. This would ensure that these buildings and the gym would be housed only with inmates wanting a positive, non-violent program. (Defs.’ Ex. A-15.) 132. The renewed investigation began with inmates housed in the Facility B Gym, 18 where most of Facility B’s critical workers were housed. Critical workers are those 19 workers that assist with the operation of the prison and include food services, laundry, 20 and sanitation workers. Starting in the gym would allow correctional staff to return 21 these critical workers to work at the earliest possible time in order to alleviate some of 22 the strain on correctional staff. (Defs.’ Ex. A-14.) 23 133. Once all central files were reviewed and all inmates were interviewed, Warden 24 McDonald’s plan was that those housed in the Gym would begin Phase One of a 25 phased return to normal programming. (Defs.’ Ex. A-14.) 26 27 28 134. The investigation would then continue building by building until each housing unit was cleared of suspected “Two-Five” group affiliates. (Defs.’ Ex. A-15.) 135. Once this was accomplished, each housing unit would receive evening dayroom on 37 1 a rotational basis, canteen, quarterly packages, and contact visits. (Defs.’ Ex. A-15.) 2 E. November 12, 2009: Threats Against Staff 3 136. 4 5 On November 12, 2009, a member of the “Two-Five” group informed correctional staff that he had been selected to assault staff. (Defs.’ Ex. A-42.) 137. This inmate was directed to use an inmate manufactured key to escape his 6 handcuffs during his escort to the showers. Once he was free from the handcuffs, he 7 was instructed to assault staff. Based on this information, Facility B was placed on 8 modified program. (Defs.’ Ex. A-43.) 9 10 11 F. December 1, 2009: Phase One of the Modified Program 138. On December 1, 2009, Facility B initiated Phase One of a modified program. (Defs.’ Ex. A-16.) 12 139. During Phase One, all inmates were fed meals in their cells. (Defs.’ Ex. A-16.) 13 140. Those inmates not suspected of participation in gang activities were provided yard 14 access on a rotating basis, with one tier from a building being released at a time. 15 (Defs.’ Ex. A-16.) 16 17 141. During this period, there were no incidents involving the inmates released for yard. (Defs.’ Ex. A-16.) 18 G. December 14, 2009: Phase Two of the Modified Program 19 142. 20 21 On December 14, 2009, Facility B initiated Phase Two of the modified program. (Defs.’ Ex. A-16.) 143. During Phase Two, both tiers from a building were released for yard at the same 22 time. One building would be released for morning yard, the next for afternoon, so that 23 Buildings One through Five and the Gym would receive yard time every third day. 24 (Defs.’ Ex. A-16.) 25 144. In addition, under Phase Two, inmates not suspected of participation in gang 26 activities received their morning meal in the dining hall, while they continued to 27 receive their evening meal in their cells. Inmates not suspected of participation in 28 gang activities were escorted unrestrained to medical appointments. (Defs.’ Ex. A38 1 2 16.) 145. All inmates were escorted in handcuffs for non-contact visits, could arrange for 3 law library access, and were limited to in-cell religious study. Inmates not suspected 4 of gang affiliation also had access to the telephone and canteen. (Defs.’ Ex. A-16 – A- 5 17.) 6 7 146. During Phase Two there were no incidents that would preclude the implementation of Phase Three. (Defs.’ Ex. A-19.) 8 H. December 28, 2009: Phase Three of the Modified Program. 9 147. 10 11 12 13 On December 28, 2009, Facility B initiated Phase Three of the modified program. (Defs.’ Ex. A-19.) 148. All privileges restored during Phase One and Phase Two continued. (Defs.’ Ex. A-19.) 149. Under Phase Three, inmates not suspected of participation in gang activities 14 received all of their meals in the dining hall, while those suspected of gang activity 15 received meals in their cells. (Defs.’ Ex. A-19.) 16 17 150. All non-“Two-Five” group inmates continued to receive yard time on a rotating basis. (Defs.’ Ex. A-19.) 18 I. January 2010: Threats Against Staff and Inmates, Lockdown Initiated 19 151. On January 4, 2010, written information was intercepted indicating that an inmate 20 affiliated with the “Two-Five” group was conspiring with other inmates to assault 21 unidentified Correctional Staff and inmates on Facility B. (Defs.’ Ex. A-22.) 22 152. Secondary information was also received from other confidential sources 23 indicating that inmates affiliated with the “Two-Five” group were attempting to recruit 24 other inmates not currently on modified program to carry out assaults on Facility B 25 Correctional Staff. (Defs.’ Ex. A-22.) 26 153. On January 5, 2010, IGI officers interviewed the author of the note. The author of 27 the note indicated that his cellmate intended to assault three correctional officers. 28 (Defs.’ Ex. A-22.) 39 1 154. 2 The author of the note also stated that he overheard his cellmate and another inmate discussing whether to assault staff or sex offenders. (Defs.’ Ex. A-26.) 3 155. This second inmate was then interviewed and he stated that he had no intention to assault staff, only sex offenders. (Defs.’ Ex. A-26.) 4 5 156. This inmate indicated that members and associates of the “Two-Five” group were still planning on carrying out assaults on sex offenders. (Defs.’ Ex. A-26.) 6 7 157. This inmate also indicated that there was an ample amount of metal weapon stock 8 and weapons on the yard, the targets were selected, and so were the “Two-Five” group 9 members who were going to carry out the stabbing assaults. (Defs.’ Ex. A-26.) 10 158. 11 Based on this information, all of Facility B was placed on lockdown status on January 7, 2010, so that further investigation could occur. (Defs.’ Ex. A-27; A-43.) 12 159. 13 The investigation included extensive searching and interviewing of inmates and their housing areas. (Defs.’ Ex. A-43.) 14 160. During the investigation, several additional inmates were identified as members of the “Two-Five” group. (Defs.’ Ex. A-25.) 15 16 161. The newly identified “Two-Five” group affiliates were re-housed in Building 2, Section C with the other “Two-Five” disruptive group inmates. (Defs.’ Ex. A-25.) 17 18 162. The searches and interviews did not lead to the discovery of any weapons or any 19 information that would corroborate the confidential information regarding the 20 conspiracy to assault staff and sex offenders on Facility B. (Defs.’ Ex. A-28.) 21 163. Correctional staff recommended that Facility B resume the modified program at 22 Phase Two. The Warden implemented this recommendation on Tuesday, February 9, 23 2010. (Defs.’ Ex. A-28.) 24 J. February 22, 2010: Return to Phase Three and Amendment of Phase Three 25 164. On February 18, 2010, Facility B requested that Phase Three of the modified 26 program be implemented as there had been no incidents that would preclude its 27 implementation. (Defs.’ Ex. A-31.) 28 ///// 40 1 2 3 4 165. All inmates that had not been identified as participating in gang activity would receive their meals in the dining halls. (Defs.’ Ex. A-31.) 166. These inmates would also have access to the canteen and to the telephone and received yard on a rotating basis. (Defs.’ Ex. A-32.) 5 K. February 28, 2010: New Threats and Facility-Wide Modified Program 6 167. On February 28, 2010, prison officials received additional information about 7 potential future assaults from an inmate that had recently been transferred to HDSP. 8 (Defs.’ Ex. A-34.) 9 168. This inmate indicated that he had connections with the Mexican Mafia and could 10 communicate with inmates housed in any facility within the institution. (Defs.’ Ex. A- 11 34.) 12 13 14 15 16 169. This inmate indicated that he had knowledge of staff assaults that were to take place on Facility B, D-Facility, and Unit Z. (Defs.’ Ex. A-34-A-35.) 170. Based on this information, Facility B, D-Facility, and Unit Z were placed on modified program. (Defs.’ Ex. A-35.) 171. An investigation determined that the threat was not credible, and the Warden 17 returned Facility B to Phase Three of the modified program within two days. (Defs.’ 18 Ex. A-36.) 19 20 172. On March 2, 2010, Facility B returned to amended Phase Three of the modified program. (Defs.’ Ex. A-36.) 21 L. March 9, 2010: Phase Four of the Modified Program 22 173. 23 24 On March 9, 2010, Facility B moved into Phase Four of the modified program. (Defs.’ Ex. A-39.) 174. As of March 9, 2010, the inmate population on Facility B, excluding those 25 associated with the “Two-Five” group, had successfully completed Phase Three of the 26 modified program without any further incidents of violence. (Defs.’ Ex. A-39.) 27 28 175. At this point, Facility B Staff had identified and removed all inmates suspected of being associated with the “Two-Five” disruptive group from the remainder of the 41 1 inmate population on Facility B. (Defs.’ Ex. A-39.) 2 176. During Phase Four, the yard program consisted of a rotating schedule that allowed 3 inmates on modified program yard time every third day. The dayroom program 4 consisted of a rotating schedule that provided inmates dayroom access two times 5 during a three day period. (Defs.’ Ex. A-39.) 6 177. Facility B staff and IGI continued their investigation into the actions, activities, and membership of inmates in the “Two-Five” disruptive group. (Defs.’ Ex. A-43.) 7 8 178. Through this investigation, Facility B staff and IGI sought to gather information that would allow them to validate the inmates identified as members of the “Two- 9 Five” disruptive group. (Defs.’ Ex. A-43.) 10 11 M. May 17, 2010: Conclusion of the Investigation 12 179. On May 17, 2010, Facility B Staff and the IGI completed the investigation 13 regarding threats to inmates and staff on Facility B by the “Two-Five” group. (Defs.’ 14 Ex. A-43.) 15 180. Since the inmates identified as “Two-Five” members had been placed on modified 16 program on Facility B, inmate violence on Facility B was significantly reduced. 17 (Defs.’ Ex. A-43.) 18 181. By Monday May 17, 2010, IGI Staff were able to identify sixteen inmates 19 perpetuating the unrest and disruption, twenty-nine inmates with ties or association 20 with these inmates, and a preliminary list of eleven inmates with no association. 21 (Defs.’ Ex. A-44.) 22 182. IGI Staff and Supervisors continued to investigate the inmates in question and 23 monitor their activities to determine any gang, violent, or disruptive activity. (Defs.’ 24 Ex. A-44.) 25 183. 26 On Tuesday, May 18, 2010, Facility B Staff placed all sixteen inmates identified as perpetuating the unrest into Administrative Segregation. (Defs.’ Ex. A-44.) 27 ///// 28 ///// 42 1 N. May 19, 2010: Return of Non-Affiliated Inmates to Normal Programming 2 184. On May 19, 2010, Facility B staff began to return those inmates identified as 3 having little or no apparent association with the “Two-Five” group to normal 4 programming. (Defs.’ Ex. A-44.) 5 185. On May 24 and May 25, 2010, Facility B Correctional Counseling Staff 6 interviewed nineteen inmates who were identified as having some ties to the “Two- 7 Five” group. (Defs.’ Ex. A-44.) 8 9 10 11 186. Each of these inmates stated their willingness to positively program and to not participate in any gang, violent, or illegal activities. In addition, they all signed the CDCR-128-B Unlock Chrono, documenting this willingness. (Defs.’ Ex. A-44.) 187. Plaintiff Gomez signed an Unlock Chrono on or about May 24, 2010, and was 12 returned to normal programming the following day. (Defs.’ Ex. C.) 13 X. DISTRIBUTION OF PERSONAL HYGIENE ITEMS AND CELL 14 TEMPERATURE CONTROLS 15 188. Between October 6, 2009, and October 9, 2009, all inmates, including plaintiff 16 Gomez, who had been rehoused as part of the Modified Program, were provided with 17 personal hygiene items, including tooth powder and laundry items. (Amrein Decl. ¶ ¶ 18 3-6, Defs.’ Ex. M.) 19 189. Additionally, inmates on the IAC confirmed that all inmates had been given 20 “supplies in accordance with the procedures established in the housing units.” 21 (Amrein Decl. ¶ ¶ 3-6, Defs.’ Ex. N.) 22 190. In the wintertime, which is designated as beginning November 1 and continuing 23 through April of the next year, all buildings at HDSP, including Facility B are 24 maintained at sixty-eight (68) degrees. This temperature is maintained pursuant to the 25 directive by the Governor of the State of California. (Wilkerson Decl. ¶ 3.) 26 191. If a cell, or any section of the building has an issue with the temperature, such as 27 the cell or section getting too cold or too hot, the Engineer assigned to Facility B, 28 would receive a call for service, and would go to the facility to diagnose the source of 43 1 the temperature variation, and correct the problem, which could include replacement 2 of parts. (Wilkerson Decl. ¶ 4.) 3 192. From October 6, 2009, through May 26, 2010, there was one call for service from 4 Facility B, Building 2, for cell 150 on November 19, 2009. The problem with the 5 temperature in that cell was investigated and corrected by November 24, 2009. 6 (Wilkerson Decl. ¶ 5-7; Ex. P.) 7 193. During the summer months, which conclude on October 31, HDSP facilities are 8 required to maintain daily temperature logs of the buildings. These logs recorded the 9 daily temperature in each building in Facility B and show that Facility B, Building 2 10 was maintained at temperatures between 71 – 73 degrees from October 6, 2009 11 through October 31, 2009. (Wilkerson Decl. ¶ 8-9; Ex. Q.) 12 194. There were no other calls for service from October 6, 2009, through May 26, 2010, 13 which indicates that Facility B had no temperature-related problems, and the building 14 was maintained at 68 degrees pursuant to the Governor’s directive. (Wilkerson Decl. 15 ¶ 10.) 16 195. From October 6, 2009, through May 26, 2010, plaintiff Gomez was housed in 17 Facility B, Building 2, cell 246 and thereafter was housed in cell 205. (Amrein Decl. ¶ 18 2-4; Ex. O.) 19 XI. DEFENDANT SANDERS’ LIMITED CONTACT WITH PLAINTIFF GOMEZ 20 196. As part of her duties and to preserve plaintiff’s endorsement for transfer, defendant 21 Sanders prepared an extension of the endorsement for plaintiff’s transfer. She did this 22 to ensure that once plaintiff was released from modified program, he would still be 23 able to transfer to another prison without having to request another transfer. (Sanders 24 Decl. ¶ 20.) 25 197. Defendant Sanders does not recall receiving any request from plaintiff regarding 26 an Olsen review of his central file, nor does she recall any contact with plaintiff. 27 (Sanders Decl. ¶ 21.) 28 ///// 44 1 XII. DEFENDANT DOMONDON’S LIMITED CONTACT WITH PLAINTIFF 2 198. On May 24, 2010, defendant Domondon met with plaintiff Gomez for the sole 3 purpose of providing him documentation to sign, attesting to plaintiff’s promise not to 4 associate with, engage with or be a member of the “Two-Five” disruptive group. 5 (Domondon Decl. ¶ 19; Defs.’ Ex. C.) 6 199. Domondon met with plaintiff again on July 2, 2010, for the sole purpose of 7 affording him a review of his central file for an Olsen review. (Domondon Decl. ¶ 8 20.) 9 200. On July 2, 2010, plaintiff Gomez requested to view and obtain copies of 10 documents relating to his association with the “Two-Five” disruptive group, which 11 were contained in the section marked “Confidential” in his central file. (Domondon 12 Decl. ¶ 21.) 13 201. As a correctional counselor, Domondon does not have the authority to allow an 14 inmate to view or receive copies of documents contained the “Confidential” section of 15 an inmate central file, including plaintiff, and she advised plaintiff of this and 16 documented it in the 128B General Chrono. (Domondon Decl. ¶ 22; Defs.’ Ex. L.) 17 202. Domondon did not at any time tell plaintiff that: 1) there was nothing in his 18 central file to indicate he was a “Two-Five” group member or 2) that he must have 19 made someone very angry to be placed in administrative segregation for eight months. 20 (Domondon Decl. ¶ 23.) 21 203. Plaintiff was not placed in administrative segregation from October 6, 2009, to 22 May 26, 2010. He was placed in Facility B, on Modified Program. (Domondon Decl. 23 ¶ 24.) 24 25 ANALYSIS In resolving cross-motions for summary judgment, the court must consider each party’s 26 evidence. See Johnson v. Poway Unified School District, 658 F.3d 954, 960 (9th Cir. 2011). 27 Because in this case plaintiff will bear the burden of proof at trial on his claims, in order to 28 prevail on summary judgment he must affirmatively demonstrate that based upon the undisputed 45 1 facts no reasonable trier of fact could find other than for him. See Soremekun v. Thrifty Payless, 2 Inc., 509 F.3d 978, 984 (9th Cir. 2007). Because defendants do not bear the burden of proof at 3 trial, in moving for summary judgment they need only prove an absence of evidence to support 4 plaintiff’s case. See Oracle Corp., 627 F.3d at 387. 5 Below, the court will address the merits of the parties’ cross-motions for summary 6 judgment on plaintiff’s Fourteenth Amendment and Eighth Amendment claims. Based on all of 7 the evidence presented in connection with the pending cross-motions for summary judgment, and 8 for the reasons stated below, the undersigned concludes that plaintiff’s motion for summary 9 judgment should be denied, and defendants’ motion for summary judgment should be granted. 10 I. Fourteenth Amendment 11 First, the court will address the parties’ cross-motions for summary judgment with respect 12 to plaintiff’s Fourteenth Amendment claims. As to plaintiff’s motion for summary judgment, the 13 court finds that plaintiff has failed to establish beyond dispute that the defendants denied him his 14 procedural due process rights in violation of the Fourteenth Amendment. Specifically, plaintiff 15 contends that his conditions of confinement between October 6, 2009, and May 26, 2010, were 16 not part of defendants’ “modified program.” (Pl.’s Opp’n to Defs.’ Mot. for Summ. J./Cross-Mot. 17 for Summ. J. at 57 & Pl.’s SDF 204.) In this regard, plaintiff maintains that prison officials 18 segregated him and other alleged “Two-Five” group members in administrative segregation or an 19 SCU/SPSU, and therefore, he was entitled him to procedural due process protections. (Id.) 20 However, the evidence presented by plaintiff on summary judgment fails to establish that 21 he had a protected liberty interest in avoiding his challenged confinement. See Wilkinson, 545 22 U.S. at 221. Other judges of this court recently addressed a case in which a plaintiff’s cellmate 23 asserted a similar challenge to his conditions of confinement during the same time period at issue 24 here while prison officials investigated the plaintiff’s alleged membership in the “Two-Five” 25 group. See Mitchell v. Cate, No. 2:11-cv-1240 JAM AC P, 2014 WL 4081763 at *1 (E.D. Cal. 26 ///// 27 ///// 28 ///// 46 1 Aug. 19, 2014), adopted by 2014 WL 5472781 (E.D. Cal. Oct. 22, 2014).4 In that case, plaintiff 2 Mitchell claimed that his placement in punitive administrative segregation without notice or a 3 hearing violated his right to due process under the Fourteenth Amendment. Id. Mitchell filed a 4 motion for summary judgment arguing that he had a liberty interest in avoiding those restrictive 5 conditions during his segregation. Id. at *7. 6 Disagreeing, the court held that Mitchell had failed to establish that he was “placed in 7 administrative segregation as a disciplinary measure absent due process, rather than subject to 8 lockdown for institutional safety and security reasons as part of a group of inmates associated 9 with a disruptive group implicated in incidents of violence.” Mitchell, 2014 WL 4081763 at *7. 10 The court acknowledged that prison officials had not provided Mitchell with a hearing within 72 11 hours of his segregation or his placement on modified programming. Id. In addition, the court 12 acknowledged that prison officials had not provided Mitchell with notice or informed him of the 13 reasons for his placement in segregation or on modified programming before it took place. Id. 14 The court recognized that prison officials had not allowed Mitchell outdoor exercise for seven 15 months or access to the canteen, packages, or the law library. Id. Nevertheless, the court 16 reasoned that Mitchell had not established that “the due process requirements that apply to 17 individual prison disciplinary actions also apply to placement in a unit with restrictive program 18 modification.” Id. 19 Similarly, in this case, prison officials never afforded plaintiff a prison disciplinary 20 hearing nor was he found guilty of a prison disciplinary violation. Nor did prison officials 21 ultimately validate plaintiff as a member of the “Two-Five” group. Nonetheless, between 22 October 6, 2009, and May 25, 2010, prison officials did not allow plaintiff outdoor exercise and 23 other privileges. However, as in Mitchell, defendants here have offered evidence in opposition to 24 plaintiff’s motion for summary judgment demonstrating that the conditions of plaintiff’s 25 4 26 27 28 In his declaration, plaintiff identifies inmate Mitchell as his cellmate. (Gomez Decl. ¶ 21c, Pl.’s Ex. B (group administrative appeal).) In Mitchell’s complaint he too identified Gomez as his cellmate. (Compl. at 9.) Inmate Mitchell was actually being confined in his original cell because he was one of two inmates who was already housed in the upper C section of Building 2. (Id.) It appears from the evidence before the court that plaintiff Gomez and Mitchell were cellmates from approximately October 6, 2009, until January 12, 2010. (Defs.’ Ex. O, Pl.’s Decl. ¶ 49.) 47 1 confinement (and other inmates identified as alleged “Two-Five” group members) was part of the 2 prison’s modified programming and was not a placement in administrative segregation. (Defs.’ 3 Ex. A at A05.) 4 Specifically, the evidence presented by defendants on summary judgment establishes that 5 at any time a prison facility or housing unit therein can be operating under more than one 6 modified program, each of which is designed to address a specific security risk. (McDonald 7 Decl. ¶ 35.) Here, there were two modified programs – one affecting suspected “Two-Five” 8 group members and the other affecting the remaining prison population. (Id.) Prison officials 9 found it imperative to move suspected “Two-Five” members as a group to Housing Unit B-2 “to 10 allow better integrity of the investigation and to allow the rest of the inmate population to 11 positively program with minimal interference.” (Defs.’ Ex. A at A42.) Prison officials had 12 identified plaintiff as a “Two-Five” group member or affiliate based on a confidential memo, 13 dated July 8, 2008, and housed him with other suspected “Two-Five” members. (Defs.’ Ex. B-1– 14 B-3, Defs.’ Ex. A-5.) 15 Although inmates identified as being “Two-Five” members were separated from other 16 Facility B inmates, defendants’ evidence shows that those “Two-Five” members remained on 17 modified program status. (Defs.’ Ex. A-5.) To be sure, portions of the modified program at issue 18 applied only to specific groups of inmates, but the restrictions were not arbitrarily imposed. 19 Based on the information Warden McDonald had received, he believed that: (1) there were 20 unknown numbers of unidentified inmates involved in the recent violent events within the prison; 21 (2) the investigators had properly identified the responsible groups of inmates (i.e. “Two-Five” 22 members or associates housed on Facility B); (3) the only way to ensure the safety of staff and 23 inmates and the security of the institution was to remove or isolate this target group; and (4) the 24 consequences for failing to act would have been dire. (McDonald Decl. ¶ 60.) Of note, as prison 25 officials removed alleged “Two-Five” members from the remainder of the Facility B population, 26 there was a marked decrease in violence. (Id. ¶ 65.) 27 28 In considering plaintiff’s motion for summary judgment, the court is required to believe defendants’ evidence and draw all reasonable inferences from the facts before the court in 48 1 defendants’ favor. Drawing all such reasonable inferences in defendants’ favor, the court finds 2 that they have submitted evidence sufficient to create a genuine issue of material fact with respect 3 to plaintiff’s claim that they violated his right to due process under the Fourteenth Amendment. 4 Specifically, a reasonable juror could conclude that prison officials subjected plaintiff to a 5 modified program for institutional safety and security reasons and therefore, they did not need to 6 provide him with any procedural due process protections, such as advance notice, a timely 7 hearing, and periodic review of his confinement. See Hayward v. Procunier, 629 F.2d 599 (9th 8 Cir. 1980). In addition, just as was the case of the plaintiff in Mitchell, plaintiff here has not 9 presented evidence or legal argument establishing that the procedural due process protections 10 afforded to individual prisoners placed in administrative segregation as a form of discipline, apply 11 to groups of prisoners moved to a separate unit and subjected to more restrictive modified 12 programming.5 See Mitchell, 2014 WL 4081763 at *7-8. 13 Accordingly, for all of the reasons set forth above, the undersigned concludes that 14 plaintiff’s motion for summary judgment on his Fourteenth Amendment claims should be denied. 15 The court turns now to defendants’ motion for summary judgment in their favor on 16 plaintiff’s Fourteenth Amendment claims. The court finds that defendants have met the initial 17 burden of demonstrating that there is no genuine issue of material fact with respect to the 18 plaintiff’s Fourteenth Amendment claims. Specifically, defendants’ evidence demonstrates that 19 prison officials initially placed Facility B at HDSP on a modified program on September 18, 20 2009, in response to two coordinated, simultaneous stabbing incidents on September 17, 2009, 21 that occurred on opposite ends of the Facility B exercise yard. (McDonald Decl. ¶¶ 2-3.) Over 22 the course of correctional staff investigation it was discovered that the attacks were part of a 23 coordinated effort by the “Two Five” group to systemically murder or otherwise remove sex 24 5 25 26 27 28 The court observes that according to plaintiff’s own evidence, prison officials informed him that he was not being placed in administrative segregation and was not due the same privileges and procedures provided to inmates confined in administrative segregation. (Pl.’s Ex. B (group administrative appeal and prison officials’ responses thereto)). Only after prison officials completed their investigation into threats against other inmates and staff in May 2010 did they move the suspected “Two-Five” members from Facility B to administrative segregation. (Defs.’ Ex. A44.) 49 1 offenders from Facility B. (Id. ¶ 6.) Correctional staff also discovered information indicating 2 that the “Two-Five” group planned to continue to attack inmates who were convicted sex 3 offenders every time prison officials returned Facility B to normal programming until they (the 4 “Two Five” members) were transferred to another institution. (Defs.’ Ex. A at A42.) As noted 5 above, prison officials had identified plaintiff as a “Two-Five” group member or affiliate based 6 on a confidential memo, dated July 8, 2008, and housed him with other suspected “Two-Five” 7 members. (Defs.’ Ex. B-1–B-3, Defs.’ Ex. A-5.) 8 Based upon the reports Warden McDonald received, he and his staff believed that the 9 “Two-Five” modified program at issue: (1) was necessary to protect the lives of correctional staff 10 and inmates because of significant and credible threats of continued violence; (2) was a response 11 to severe and unusually high levels of violence on Facility B; (3) was designed solely to protect 12 the lives and safety of inmates and correctional staff members, who the warden believed were in 13 imminent danger of violent assaults; (4) did not last any longer than was necessary to protect the 14 lives and safety of inmates and correctional staff; (5) was not intended to prejudice or harass any 15 inmate; and (6) did not violate any statutory or constitutional rights. (McDonald Decl. ¶ 66; 16 Gower Decl. ¶ 17, Davey Decl. ¶ 8, Van Leer Decl. ¶ 18.) In this regard, according to the 17 evidence submitted by defendants on summary judgment, prison officials did not use the 18 modified programming as a form of individual punishment of plaintiff based on his conduct. 19 The Ninth Circuit Court of Appeals has made clear that the prisoners are not entitled to 20 procedural due process rights, such as notice and a hearing, prior to or during a lockdown if there 21 is a state of emergency at the prison. See Hayward v. Procunier, 629 F.2d 599 (9th Cir. 1980). In 22 Hayward, prisoners of the East Block of San Quentin State Prison filed a civil rights action 23 claiming they were entitled procedural due process in connection with a five-month prison 24 lockdown. Id. They urged that a lockdown lasting more than a short time without notice and a 25 hearing of some sort deprived them of a protected liberty interest. Id. at 601. The Ninth Circuit 26 rejected that argument, holding that the prisoners had no due process right to a hearing during 27 their five-month lockdown in light of the state of emergency that had existed at the prison. 28 Hayward, 629 F.2d at 603. The Ninth Circuit noted that between 1970 and 1974, the rate of 50 1 violence at San Quentin State Prison had more than tripled, and that prison officials responded by 2 locking down the prison several times. Id. at 600. The Ninth Circuit explained that the prisoners 3 were not “being subjected to treatment wholly outside the foreseeable consequences of criminal 4 conviction, such as commitment to a mental institution in the absence of a mental disease or 5 defect.” Id. at 601-02. The court emphasized that in cases where prisoners are entitled to a due 6 process hearing, the subject of the hearing was the fate of an individual prisoner and his conduct 7 or conditions. Id. at 602 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). In contrast, in 8 Hayward the court observed that, “the question to be decided is whether the degree of emergency 9 justifies a continuation of the lockdown – a determination involving a high degree of policy and 10 11 prediction.” Id. Although the Ninth Circuit decided Hayward before the Supreme Court decided Sandin v. 12 Connor, which altered the methodology for evaluating procedural due process claims brought by 13 prisoners, Hayward is still good law. As the another California district court recently explained in 14 a decision rejecting a prisoner’s due process claim challenging his modified programming: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First, Hayward has not been overruled, and it has been applied post Sandin in cases raising due process claims. Second, Hayward’s conclusion that the increased security represented by a lockdown is a “foreseeable consequence of a criminal conviction” indicates that a modified program in response to assaults by inmates on staff and other inmates, even one lasting for a few months, is not an atypical and significant hardship relative to the ordinary incidents of prison life. Third, Sandin receded from the due process methodology of Hewitt v. Helms, 459 U.S. 460 (1983) in part because “the Hewitt approach” had “led to the involvement of federal courts in the dayto-day management of prisons,” which ran “counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” To counteract this “undesirable effect,” the Sandin Court “return[ed] to the due process principles” reflected in Wolff and Meachum v. Fano, 427 U.S. 215 (1976). Consistent with the due process principles later articulated in Sandin, the Ninth Circuit relied on Wolff and Meachum to support its due process analysis in Hayward, and it also took into account the need to afford deference to prison officials in making decisions respecting the continuance of lockdown and the pace of return to normal operations. Finally, Sandin did not invalidate the distinction that the Ninth 51 1 2 Circuit drew in Hayward between a lockdown imposed on a group of inmates in response to inmate assaults and an individualized disciplinary determination affecting a particular inmate’s conditions of confinement. 3 4 5 Hernandez v. Cate, 918 F. Supp. 2d 987, 1013-1014 (C.D. Cal. 2013) (internal citations omitted). Of course, in considering defendants’ motion for summary judgment with respect to 6 plaintiff’s due process claim, the court is required to believe plaintiff’s evidence and draw all 7 reasonable inferences from the facts before the court in his favor. Drawing all reasonable 8 inferences from that evidence in plaintiff’s favor, the court finds that plaintiff has failed to submit 9 sufficient evidence to create a genuine issue of material fact with respect to his claim that he had 10 a protected liberty interest in avoiding his challenged confinement. Specifically, plaintiff has 11 failed to establish that he was subjected to anything more than modified, albeit harsher, 12 programming. That prison officials suspected plaintiff in this case of being a member of the 13 “Two-Five” group and kept him and other suspected group members on a more restrictive 14 modified program than other inmates, does not change the applicability of the Hayward decision 15 and the analysis set forth therein to plaintiff’s due process claim. 16 Following the decision in Hayward, district courts in the Ninth Circuit have consistently 17 held that subjecting specific groups of prisoners to lockdowns or harsher modified programs does 18 not require prison officials to provide those specific groups of prisoners with procedural due 19 process protections. Thus, in Corona v. Harrington, No. CV F 08-0237 LJO DLB, 2010 WL 20 318555 (E.D. Cal. Jan. 20, 2010), the plaintiffs were general population cellmates in Building 5 at 21 Kern Valley State Prison with the highest privilege group classification. Id. at *1. After a staff 22 attack in May 2006, which plaintiffs were not involved in, prison officials placed Buildings 1-8 23 on a lockdown and interviewed all inmates regardless of ethnicity or gang affiliation. Id. Prison 24 officials placed the inmates actually involved in the attack in administrative segregation. Id. In 25 June 2006, prison officials concluded that the attack involved only Southern Hispanics or 26 Mexican Nationals and kept the Hispanic inmates on lockdown but allowed Black, White, and 27 “Other” inmates to return to normal programming with restoration of all privileges. Id. at *2. 28 Prison officials also allowed Hispanic inmates assigned to the substance abuse program in 52 1 Building 5 and age 35 and older (not plaintiffs) to return to normal privileges. Id. By September 2 2006, prison officials had allowed all inmates except Southern Hispanic inmates to return to 3 normal programming because additional incidents involving Southern Hispanics had taken place. 4 Id. At that point, prison officials also moved plaintiffs from Building 5 to Building 9. Id. In 5 October 2006, the warden approved dayroom access, telephone calls, and a normal shower 6 program for Southern Hispanics in Buildings 1-4 but kept Southern Hispanics in Buildings 6-8, 7 including plaintiffs, on more restrictive programs. Id. Effective November 2006, prison officials 8 lifted the lockdown and allowed all Southern Hispanics to return to normal program. Id. at *3. 9 The plaintiffs filed a civil rights action in which they claimed that they had been deprived of a 10 protected liberty interests without due process of law because they did not receive a hearing or 11 other individualized determination prior to or during defendants’ subjecting them to the modified 12 programming. Id. at *3. 13 Relying on the Ninth Circuit’s decision in Hayward, the court held that the key to 14 plaintiffs due process claim was whether the degree of emergency justified continuation of the 15 lockdown. See Corona, 2010 WL 318555 at *9. In rejecting plaintiffs’ due process claim, the 16 court explained: 17 25 The procedural due process claim rests on the conclusory claim that no emergency existed to justify a five-month lockdown. Plaintiffs do not appear to contest the initial lockdown based on the staff attack. They appear to contest the continuation of lockdown of Hispanic inmates under age 35. As noted above, the continued lockdown applied to a limited prison population and not to Hispanics as a whole. Plaintiffs themselves refer to the lockdown inmates as a “sub-group.” Decisions to maintain the lockdown for the sub-group “is not a disciplinary measure, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates” as well as staff. The maintenance of the lockdown for the “sub-group” is akin to assigning suspected gang affiliates to particular prison housing units which “is essentially a matter of administrative discretion.” In the absence of challenge to their Southern Hispanic affiliation, the FAC fails to establish a procedural due process violation for the continued lockdown of Hispanic inmates under age 35. 26 Corona, 2010 WL 318555 at *9. See also Mitchell, 2014 WL 4081763 at *8 (“This analysis does 27 not turn on the fact that the lockdown at issue in Hayward was institution-wide. It applies equally 28 to the collective lock-down of inmates in a particular unit of a prison.”). 18 19 20 21 22 23 24 53 1 In Negrete v. Lewis, No. C 11-3436 RS (PR), 2012 WL 4903001 (N.D. Cal. Oct. 16, 2 2012), aff’d 585 Fed. Appx. 364 (9th Cir. Oct. 7, 2014), another California district court has 3 rejected a similar due process claim brought by a prisoner in connection with lockdowns and 4 modified programming with respect to two rival prison gangs. In that case two violent incidents 5 had occurred at Pelican Bay State Prison between inmates of the Northern Hispanic and Southern 6 Hispanic gangs. Id. at *1. Prison officials implemented lockdowns and modified programs 7 designed to separate the two gangs. Id. Further violence between the two gangs thwarted efforts 8 to terminate the restrictive programming. Id. Plaintiff transferred into the prison, and prison 9 officials classified him as a Southern Hispanic inmate and immediately subjected him to the 10 modified program. Id. The plaintiff claimed that defendants violated his right to due process by 11 placing him on constant lockdown or modified programming for almost two years. Id. The court 12 held that the plaintiff had not shown a triable issue of material fact with respect to his due process 13 claim. Id. at *3. In so holding, the court explained as follows: 14 Although plaintiff did not directly participate in the incidents, his conduct is not at issue. What is at issue is whether the degree of emergency justified a continuation of the lockdown. The undisputed facts in the record show that before plaintiff arrived at Pelican Bay and during plaintiff’s stay, there were a number of incidents between the Northern Hispanic and Southern Hispanic inmates. Although plaintiff described them as “small incidents,” he nonetheless characterized some of them as assaults or riots. Because prison officials must maintain the safety of inmates, it was reasonable to implement lockdowns to separate Northern and Southern Hispanic inmates after the assaults. Here, the captain of Facility B stated that lockdowns and modified programs were implemented initially in response to a violent incident that occurred in August 2008 at Facility B’s main exercise yard. The fact that more violence occurred after the initial incident in 2008 tends to support the idea that the lockdowns were a necessary response in order to maintain prisoners’ safety during that time …. Because the lockdowns were in response to a genuine emergency and were not used as punishment, plaintiff was not owed procedural due process in the form of a hearing or otherwise before being locked down. 15 16 17 18 19 20 21 22 23 24 25 26 Id. at *3. Another California district court has rejected a similar claim by Muslim inmates who 27 maintained that prison officials denied them their right to due process when they implemented 28 modified programming without providing the inmates advance notice or an opportunity for a 54 1 hearing. See Robins v. Lamarque, No. C 02-4720 JF (PR), 2008 WL 744816 at *4 (N.D. Cal. 2 Mar. 18, 2008). In Robins, the plaintiff was housed in Facility D, a maximum-security housing 3 unit for prisoners requiring the highest security custody. Id. at 1. On October 5, 2001, prison 4 officials informed Muslim inmates that they were being placed on a modified program and 5 restricted to their cells because prison officials had learned of a plan by Muslim inmates to attack 6 prison staff. Id. In that case the district court granted summary judgment to the defendants, 7 concluding that plaintiff’s due process claim failed as a matter of law and explaining as follows: 8 In light of the undisputed evidence concerning threats of violence by Muslim inmates, there is no genuine issue of material fact as to whether the inmates had a liberty interest that triggered a right to notice. Moreover, it is clear that Plaintiff knew that the modified program had been initiated, as shown by the fact that he filed an administrative grievance on October 14, 2001, only nine days after the modified program was put in place. Prison officials responded to the grievance in November 2001 and interviewed Plaintiff after he appealed to the Second Level of Review. Prison staff also responded to Plaintiff’s separate appeal as a member of a group of inmates who filed a grievance in October 2001. 9 10 11 12 13 14 15 Id. at 5. Similarly, in the present case the evidence presented by plaintiff in response to 16 defendants’ summary judgment motion fails to create a triable issue of fact with respect to 17 whether defendants’ decision to implement and continue the Facility B modified program from 18 September 18, 2009, to June 9, 2009, was warranted in light of the undisputed evidence of 19 violence and threats of violence by suspected “Two-Five” group members that both led up to and 20 took place during the modified programming. See Hayward, 629 F.2d at 602 (the question is 21 whether the degree of emergency justified the continued lockdown); see also Furnace v. Evans, 22 No. C 06-4229 MMC (PR), 2009 WL 2511967 at *16 (N.D. Cal. Aug. 14, 2009) (granting 23 summary judgment in favor of defendants because plaintiff failed to raise a triable issue of fact 24 with respect to whether prison officials reasonably determined that prison conditions warranted 25 the implementation and continuation of a modified program), aff’d in relevant part 459 Fe. Appx. 26 630, at *1 (9th Cir. Nov. 23, 2011). 27 28 Moreover, plaintiff in this case has not established that groups of prisoners moved to a separate unit and subject to a more restrictive modified programming, such as the alleged “Two55 1 Five” group members, are entitled to the same procedural due process protections as individual 2 prisoners who are placed in administrative segregation as a form of discipline. See Hayward, 629 3 F.2d at 602 (concluding that a five-month lockdown while imprisoned was a foreseeable 4 consequence of a criminal conviction).6 5 Accordingly, for all of the reasons set forth above, the undersigned concludes that 6 defendants’ motion for summary judgment with respect to plaintiff’s Fourteenth Amendment 7 claims should be granted. 8 II. Eighth Amendment The court will now address the parties’ cross-motions for summary judgment with respect 9 10 to plaintiff’s Eighth Amendment claims against defendants for denying him outdoor exercise, 11 placing him in a cold cell, and refusing to provide him with personal hygiene items. 12 A. Outdoor Exercise 13 Prisoners have a constitutional right to outdoor exercise under the Eighth Amendment. 14 See Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) (“Exercise is one of the most basic human 15 necessities protected by the Eighth Amendment.”); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th 16 Cir. 1993). Long-term denial of outdoor exercise can rise to the level of a constitutional 17 violation. See Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979). However, it is also true that 18 “prison officials are authorized and indeed required to take appropriate measures to maintain 19 prison order and discipline and protect staff and other prisoners. . . .” LeMaire, 12 F.3d 1458. 20 In this case, even if plaintiff had carried his initial burden in support of his motion for 21 summary judgment or had raised a genuine dispute of material fact as to whether defendants 22 6 23 24 25 26 27 28 Insofar as plaintiff claims that he had a protected liberty interest in avoiding the stigma attached to him as a result of being included in the “Two-Five” modified program, his claim fails. Plaintiff is advised that “stigma alone is inadequate to affect a liberty interest” protected by the due process clause. ACLU of Nev. v. Masto, 670 F.3d 1046, 1058 (9th Cir. 2012) (citing Paul v. Davis, 424 U.S. 693, 711-12 (1976) (reputation alone without more tangible interests is not a “liberty” that triggers the procedural protections of the Due Process Clause)). See also Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991) (discussing the two ways to meet the stigma-plus test). Here, plaintiff alleges his inclusion in the modified program as an alleged “Two-Five” member or affiliate stigmatizes him because plaintiff is shunned, open to attack, and false accusations. However, plaintiff has not alleged that he suffered any other injury other to his reputation. 56 1 violated his right to outdoor exercise in opposing defendants’ motion for summary judgment, the 2 undersigned concludes that defendants are entitled to qualified immunity from plaintiff’s claims 3 based on the alleged denial of outdoor exercise. Specifically, the undersigned finds that a 4 reasonable prison official in the position of these defendants could have believed that restricting 5 plaintiff’s outdoor exercise as part of the modified programming imposed was consistent with the 6 Eighth Amendment because there was no clearly established law to the contrary. 7 In Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010), a state prisoner at CSP-Sacramento 8 claimed that prison officials denied him outdoor exercise over the course of two years during four 9 separate extended lockdown periods of three, three, four and half, and two months in duration. 10 Norwood, 591 F.3d at 1065. Prison officials had imposed the lockdowns after serious inmate 11 assaults on staff and gradually eased restrictions on specific gangs and ethnic and racial groups 12 and restored outdoor exercise to inmates who they considered less likely to cause further 13 violence. Id. Inmate-on-inmate attacks also took place during the same period of time. Id. 14 Under those circumstances the Ninth Circuit held that the prison officials named as 15 defendants in that case were entitled to qualified immunity because the right to outdoor exercise 16 in the midst of severe ongoing prison violence was not clearly established in 2002-2003. 17 Norwood, 591 F.3d at 1068. First, the court explained that the defendants were attempting to 18 restore order after several nearly lethal attacks on prison staff, and therefore, they had substantial 19 reasons for imposing the lockdowns at issue. Id. The court also explained that the right of 20 prisoners to outdoor exercise is not absolute or indefeasible in the face of prison violence, and 21 that the plaintiff had not offered any evidence to show that prison officials had imposed the 22 lockdowns punitively or in bad faith. Id. at 1068-69. The court concluded that “prison officials 23 can reasonably believe it is lawful to temporarily restrict outdoor exercise to help bring the 24 violence under control.” Id. In this regard, the court observed that prison officials must balance 25 their duty to keep inmates safe from each other with their obligation to provide outdoor exercise. 26 Id. The court noted that one prisoner had died and other correctional guards and prisoners had 27 been severely wounded, so defendants were required to act decisively to stop the violence. Id. 28 The Ninth Circuit also explained that courts grant prison officials “wide-ranging deference” when 57 1 they balance their competing obligations and do not “lightly” second guess expert judgments 2 about when to restore outdoor exercise and other programs in the face of the threats of violence. 3 Id. Based on these considerations the court in Norwood concluded that a reasonable prison 4 official could have believed that restricting a prisoner’s outdoor exercise was consistent with the 5 dictates of the Eighth Amendment because no authority had clearly established the contrary. Id. 6 at 1070. 7 Similarly, in Noble v. Adams, 646 F.3d 1138 (9th Cir. 2011), the court held that prison 8 officials were entitled to qualified immunity on a state prisoner’s claim based on the denial of 9 outdoor exercise during a lockdown following a prison riot. In Noble, an armed riot between 10 African American inmates and correctional staff took place at Substance Abuse Treatment Center 11 – Corcoran State Prison, and the warden declared a state of emergency (approved by the Director 12 of Corrections), locking down the entire prison. Id. at 1139-40. Twenty-one staff members were 13 injured, and nine were taken to the hospital following the riot. Id. at 1140. Prison officials found 14 numerous inmate-manufactured weapons on the exercise yards. Id. This riot took place one day 15 after prison officials had lifted a previous prison-wide lockdown. Id. Three months later, prison 16 officials gradually returned prisoners to normal programming in measured stages. Id. Within 17 seven months of the riot, all inmates had access to a modified program for outdoor exercise, but 18 another riot took place thereby thwarting efforts to restore full exercise privileges until several 19 months thereafter. Id. at 1141. Plaintiff Noble claimed that prison officials had violated his right 20 to outdoor exercise under the Eighth Amendment. Id. at 1141. 21 22 23 24 25 In this context, the Ninth Circuit held that it was not clearly established in 2002 – nor is it established yet [in 2011] – precisely how, according to the Constitution, or when a prison facility housing problem inmates must return to normal operations, including outside exercising, during and after a state of emergency called in response to a major riot, here one in which inmates attempted to murder staff. 26 Noble, 646 F.3d at 1143. The Ninth Circuit reiterated in Noble that prison officials are entitled to 27 “wide-ranging deference” and that courts must defer to prison officials’ judgment as long as it 28 does not manifest deliberate indifference or an intent to inflict harm. Id. The court also noted 58 1 that after the attack on the exercise yard against correctional staff, prison officials were justified 2 in declaring an emergency and imposing a lockdown, which by definition precluded typical 3 outdoor exercise, until prison officials could gradually restore it. Id. at 1144. The court observed 4 that responsible officials were constantly reviewing the lockdown to determine how and when to 5 safely lift it. Id. at 1147. In this regard, the Ninth Circuit found that prison officials were not 6 deliberately indifferent, and the lockdown was not in excess of what was necessary to restore 7 order. Id. at 1148. The court concluded that, “in 2002, it would not have been clear to a 8 reasonable officer that his or her conduct vis a vis the declaration of an emergency, the lockdown, 9 or the curtailment of use of the exercise yard was unlawful in the situation he or she confronted.” 10 11 Id. In the present case, plaintiff complains about not receiving outdoor exercise for almost 12 eight months - from October 6, 2009, until May 31, 2010. (Am. Compl. at 29.) Under the Ninth 13 Circuit’s decisions in Norwood and Noble, however, it was not clearly established in 2009 - 2010 14 how and under what circumstances prison officials were constitutionally required to provide 15 plaintiff with outdoor exercise in light of the ongoing violence at HDSP. See, e.g., Negrete v. 16 Lewis, 585 Fed. Appx. 364 (9th Cir. Oct. 7, 2014); Arline v. Gower, No. 2:11-cv-3414 WBS KJN 17 P, 2014 WL 3687497 (E.D. Cal. July 23, 2014) (prison officials were entitled to qualified 18 immunity from a prisoner’s denial of outdoor exercise claim because of the absence of 19 established law in 2011 clarifying when and under what circumstances a security-based lockdown 20 becomes unconstitutional); Crane v. McDonald, No. 2:11-cv-0663 KJM CKD P, 2014 WL 21 2716484 at *15 (E.D. Cal. June 16, 2014) (prison official was entitled to qualified immunity from 22 a prisoner’s denial of outdoor exercise claim based on the absence of established law in 2008- 23 2010 clarifying when a security-based lockdown becomes unconstitutional); Knight v. Evans, No. 24 C 06-00887 SBA (PR), 2009 WL 1916879 at *10 (N.D. Cal. July 1, 2009) (granting qualified 25 immunity to defendants because “it would not be clear to a reasonable prison official that it was 26 unlawful to temporarily curtail Plaintiff’s outdoor exercise for 144 days” given the violent 27 conditions at the prison, including attempted murder and assault on inmates and assaults on staff, 28 and discovery of contraband narcotics and weapons). 59 1 Decisions by prison officials involving when to ease prison programming restrictions “are 2 delicate ones, and those charged with them must be given reasonable leeway.” Hayward, 629 3 F.2d at 603. As in Noble, the evidence submitted on summary judgment in this case demonstrates 4 that prison officials were “continuously, prudently, and successfully looking out for the safety, 5 security, and welfare of all involved, staff and prisoners alike.” Noble, 646 F.3d at 1148. In the 6 absence of clearly established law at the time the alleged constitutional violations took place in 7 this case, the undersigned finds that defendants are entitled to qualified immunity with respect to 8 plaintiff’s Eighth Amendment outdoor exercise claim. 9 Accordingly, plaintiff’s motion for summary judgment in his favor on his Eighth 10 Amendment outdoor exercise claim should be denied, and defendants’ motion for summary 11 judgment on the basis of qualified immunity with respect to this claim should be granted. 12 B. Cold Cell 13 Freezing temperatures in a cell that pose a substantial risk of serious harm can rise to the 14 level of an Eighth Amendment violation. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 15 1980). When a prisoner challenges his cell conditions as cruel and unusual punishment, he is 16 required to allege and prove deliberate indifference on the part of prison officials. See Wilson v. 17 Seiter, 501 U.S. 294 (1991). First, a plaintiff must make an “objective” showing that his alleged 18 deprivation was “sufficiently serious” to form the basis for an Eighth Amendment violation. Id. 19 at 298. See also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (“the routine discomfort 20 inherent in the prison setting is inadequate to satisfy the objective prong of the Eighth 21 Amendment inquiry”). Second, the plaintiff must make a “subjective” showing that prison 22 officials acted “with a sufficiently culpable state of mind.” Wilson, 501 U.S. at 298. See also 23 Farmer, 511 U.S. at 837 (a prison official acts with deliberate indifference if he “knows of and 24 disregards an excessive risk to inmate health or safety; the official must both be aware of facts 25 from which the inference could be drawn that a substantial risk of serious harm exists, and he 26 must also draw the inference.”). 27 28 As to plaintiff’s motion for summary judgment on his Eighth Amendment claim concerning defendants allegedly placing him in a cold cell, the court finds that plaintiff has failed 60 1 to establish beyond dispute that the defendants inflicted cruel and unusual punishment on him. 2 Specifically, plaintiff contends that from October 6, 2009 to November 20, 2009, defendants 3 placed him in a cold cell allowing him to be clothed in only his underwear for twenty-four hours a 4 day.7 (Pl.’s Opp’n to Defs.’ Mot. for Summ. J./Cross-Mot. for Summ. J. at 26-32.) In this regard, 5 plaintiff maintains that defendants denied him a basic human need (warmth) in violation of the 6 Eighth Amendment. (Id. at 26.) 7 However, the evidence presented by plaintiff on summary judgment fails to establish that 8 defendants deprived him of adequate heating. Plaintiff primarily relies on his personal 9 declaration to satisfy the objective prong of an Eighth Amendment claim. A declaration by its 10 nature is self-serving because the party submitting it is using it to support his position. See Nigro 11 v. Sears, Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015). Of course, the court may not 12 disregard such a declaration simply based on its self-serving nature. Id. However, the court can 13 disregard such a declaration if the purported facts contained therein are beyond the declarant’s 14 personal knowledge or the declaration is lacking detailed facts and supporting evidence. Id. 15 (citing Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1059 n. 5, 1061 (9th Cir. 2002) (holding 16 that the district court properly disregarded the declaration that included facts beyond the 17 declarant’s personal knowledge and did not indicate how she knew the facts to be true) and F.T.C. 18 v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (conclusory affidavit, lacking 19 detailed facts and supporting evidence, does not create a genuine issue of material fact)); 20 Soremekun, 509 F.3d at 984 (“Conclusory, speculative testimony in affidavits and moving papers 21 is insufficient to raise genuine issues of fact and defendant summary judgment.”); see also Fed. R. 22 Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on 23 personal knowledge, set out facts that would be admissible in evidence, and show that the affiant 24 or declarant is competent to testify on the matters stated.”). 25 7 26 27 28 Plaintiff also alleges that he was given only a thin sheet. (Am. Compl. at 6 (“being placed in a cold cell with only a thin sheet”), 12 (“From 10-7-09 till 11-20-09, plaintiff only had one thin sheet….”), & 29 (“placed in a cold cell without any linen except a thin sheet.”). He clarifies in his declaration in support of his summary judgment motion that a fellow inmate had provided him with the sheet. (Pl.’s Decl. ¶ 22d.) 61 1 Here, plaintiff declares that the inside and outside walls of his cell had “absolutely no 2 insulation,” that the concrete walls kept the building “consistently cold,” and that temperatures 3 outside of HDSP during the relevant time period averaged a maximum of fifty-seven (57) degrees 4 and a minimum of thirty-one (31) degrees. (Pl.’s Decl. ¶¶ 21j & 28, Pl.’s Opp’n to Defs.’ Mot. 5 for Summ. J./Cross-Mot. for Summ. J. at 30.) However, it is not clear how plaintiff has personal 6 knowledge of either the building structure or its insulation. Nor is plaintiff’s personal 7 characterization of the cell temperature sufficient to demonstrate that no reasonable trier of fact 8 could find other than for him on his Eighth Amendment claim. Finally, even if the average 9 temperature outside of the prison ranged from 31 degrees to 57 degrees, the outside temperature 10 at HDSP has no clear bearing on the actual temperature inside of plaintiff’s cell at any given time. 11 Certainly plaintiff has failed to come forward with any evidence explaining a relationship 12 between the inside and outside temperatures. 13 On the other hand, defendants have offered evidence on summary judgment 14 demonstrating that during the wintertime, from November 1 through April of the following year, 15 all buildings at HDSP, including Facility B were maintained at sixty-eight (68) degrees in keeping 16 with the directive issued by the Governor of the State of California. (Wilkerson Decl. ¶ 3.) 17 Additionally, according to defendants’ evidence, during the summertime, which concludes on 18 October 31, HDSP facilities are required to maintain daily temperature logs of the buildings. 19 These logs record the daily temperature in each building in Facility B and the relevant logs show 20 that Facility B, Building 2 was maintained at temperatures between seventy-one (71) and seventy- 21 three (73) degrees from October 6, 2009, through October 31, 2009. (Id. ¶ 8-9; Defs.’ Ex. R.) 22 Defendants evidence on summary judgment also demonstrates that when a cell, or any 23 section of the building at HDSP has an issue with the temperature, such as the cell or section 24 getting too cold or too hot, the Engineer assigned to Facility B would receive a call for service, 25 would go to the facility to diagnose the source of the temperature variation, and correct the 26 problem, which could include replacement of parts. (Wilkerson Decl. ¶ 4.) Defendants have 27 come forward with evidence on summary judgment establishing that from October 6, 2009, 28 through May 26, 2010, there was only one call for service from Facility B, Building 2, for cell 62 1 150 on November 19, 2009 and that the heating problem was investigated and corrected by 2 November 24, 2009. (Id. ¶ 5-7; Defs.’ Ex. Q.) That same evidence establishes that there were no 3 other calls for service during that time frame, thus indicating that Facility B had no temperature- 4 related problems. (Wilkerson Decl. ¶ 10.) From October 6, 2009, through May 26, 2010, 5 plaintiff was housed in cell 246 and subsequently in cell 205, in Facility B, Building 2. (Amrein 6 Decl. ¶ 2-4; Defs.’ Ex. O.) As noted above, on plaintiff’s motion for summary judgment, the court is required to 7 8 believe defendants’ evidence and draw all reasonable inferences from the facts before the court in 9 defendants’ favor. Drawing all reasonable inferences in defendants’ favor, the court finds that 10 defendants have submitted evidence sufficient to create a genuine issue of material fact with 11 respect to plaintiff’s claim that they violated his right to be free from cruel and unusual 12 punishment under the Eighth Amendment. Specifically, a reasonable juror could conclude from 13 the evidence presented on summary judgment that plaintiff’s cell temperature from October 6, 14 2009, to November 20, 2009, ranged from sixty-eight (68) to seventy-three (73) degrees, and 15 therefore defendants did not deny him warmth as a basic human need. See Graves v. Arpaio, 623 16 F.3d 1043, 1049 (9th Cir. 2010) (Eighth Amendment does not mandate a “comfortable” 17 temperature). 18 Accordingly, the undersigned concludes that plaintiff’s motion for summary judgment in 19 his favor on his Eighth Amendment claim based on the alleged temperature in his cell should be 20 denied. 21 The court now turns to defendants’ motion for summary judgment on this same claim. 22 Based on defendants’ evidence described above, the court finds that defendants have met their 23 initial burden of demonstrating that there is no genuine issue of material fact with respect to the 24 plaintiff’s Eighth Amendment claim based on the temperature of his cell. Specifically, 25 defendants’ evidence demonstrates that they provided plaintiff with adequate heating in his cell 26 from October 6, 2009 to November 20, 2009, in accordance with the requirements of the Eighth 27 Amendment. See Graves, 623 F.3d at 1049. 28 ///// 63 Of course, on defendants’ motion for summary judgment the court is required to believe 1 2 plaintiff’s evidence and draw all reasonable inferences from the facts before the court in 3 plaintiff’s favor. Drawing all reasonable inferences in plaintiff’s favor, the court finds that 4 plaintiff has failed to submit evidence on summary judgment sufficient to create a genuine issue 5 of material fact with respect to his claim that defendants placed him in a cold cell in violation of 6 the Eighth Amendment. In opposing defendants’ motion for summary judgment on this claim, plaintiff merely 7 8 refers this court to his motion for summary judgment and evidence submitted in support thereof. 9 Again, however, although plaintiff has submitted declarations attesting to how consistently cold it 10 was in his cell, he has not submitted evidence in the form of objective temperature readings from 11 inside the building to indicate the actual temperature in his cell during the time frame in question. 12 Several courts in the Ninth Circuit, including this one, have rejected similarly unsupported 13 claims. 14 For instance, in Jacobs v. Quinones, No. 1:10-cv-02349 AWI JLT (PC), 2015 WL 15 4755956 (E.D. Cal. Aug. 11, 2015), the plaintiff claimed that the defendant subjected him to an 16 in-cell temperature that was “cold and freezing being that Plaintiff was denied clothing and linen 17 to wrap or warm himself with” for more than thirty days. Id. at *4. In moving for summary 18 judgment in that case the defendants presented evidence showing that during the relevant time the 19 temperature in plaintiff’s cell was maintained in the mid-70s and therefore, they did not subject 20 him to a substantial risk of serious harm to his health. Id. at *5. In light of that evidence the 21 court granted defendant’s motion for summary judgment on plaintiff’s Eighth Amendment claim, 22 explaining: As to the temperature within his cell, Plaintiff only alleges that it was “freezing” and “cold.” The First Amended Complaint8 does not specifically quantify in degrees the temperature in Plaintiff's cell of which he complained, nor does it explain upon what he was basing his terms of “freezing” and “cold” aside from his impression of the temperature he perceived via his skin. Plaintiff may have 23 24 25 26 27 28 8 In Jacobs, the plaintiff failed to file an opposition to defendant’s motion for summary judgment and therefore the court looked to the allegations of plaintiff’s amended complaint, which may be utilized in attempting to establish the existence of a factual dispute. See Jacobs, 2015 WL 4755956 at *6. 64 1 2 3 4 5 6 perceived his cell as being freezing cold, but his perception does not qualify as evidence of an objective element that was likely to cause him harm. Further, while Plaintiff alleges a number of symptoms that he attributes to the conditions of his confinement, including the temperature of his cell, his allegations fail to show that he is qualified to opine that the temperature of his cell in the timeframe in question caused any medical sequela. Fed. R. Evid. 701, 702. Given the sparsity of amenities provided while on property restriction, it is understandable that Plaintiff may have perceived the temperature to have been lower than it actually was, but this is not admissible evidence to show that the temperature was anywhere near “freezing” (32°). 7 8 Id. at *6. See also Garland v. Stanley, No. 1:12-cv-01755 AWI MJS (PC), 2015 WL 1513635 at 9 *7 (E.D. Cal. Mar. 30, 2015) (granting summary judgment in favor of defendants because 10 “[a]lthough plaintiff claims that temperatures inside the facility were ‘very cold’ and ‘freezing,’ 11 he provides no objective indication, or even estimate, of the actual temperature in or outside of 12 the institution on that date . . . . The absence of more specific information about the temperature 13 or its effects on Plaintiff prevents this court from finding that a deprivation of blankets and 14 adequate clothing overnight amounts to an Eighth Amendment violation.”); Viera v. Lewis, No. C 15 12-1497 RS (PR), 2014 WL 3853142 at *4 (N.D. Cal. Aug. 4, 2014) (plaintiff presented no 16 evidence precluding summary judgment because his “generalized contention that his cell is 17 ‘oppressively hot or cold’ is far too vague and undetailed to raise a genuine dispute of material 18 fact. Moreover, defendants have provided evidence with such specifics.”). 19 Even if plaintiff here could satisfy the objective prong with respect to this Eighth 20 Amendment claim either in support of his own motion for summary judgment or by raising a 21 genuine issue of material fact in opposition to defendants’ motion for summary judgment, he has 22 not presented any evidence showing that defendants had a subjective intent or desire to keep 23 plaintiff in a cold cell. It is well established that cruel and unusual punishment claims require the 24 court to inquire into a prison official’s state of mind. See Wilson, 501 U.S. at 299. Here, the 25 court finds no evidence presented in connection with the pending summary judgment motions that 26 supports plaintiff’s claim that defendants intentionally denied him adequate warmth in reckless 27 disregard to a substantial risk of serious harm to plaintiff. Farmer, 511 U.S. at 835. Plaintiff’s 28 conclusory contentions about the “obviousness of the risk” to him because defendants saw him in 65 1 his underwear and sandals prior to moving him to Facility B, Building 2 are not enough to 2 establish that defendants acted with the requisite culpable state of mind. See Nelson v. Pima 3 Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996) (“The mere existence of a scintilla of evidence is 4 not enough to create a genuine issue of material fact in order to preclude summary judgment.”) 5 (internal quotation marks omitted). Accordingly, the undersigned concludes that defendants’ motion for summary judgment in 6 7 their favor on plaintiff’s Eighth Amendment claim based on the alleged temperature in his cell 8 should also be granted. 9 C. Personal Hygiene Items 10 Prisoners have a constitutional right to access personal hygiene items under the Eighth 11 Amendment. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Toussaint v. McCarthy, 12 801 F.2d 1080, 1107 (9th Cir. 1986) (prison officials must provide inmates with basic human 13 needs, including sanitation.). However, only those deprivations denying “the minimal civilized 14 measure of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment 15 violation.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 16 In this case, the parties dispute whether defendants forced plaintiff to go without personal 17 hygiene items, including soap, toothbrush, toothpaste, and toilet paper for a four day period.9 18 However, plaintiff’s claim that defendants temporarily deprived him of hygiene supplies as a 19 matter of law does not rise to the level of an Eighth Amendment violation. See, e.g., Murillo v. 20 Bueno, No. 1:12-cv-00095 LJO DLB PC, 2013 WL 1731393 at *1-*2 (E.D. Cal. Apr. 22, 2013) 21 (prisoner not provided with toothbrush, toothpaste, soap, toilet paper, or deodorant for 22 approximately five days while housed in holding cell failed to state a cognizable Eighth 23 Amendment claim); Lopez v. Cate, No. 1:10-cv-01773 AWI SKO PC, 2013 WL 239097 at *8 24 (E.D. Cal. Jan. 22, 2013) (“the deprivation of a towel and soap for approximately four days, and 25 the deprivation of toilet paper, a toothbrush, and tooth powder for approximately seven days do 26 27 28 9 Plaintiff acknowledges in his complaint that he received a small amount of toilet paper as well as a grievance form from other inmates in Building 2 on his second day of what he characterizes as “segregation.” (Am. Compl. at 11.) 66 1 not rise to the level of an Eighth Amendment violation.”); Stansbury v. U.S. Gov’t, No. 1:09-cv- 2 01043 DLB PC, 2010 WL 2079727 at *2 (E.D. Cal. May 21, 2010) (“Deprivation of personal 3 hygiene items, laundry service, and dinner over four days does not rise to the level of a 4 deprivation that satisfies the objective prong of deliberate indifference in violation of the Eighth 5 Amendment.”); see also Williams v. Delo, 49 F.3d 442, 444-45 (8th Cir. 1995) (denial of 6 toothbrush, toothpaste, soap, and deodorant for four days was not a deprivation of the minimal 7 civilized nature of life’s necessities); Harris v. Fleming, 839 F.2d 1232, 1234-36 (7th Cir. 1988) 8 (no constitutional violation where an inmate was deprived of soap, toothbrush, and toothpaste for 9 ten days). 10 Accordingly, the undersigned concludes that plaintiff’s Eighth Amendment claim based 11 on the alleged denial of access to personal hygiene items for a period of four days should be 12 dismissed for failure to state a cognizable claim for relief. 13 14 OTHER MATTERS Also pending before the court are plaintiff’s requests to exclude certain evidence. First, 15 plaintiff has filed a motion to exclude Warden McDonald’s declaration because defendants 16 purportedly never disclosed Warden McDonald as a key witness in this case after multiple 17 discovery requests from plaintiff had asked them to do so. Plaintiff cites Rule 37(c)(1) of the 18 Federal Rules of Civil Procedure in support of his request to exclude the declaration of Warden 19 McDonald. (Doc. No. 78) 20 Plaintiff’s request is without merit. Under Rule 37(c)(1) of the Federal Rules of Civil 21 Procedure, a party that fails to disclose information required by Rule 26(a) or 26(e) without 22 substantial justification is not allowed to use the evidence on a motion, at a hearing, or at trial. 23 See Fed. R. Civ. P. 37. As an initial matter, the parties are exempt from initial disclosure 24 requirements in this case. See Fed. R. Civ. P. 26(a)(1)(B)(iv). Moreover, to the extent plaintiff 25 believed that defendants had not adequately responded to his discovery requests inquiring about 26 potential defense witnesses, his recourse was to file a motion to compel a response with this court 27 before the close of discovery. To be sure, plaintiff filed a motion to compel in this case, but as 28 this court stated in its order denying the motion, plaintiff had not adequately informed the court 67 1 which of his discovery requests were the subject of his motion to compel and why he believed 2 that defendants’ responses were deficient. (Doc. No. 71) This court will not now exclude 3 evidence submitted by defendants on summary judgment simply because plaintiff failed to 4 discover it prior to its presentation. Finally, as defense counsel observes, Warden McDonald’s 5 name appears on virtually every official document concerning the modified programming at issue 6 in this case. Plaintiff submitted many of these documents to the court in support of his own 7 motion for summary judgment. Accordingly, it appears that plaintiff was well aware of Warden 8 McDonald’s involvement with the modified programming order which he seeks to challenge here. 9 In the same motion, plaintiff also seeks to exclude defendants’ Exhibit B, which is a 10 confidential memorandum dated July 8, 2008, in which another inmate identified Gomez as a 11 member of the “Two-Five” group. (Doc. No. 78) Plaintiff contends that the defendants did not 12 identify or produce such information after multiple discovery requests from plaintiff had asked 13 them to do so. (Id.) 14 This request is also without merit. Again, insofar as plaintiff believed that defendants had 15 not adequately responded to his discovery request, his recourse was to file a properly supported 16 motion to compel with the court. Moreover, when defendants filed their motion for summary 17 judgment, they requested to file this exhibit under seal. The undersigned granted defendants’ 18 request because disclosure of the exhibit, even with redaction, would jeopardize the safety of the 19 confidential informant named therein and the security of the institution at which the informant 20 was housed. See Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003) (the statement of a confidential 21 prison informant can satisfy the “some evidence” standard with respect to a gang validation by 22 prison officials). Exclusion of this evidence from the court’s consideration on summary judgment 23 is neither warranted nor justified. 24 Finally, in his opposition to defendants’ motion for summary judgment, plaintiff seeks to 25 exclude defendants’ evidence, or estop defendants from relying on evidence, regarding the 26 “modified program” at issue in this case because plaintiff supposedly did not have reasonable 27 notice that defendants would raise an “inconsistent modified program claim” on summary 28 judgment. (Pl.’s Opp’n to Defs.’ Mot. for Summ. J./Cross-Mot. for Summ. J. at 54-59.) Plaintiff 68 1 contends that he did not raise any claims related to a modified program in his amended complaint, 2 and defendants did not mention the modified program in their answer to his complaint. (Id.) Once more, plaintiff’s request is without merit. See New Hampshire v. Maine, 532 U.S. 3 4 742, 749-51(2001) (a court may invoke judicial estoppel at its discretion); Hamilton v. State Farm 5 Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (“Judicial estoppel is an equitable doctrine 6 that precludes a party from gaining an advantage by asserting one position, and then later seeking 7 an advantage by taking a clearly inconsistent position.”). As an initial matter, in defendants’ 8 answer to plaintiff’s amended complaint, they denied all of his factual allegations. (Doc. No. 30) 9 In addition, during the discovery phase of this litigation, defendants gave plaintiff ample notice of 10 their belief that they had subjected him to a modified program and not a SCU/SPSU or 11 administrative segregation. For example, throughout defendant Davey’s responses to plaintiff’s 12 discovery requests the defendant repeatedly responded “Without waiving these objections, 13 Defendant responds that Plaintiff was not placed in segregation but was placed on a modified 14 lockdown program between October 6, 2009 through May 26, 2010.” (Pl.’s Mot. to Compel Ex. 15 B.) Defendants Vanleer, Sanders, Domondon, and Gower included identical or similar language 16 in their discovery responses. (Id. Exs. C-F, H & K.) Thus, defendants have not taken a later 17 position that is “clearly inconsistent” with any earlier litigation position taken and application of 18 the principle of judicial estoppel is not appropriate. New Hampshire, 532 U.S. at 750. Accordingly, for all of the foregoing reasons, the court will deny plaintiff’s requests to 19 20 exclude certain evidence. Also pending before the court is plaintiff’s request for judicial notice of various website 21 22 documents related to assorted diseases, which plaintiff believes highlights the risks associated 23 with him being deprived of certain personal hygiene items. (Doc. No. 79) For the reasons 24 discussed above, the court finds that the information of which plaintiff seeks that judicial notice 25 be taken is unnecessary to this court’s analysis and resolution of the motions for summary 26 judgment with respect to his personal hygiene items claim. Accordingly, the undersigned will 27 deny plaintiff’s request as unnecessary. 28 ///// 69 Finally, defendants have filed a series of evidentiary objections to plaintiff’s response to 1 2 their statement of undisputed facts and to plaintiff’s separate statement of undisputed facts. (Doc. 3 Nos. 87 & 88.) Defendants have also filed a motion to strike and objections to plaintiff’s 4 declaration and several of plaintiff’s exhibits filed in support of his motion for summary judgment 5 and his opposition to defendants’ motion for summary judgment. (Doc. No. 89) Insofar as defendants’ objections are relevant to the court’s disposition of the pending 6 7 motion for summary judgment as set forth herein, they are overruled, and defendants’ motion to 8 strike is denied. The undersigned finds it would be an abuse of discretion to refuse to consider 9 evidence offered by a pro se plaintiff at the summary judgment stage. See e.g., Jones v. Blanas, 10 393 F.3d 918, 935 (9th Cir.2004) (reversing and remanding with instructions to consider evidence 11 offered by the pro se plaintiff in his objections to the findings and recommendations). In any 12 event, given the recommendation set forth above that defendants’ motion for summary judgment 13 be granted, defendants’ evidentiary objections and motion to strike are unnecessary. 14 CONCLUSION 15 IT IS HEREBY ORDERED that: 16 1. Plaintiff’s requests to exclude certain evidence (Doc. Nos. 74 & 78) are denied; 17 2. Plaintiff’s request for judicial notice (Doc. No. 79) is denied as unnecessary; 18 3. Defendants’ evidentiary objections (Doc. Nos. 87-89) insofar as they are relevant to the 19 court’s disposition of the pending motion for summary judgment are overruled, and defendants’ 20 motion to strike (Doc. No. 89) is denied. 21 IT IS HEREBY RECOMMENDED that: 22 1. Defendants’ motion for summary judgment (Doc. No. 86) be granted as follows: 23 a. Defendants’ motion for summary judgment on plaintiff’s Fourteenth 24 Amendment Due Process claims be granted; 25 b. Defendants’ motion for summary judgment on plaintiff’s Eighth Amendment 26 claim based on the denial of outdoor exercise be granted on the basis of the 27 affirmative defense of qualified immunity; 28 ///// 70 1 c. Defendants’ motion for summary judgment on plaintiff’s Eighth Amendment 2 claim based on his placement in a cold cell be granted; 3 4 2. Plaintiff’s Eighth Amendment claim based on defendants’ alleged refusal to provide him with personal hygiene items be dismissed for failure to state a cognizable claim for relief; 5 3. Plaintiff’s motion for summary judgment (Doc. No. 74) be denied; and 6 4. This action be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within seven days after service of the objections. The parties 13 are advised that failure to file objections within the specified time may waive the right to appeal 14 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: September 14, 2015 16 17 18 19 DAD:9 gome0649.57 20 21 22 23 24 25 26 27 28 71

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