Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 1 of 18
ADRMOP,APPEAL,CONSENT,PROTO,REFSET−LB
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19−cv−02724−SK

Norbert et al v. San Francisco Sheriff's Department et al Assigned to: Magistrate Judge Sallie Kim Referred to: Magistrate Judge Laurel Beeler (Settlement) Demand: $100,000 Case in other court: 9th Circuit, 20−15341 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/20/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kenyon Norbert

represented by Yolanda Huang Law Offices of Yolanda Huang 528 Grand Avenue Oakland, CA 94610 (510) 329−2140 Fax: (510) 580−9410 Email: yhuang.law@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Montrail Brackens

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jose Poot

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marshall Harris

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Armando Carlos

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Brown

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Troy McAllister on behalf of themselves individually and others similarly situated, as a class and Subclass

represented by Yolanda Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 2 of 18

V. Defendant San Francisco Sheriff's Department
Defendant City and County of San Francisco
Defendant Vicki Hennessy San Francisco Sherifff

represented by Sabrina Michelle Berdux Office of the City Attorney City & County of San Francisco 1390 Market Street, 6th Floor San Francisco, CA 94102−4682 (415) 554−3929 Fax: (415) 554−3837 Email: sabrina.m.berdux@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn M. Murphy Office of the City Attorney 1390 Market Street 7th Floor San Francisco, CA 94102 4155543867 Fax: 4155543837 Email: kaitlyn.murphy@sfcityatty.org ATTORNEY TO BE NOTICED
Margaret W. Baumgartner City Attorney's Office City & County of San Francisco Fox Plaza 1390 Market Street, 6th Floor San Francisco, CA 94102−5408 415−554−3859 Fax: 415−554−4248 Email: margaret.baumgartner@sfcityatty.org ATTORNEY TO BE NOTICED
represented by Margaret W. Baumgartner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabrina Michelle Berdux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn M. Murphy Office of the City Attorney City & County of San Francisco Fox Plaza 1390 Market Street, 6th Floor San Francisco, CA 941025408 (415) 554−3867 Fax: (415) 554−3837 Email: kaitlyn.murphy@sfcityatty.org ATTORNEY TO BE NOTICED
represented by Sabrina Michelle Berdux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 3 of 18

Defendant Paul Miyamoto San Francisco Chief Deputy Sheriff
Defendant Captain Jason Jackson
Defendant Captain McConnell
Amicus Jonathan Abel

Kaitlyn M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Margaret W. Baumgartner (See above for address) ATTORNEY TO BE NOTICED
represented by Sabrina Michelle Berdux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Margaret W. Baumgartner (See above for address) ATTORNEY TO BE NOTICED
represented by Sabrina Michelle Berdux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Margaret W. Baumgartner (See above for address) ATTORNEY TO BE NOTICED
represented by Sabrina Michelle Berdux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlyn M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Margaret W. Baumgartner (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Philip Abel Office of the Federal Public Defender 450 Golden Gate Ave. 19th FL, Box 36106 San Francisco, CA 94102 415−436−7700 Email: Jonathan_Abel@fd.org ATTORNEY TO BE NOTICED

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 4 of 18

Date Filed 05/20/2019
05/20/2019
05/21/2019 05/23/2019 05/24/2019 06/06/2019 06/18/2019 06/27/2019
07/01/2019 07/08/2019

# Docket Text
1 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES: (1) Cruel and Unusual Denial of Outdoor Recreation: Violations of 8th and 14th amendments of U.S. Constitution and Article I, Sections 7 and 17 of the California Constitution, 15 CCR 1065; (2) Cruel and Unusual Imposition of Confinement and Denial of Out of Cell Time: Violations of 8th and 14th amendments of U.S. Constitution and Article I, Sections 7 and 17 of the California Constitution and 15 CCR 1065; Jury Trial Demanded against All Defendants, (Filing Fee: $400.00, receipt number 0971−13361834). Filed by Kenyon M. Norbert, Jr. (Attachments: #(1) Civil Cover Sheet)(Huang, Yolanda) (Filed on 5/20/2019) Modified on 5/21/2019 (tnS, COURT STAFF). (Entered: 05/20/2019)
2 Case assigned to Magistrate Judge Sallie Kim.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 6/3/2019. (bwS, COURT STAFF) (Filed on 5/20/2019) (Entered: 05/20/2019)
3 Initial Case Management Scheduling Order with ADR Deadlines: Joint Case Management Statement due by 8/12/2019. Initial Case Management Conference set for 8/19/2019 at 1:30 PM in San Francisco, Courtroom C, 15th Floor. (tnS, COURT STAFF) (Filed on 5/21/2019) (Entered: 05/21/2019)
4 Proposed Summons. (Huang, Yolanda) (Filed on 5/23/2019) (Entered: 05/23/2019)
5 Summons Issued as to Defendants City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto & San Francisco Sheriff's Department. (tnS, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/24/2019)
6 Consent to Magistrate Judge Jurisdiction filed by Kenyon Norbert. (Huang, Yolanda) (Filed on 6/6/2019) (Entered: 06/06/2019)
7 NOTICE of Appearance by Margaret W. Baumgartner − NOTICE OF APPEARANCE OF COUNSEL (Baumgartner, Margaret) (Filed on 6/18/2019) (Entered: 06/18/2019)
8 NOTICE OF MOTION & MOTION for Preliminary Injunction and Related Relief filed by Kenyon Norbert. Motion Hearing set for 8/5/2019 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Responses due by 7/11/2019. Replies due by 7/18/2019. (Attachments: # 1 Supplement Memorandum of Points & Authorities, # 2 Affidavit Declaration of Dr. Terry Kupers, # 3 Affidavit Declaration of Dr. Jamie Zeitzer, # 4 Affidavit Declaration f Armando Carlos, # 5 Affidavit Declaration of Montrail Brackens, # 6 Affidavit Declaration of Marshall Harris, # 7 Affidavit Declaration of James McFarland, # 8 Affidavit Declaration of Kenyon Norbert, # 9 Affidavit Declaration of Jose Poot, # 10 Affidavit Declaration of Candido Zayas, # 11 Affidavit Declaration of Yolanda Huang)(Huang, Yolanda) (Filed on 6/27/2019) (Entered: 06/27/2019)
9 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge by 7/8/2019. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (mklS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department.. (Baumgartner, Margaret) (Filed on 7/8/2019) (Entered: 07/08/2019)

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 5 of 18

07/11/2019
07/18/2019
07/19/2019 07/19/2019 07/22/2019 07/23/2019 07/23/2019 07/25/2019 08/01/2019

11 OPPOSITION/RESPONSE (re 8 MOTION for Preliminary Injunction ) OPPOSITION AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION filed byCity and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Attachments: # 1 Declaration Kevin McConnell, # 2 Declaration Matthew Freeman, # 3 Exhibit Exhibit A to Matthew Freeman Declaration)(Baumgartner, Margaret) (Filed on 7/11/2019) (Entered: 07/11/2019)
12 REPLY (re 8 MOTION for Preliminary Injunction ) filed byMontrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: # 1 Declaration Dr. Terry Kupers, # 2 Declaration Armando Carlos, # 3 Declaration Yolanda Huang)(Huang, Yolanda) (Filed on 7/18/2019) (Entered: 07/18/2019)
13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options filed by Plaintiffs (Huang, Yolanda) (Filed on 7/19/2019) (Entered: 07/19/2019)
14 NOTICE of Appearance by Sabrina Michelle Berdux − NOTICE OF APPEARANCE OF COUNSEL (Berdux, Sabrina) (Filed on 7/19/2019) (Entered: 07/19/2019)
15 STIPULATION TO EXTEND TIME TO RESPOND TO 1 COMPLAINT filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Berdux, Sabrina) (Filed on 7/22/2019) (Entered: 07/22/2019)
16 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options ADR CERTIFICATION BY PARTIES AND COUNSEL (Berdux, Sabrina) (Filed on 7/23/2019) (Entered: 07/23/2019)
17 REPLY (re 8 MOTION for Preliminary Injunction ) − [Correction of Docket 12] − (Memorandum of Points and Authorities) filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 7/23/2019) (Entered: 07/23/2019)
18 ORDER REGARDING JUDICIAL SITE VISITS. Telephone Conference set for 8/1/2019 08:00 AM in San Francisco, Chambers/Courtroom C before Magistrate Judge Sallie Kim. Signed by Magistrate Judge Sallie Kim on 7/25/2019. (mklS, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)
19 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephone Conference held on 8/1/2019. The Court and counsel discuss scheduling and logistics for the site visits. Counsel shall continue to meet and confer regarding the video recording and accessibility of the materials after the site visits. If there are still outstanding issues, each side may file a four page letter brief by 8/9/2019 and the Court will resolve it. The audio recording of this proceeding is sealed by the Court. (Sealed FTR Time: 8:01−8:13.)

Attorney for Plaintiffs: Yolanda Huang. Attorney for Defendants: Sabrina Berdux; Margaret Baumgartner.

08/01/2019 08/05/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 8/1/2019) Modified on 8/5/2019 (mklS, COURT STAFF). (Entered: 08/01/2019)
20 *Document Sealed at the Court's direction.* STIPULATION WITH PROPOSED ORDER re 3 Initial Case Management Scheduling Order with ADR Deadlines, To Continue Case Management Conference and Extend Accompanying Dates filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 8/1/2019) Modified on 8/2/2019 (mklS, COURT STAFF). (Entered: 08/01/2019)
21 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Motion Hearing held on 8/5/2019 re 8 MOTION for Preliminary Injunction filed by Kenyon Norbert. Argument heard. The Court may order further briefing after the site visits are completed. (FTR Time: 10:18−10:44.)
Attorney for Plaintiffs: Yolanda Huang.

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 6 of 18

08/05/2019 08/07/2019 08/09/2019
08/12/2019 08/13/2019 08/14/2019 08/15/2019
08/19/2019 08/22/2019

Attorneys for Defendants: Kaitlyn Murphy; Sabrina Berdux; Margaret Baumgartner.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 8/5/2019) Modified on 3/4/2020: Matter transcribed by Peggy Schuerger (AdHoc Reporting). (rjdS, COURT STAFF). (Entered: 08/05/2019)
22 ORDER by Magistrate Judge Sallie Kim granting 20 Stipulation to Continue Case Management Conference and Extend Accompanying Dates. Case Management Statement due by 9/23/2019. Initial Case Management Conference reset for 9/30/2019 01:30 PM in San Francisco, Courtroom C, 15th Floor. (mklS, COURT STAFF) (Filed on 8/5/2019) (Entered: 08/05/2019)
23 PDF with attached Audio File. Court Date & Time [ 8/5/2019 10:17:58 AM ]. File Size [ 12536 KB ]. Run Time [ 00:26:07 ]. (courtspeak). (Entered: 08/07/2019)
25 *Document Sealed at the Court's direction.* Letter from Plaintiffs RE: VIDEO, AUDIO PHOTOGRAHIC RECORDINGS OF JUDICIAL SITE VISIT OF SAN FRANCISCO COUNTY JAIL 4 AND COUNTY JAIL 5. (Attachments: # 1 Proposed Order RE: VIDEO, AUDIO PHOTOGRAHIC RECORDINGS OF JUDICIAL SITE VISIT OF SAN FRANCISCO COUNTY JAIL 4 AND COUNTY JAIL 5)(Huang, Yolanda) (Filed on 8/9/2019) Modified on 8/13/2019 (mklS, COURT STAFF). (Entered: 08/09/2019)
26 ORDER REGARDING PROTECTIVE ORDER. Signed by Magistrate Judge Sallie Kim on 8/12/2019. (mklS, COURT STAFF) (Filed on 8/12/2019) (Entered: 08/12/2019)
27 *Document Sealed at the Court's direction.* Letter from Plaintiffs Supplemental Re Site Visit. (Huang, Yolanda) (Filed on 8/13/2019) Modified on 8/13/2019 (mklS, COURT STAFF). Modified on 8/13/2019 (mklS, COURT STAFF). (Entered: 08/13/2019)
28 CLERK'S NOTICE Setting Telephone Conference: Notice is given that a Telephone Conference is set for 8/15/2019 08:00 AM in San Francisco, Chambers before Magistrate Judge Sallie Kim. The Court will circulate dial−in information to counsel through separate email. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 8/14/2019) (Entered: 08/14/2019)
29 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephone Conference held on 8/15/2019. The Court and counsel discuss further logistics for the site visits. The audio recording of this proceeding is sealed by the Court. (Sealed FTR Time: 8:01−8:10.)
Attorney for Plaintiffs: Yolanda Huang. Attorney for Defendants: Sabrina Berdux.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 8/15/2019) (Entered: 08/15/2019)
30 CLERK'S NOTICE Setting Telephone Conference: Notice is given that a Telephone Conference is set for 8/22/2019 08:00 AM in San Francisco, Chambers before Magistrate Judge Sallie Kim. The Court will circulate dial−in information to counsel by separate email. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
31 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephone Conference held on 8/22/2019. The Court and counsel discuss follow up issues from the site visits. A written order will issue. (FTR Time: 8:01−8:16.)
Attorney for Plaintiff: Yolanda Huang. Attorneys for Defendants: Sabrina Berdux; Kaitlyn Murphy.

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 7 of 18

08/22/2019 08/26/2019 08/28/2019 08/28/2019 08/29/2019 08/30/2019
09/04/2019
09/04/2019 09/05/2019 09/10/2019
09/12/2019 09/12/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 8/22/2019) (Entered: 08/22/2019)
32 ORDER ESTABLISHING EVIDENTIARY PROCEDURES. Evidentiary Hearing tentatively set for 10/9/2019 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Signed by Magistrate Judge Sallie Kim on 8/22/2019. (mklS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
33 Letter Re Modifications to Scheduling On Evidentiary Procedures. (Attachments: # 1 Proposed Order Modifying Schedule Re: Preliminary Injunction Motion Dates)(Huang, Yolanda) (Filed on 8/26/2019) (Entered: 08/26/2019)
34 ORDER MODIFYING EXPERT WITNESS SCHEDULE. Evidentiary Hearing reset for 10/23/2019 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Signed by Magistrate Judge Sallie Kim on 8/28/2019. (mklS, COURT STAFF) (Filed on 8/28/2019) (Entered: 08/28/2019)
35 RESPONSE re 32 Order,, Set Hearings, Plaintiffs' Proposed Questions to Defendant San Francisco County Sheriff's Department by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 8/28/2019) (Entered: 08/28/2019)
36 QUESTIONS TO DEFENDANTS REGARDING JAIL SITE VISITS. Signed by Magistrate Judge Sallie Kim on 8/29/2019. (mklS, COURT STAFF) (Filed on 8/29/2019) (Entered: 08/29/2019)
37 DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS COMPLAINT filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. Motion Hearing set for 10/7/2019 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Responses due by 9/13/2019. Replies due by 9/20/2019. (Berdux, Sabrina) (Filed on 8/30/2019) (Entered: 08/30/2019)
38 ORDER SETTING HEARING DATE as to 8 MOTION for Preliminary Injunction and 37 MOTION to Dismiss DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS COMPLAINT. Motion Hearing set for 11/18/2019 01:30 PM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Signed by Magistrate Judge Sallie Kim on 9/4/2019. (mklS, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
39 Discovery Letter Brief for Extension for Responses to Questions Regarding Jail Site Visits filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Berdux, Sabrina) (Filed on 9/4/2019) (Entered: 09/04/2019)
40 ORDER APPROVING EXTENSION FOR DEFENDANTS' RESPONSE TO QUESTIONS RE: SITE VISITS. Signed by Magistrate Judge Sallie Kim on 9/5/2019. (mklS, COURT STAFF) (Filed on 9/5/2019) (Entered: 09/05/2019)
41 Supplemental Response Regarding Defendants' Request for Protective Order Re Site Visit Photos and Videos re 32 Order − Reply Re Proposed Protective Order for Photos and Videos Taken During Site Visit filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: # 1 Proposed Order, # 2 Exhibit Exhibit A− Gmail from Sabrina Berdux)(Related document(s) 32 ) (Huang, Yolanda) (Filed on 9/10/2019) (Entered: 09/10/2019)
42 Letter Brief re 36 Order filed byCity and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Attachments: # 1 Exhibit A (Redacted))(Related document(s) 36 ) (Berdux, Sabrina) (Filed on 9/12/2019) (Entered: 09/12/2019)
43 Administrative Motion to File Under Seal Exhibit A to Letter Brief filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Attachments: # 1 Declaration Sabrina M. Berdux, # 2 Proposed Order, # 3 Exhibit A (Redacted), # 4 Exhibit A (Not

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 8 of 18

09/13/2019 09/16/2019 09/16/2019
09/16/2019
09/17/2019 09/18/2019 09/20/2019 09/20/2019 09/23/2019
09/23/2019 09/27/2019
09/30/2019 09/30/2019

Redacted))(Berdux, Sabrina) (Filed on 9/12/2019) (Entered: 09/12/2019)
44 OPPOSITION/RESPONSE to (re 37 DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS COMPLAINT) filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 9/13/2019) (Entered: 09/13/2019)
45 ORDER REGARDING MOTION TO FILE UNDER SEAL by Magistrate Judge Sallie Kim; granting in part and denying in part 43 Administrative Motion to File Under Seal. (tlS, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
46 Ex Parte Application for Leave to File a Motion for Reconsideration of Portions of this Court's Order re 45 Order on Administrative Motion to File Under Seal For Leave to File Motion for Reconsideration of Dkt 45 filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: #(1) Declaration of Yolanda Huang)(Huang, Yolanda) (Filed on 9/16/2019) (Entered: 09/16/2019)
47 [Proposed] Order Granting re 46 Ex Parte Application for Leave to File a Motion for Reconsideration of Portions of re 45 Order on Administrative Motion to File Under Seal For Leave to File Motion for Reconsideration of Dkt 45 filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 9/16/2019) (Entered: 09/16/2019)
48 PROTECTIVE ORDER. Signed by Judge Sallie Kim on 9/17/2019. (tlS, COURT STAFF) (Filed on 9/17/2019) (Entered: 09/17/2019)
49 ORDER GRANTING LEAVE TO FILE MOTION FOR RECONSIDERATION by Magistrate Judge Sallie Kim; granting 46 Ex Parte Application. Plaintiff's Motion for Reconsideration due by 9/24/2019. (tlS, COURT STAFF) (Filed on 9/18/2019) (Entered: 09/18/2019)
50 ORDER. Signed by Magistrate Judge Sallie Kim on 9/20/19. (sklc2S, COURT STAFF) (Filed on 9/20/2019) (Entered: 09/20/2019)
51 REPLY (re 37 DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS COMPLAINT) − REPLY IN SUPPORT OF DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT (Dkt. 37) filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Berdux, Sabrina) (Filed on 9/20/2019) (Entered: 09/20/2019)
52 ADMINISTRATIVE MOTION for Reconsideration and Modification of this Court's Order re 48 Protective Order Re: Defendants Request to File Under Seal Defendants' Responses (Dkt. 42−1) filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. Responses due by 9/27/2019. (Attachments: #(1) [Proposed] Order)(Huang, Yolanda) (Filed on 9/23/2019) (Entered: 09/23/2019)
53 JOINT CASE MANAGEMENT STATEMENT and [Proposed[ Order filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 9/23/2019) (Entered: 09/23/2019)
54 OPPOSITION/RESPONSE to (re 52 ADMINISTRATIVE MOTION to Modify Order Dkt 48 re 48 Protective Order) − OPPOSITION TO ADMINISTRATIVE MOTION MODIFY ORDER DKT 48 RE 48 PROTECTIVE ORDER (DKT. #52) filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Attachments: #(1) Declaration Kevin McConnell)(Berdux, Sabrina) (Filed on 9/27/2019) (Entered: 09/27/2019)
55 REVISED ORDER REGARDING 43 MOTION TO FILE UNDER SEAL by Magistrate Judge Sallie Kim (Re: 52 Administrative Motion for Reconsideration). (mklS, COURT STAFF) (Filed on 9/30/2019) (Entered: 09/30/2019)
56 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Initial Case Management Conference held on 9/30/2019. The parties will meet and confer to submit a stipulation to the Court by 10/7/2019 regarding the

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 9 of 18

09/30/2019 10/02/2019 10/03/2019
10/03/2019 10/04/2019 10/08/2019 10/10/2019

confidentiality of specific photographs from the site visits. Parties are also trying to come to an agreement regarding the blood draw issue. The Court sets the following briefing schedule, if the parties are unable to come to an agreement: Plaintiffs' opening brief due by 10/15/2019; Defendants' response due by 10/29/2019; Plaintiffs' reply due 11/12/2019. With regarding to the case schedule, the Court will allow Plaintiffs to submit proposed dates by 10/1/2019. If there are case management issues to be discussed at the next hearing on 10/23/2019 the parties may provide a one−page update to the Court by 10/21/2019. (FTR Time: 1:37−1:49.)
Attorney for Plaintiffs: Yolanda Huang. Attorney for Defendants: Sabrina Berdux; Kaitlyn Murphy.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 9/30/2019) (Entered: 09/30/2019)
57 JOINT CASE MANAGEMENT STATEMENT filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 9/30/2019) (Entered: 09/30/2019)
58 SUPPLEMENTAL CASE MANAGEMENT CONFERENCE STATEMENT − [Correction to Docket #57] filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 10/2/2019) (Entered: 10/02/2019)
59 CASE MANAGEMENT, SCHEDULING, AND PRETRIAL ORDER.Case referred to Magistrate Judge Laurel Beeler for Settlement to be completed by 3/6/2020. Updated Case Management Statement due by 11/25/2019. Further Case Management Conference set for 12/2/2019 01:30 PM in San Francisco, Courtroom C, 15th Floor. Motion Hearing on Limited Summary Judgment Regarding Administrative Exhaustion set for 3/23/2020 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Close of Fact Discovery is 11/2/2020. Initial Expert Disclosure due by 12/1/2020. Rebuttal Expert Disclosure due by 1/4/2021. Close of Expert Discovery is 2/16/2021. Motion Hearing Regarding Class Certification set for 3/21/2021 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Dispositive Motion Hearing set for 5/24/2021 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Pretrial Conference set for 7/9/2021 01:30 PM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Jury Selection set for 8/10/2021 08:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Jury Trial set for 8/10/2021 08:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Signed by Magistrate Judge Sallie Kim on 10/3/2019. (mklS, COURT STAFF) (Filed on 10/3/2019) (Entered: 10/03/2019)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahmS, COURT STAFF) (Filed on 10/3/2019) (Entered: 10/03/2019)
60 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE SCHEDULING CALL: This case was referred for a settlement conference to Magistrate Judge Laurel Beeler. The court sets a call with the parties to discuss the timing and logistics of the settlement conference for Thursday, 10/24/2019 at 11:15 AM. The court will email a call−in number separately. If this date does not work, parties may request to change the date by stipulation. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 10/4/2019) (Entered: 10/04/2019)
61 DEFENDANTS STIPULATION AND [PROPOSED] ORDER ON JAIL SITE PHOTOS AND VIDEOS REGARDING LEGAL OF CONFIDENTIALITY re 56 Case Management Conference filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Berdux, Sabrina) (Filed on 10/8/2019) (Entered: 10/08/2019)
62 Plaintiffs' Proposed Photos and Videos and Objections to re 61 DEFENDANTS [PROPOSED] STIPULATION ON JAIL SITE PHOTOS AND VIDEOS REGARDING

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 10 of 18

10/15/2019
10/15/2019
10/15/2019 10/15/2019 10/15/2019 10/16/2019
10/23/2019 10/24/2019 10/24/2019

LEGAL OF CONFIDENTIALITY filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 10/10/2019) (Entered: 10/10/2019)
63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. Motion Hearing set for 11/18/2019 01:30 PM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Sallie Kim. Responses due by 10/29/2019. Replies due by 11/12/2019. (Attachments: # 1 Supplement Memorandum of Points and Authorities, # 2 Declaration Declaration of Yolanda Huang)(Huang, Yolanda) (Filed on 10/15/2019) (Entered: 10/15/2019)
64 EXHIBITS to re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery − EXHIBIT A: Plaintiffs Letter dated 8.20.2019 EXHIBIT B: Upshaw Stipulation EXHIBIT C: Defendants Letter dated 10.3.2019 EXHIBIT D: Plaintiffs Letter dated 10.7.2019 EXHIBIT E: Defendants Letter dated 10.11.2019 EXHIBIT F−1 Dr. Zeitzer,f−2: Dr. Ghannam, F−3: Dr. Haar and F−3: Dr. Holick filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Related document(s) 63 ) (Huang, Yolanda) (Filed on 10/15/2019) (Entered: 10/15/2019)
65 [Proposed] Order re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery 64 Exhibits filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 10/15/2019) (Entered: 10/15/2019)
66 ORDER REGARDING PHOTOGRAPHS AND VIDEOS SUBJECT TO PROTECTIVE ORDER (Re: Dockets nos. 61 and 62 ) by Magistrate Judge Sallie Kim. (mklS, COURT STAFF) (Filed on 10/15/2019) (Entered: 10/15/2019)
67 DOCUMENT E−FILED UNDER SEAL re 45 Order on Administrative Motion to File Under Seal by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Berdux, Sabrina) (Filed on 10/15/2019) (Entered: 10/15/2019)
68 CLERK'S NOTICE Re: 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery. The Court previously set a briefing schedule and hearing date for this motion at docket no. 59 . The schedule is reset in accordance with the Court's prior order. Defendants' Opposition is due by 10/29/2019. Plaintiffs' Reply is due by 11/5/2019. Motion Hearing reset for 12/2/2019 01:30 PM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 10/16/2019) (Entered: 10/16/2019)
69 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Evidentiary Hearing held on 10/23/2019. (Sealed FTR Time: 9:37−11:32.) (Attachments: # 1 Hearing Log)(mklS, COURT STAFF) (Date Filed: 10/23/2019) Modified on 10/24/2019: Matter transcribed by Peggy Schuerger (AdHoc Reporting). (rjdS, COURT STAFF). (Entered: 10/23/2019)
70 TRANSCRIPT ORDER for proceedings held on 10/23/2019 before Magistrate Judge Sallie Kim by City and County of San Francisco, for Court Reporter FTR − San Francisco. (Berdux, Sabrina) (Filed on 10/24/2019) (Entered: 10/24/2019)
71 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference Call held on 10/24/2019. The court sets the in−person settlement conference for Tuesday, February 18, 2020 at 10:00 AM. (Not Reported).
Plaintiffs' Attorney: Yolanda Huang. Defendants' Attorney: Sabrina Michelle Berdux. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/24/2019) (Entered: 10/24/2019)

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 11 of 18

10/24/2019 10/24/2019 10/24/2019 10/26/2019
10/28/2019 10/29/2019
11/01/2019 11/01/2019 11/05/2019 11/08/2019
11/12/2019

72 Order Setting Settlement Conference before Magistrate Judge. Settlement Conference set for 2/18/2020 at 10:00 AM in San Francisco, Courtroom B, 15th Floor. Settlement Conference Statements due by 1/28/2020. Signed by Judge Laurel Beeler on 10/24/2019. (ejkS, COURT STAFF) (Filed on 10/24/2019) (Entered: 10/24/2019)
73 ORDER REGARDING DISPUTED PHOTOGRAPHS AND VIDEOS SUBJECT TO THE PROTECTIVE ORDER. Signed by Magistrate Judge Sallie Kim on 10/24/2019. (mklS, COURT STAFF) (Filed on 10/24/2019) (Entered: 10/24/2019)
74 ORDER REGARDING SEALING OF EVIDENTIARY HEARING TRANSCRIPT. Signed by Magistrate Judge Sallie Kim on 10/24/2019. (mklS, COURT STAFF) (Filed on 10/24/2019) (Entered: 10/24/2019)
75 Sealed Transcript of Proceedings held on 10/23/2019, before Magistrate Judge Sallie Kim. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, Telephone number (619) 228−3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/13/2019. Redacted Transcript Deadline set for 11/25/2019. (pls, COURT STAFF) (Filed on 10/26/2019) (Entered: 10/26/2019)
76 ORDER DENYING MOTION TO RELATE CASES.The Administrative Motion [Dkt. 17 in 4:19−cv−2722−YGR] to determine whether the Court should relate cases 4:19−cv−2722−YGR and 3:19−cv−2724−SK is DENIED. Signed by Judge Yvonne Gonzalez Rogers on 10/28/2019. (fs, COURT STAFF) (Filed on 10/28/2019) (Entered: 10/29/2019)
77 OPPOSITION/RESPONSE to (re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery) − RESPONSE TO MOTION TO COMPEL DEFENDANT SAN FRANCISCO SHERIFF DEPARTMENT TO PROVIDE ACCESS FOR DISCOVERY (DKT. 56, 63, 68) filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Attachments: # 1 Declaration Undersheriff Matthew Freeman, # 2 Declaration Lisa A. Pratt, MD, MPH, # 3 Declaration Sabrina M. Berdux, # 4 Exhibit A to Sabrina M. Berdux Declaration, # 5 Exhibit B to Sabrina M. Berdux Declaration)(Berdux, Sabrina) (Filed on 10/29/2019) (Entered: 10/29/2019)
78 ORDER UNSEALING EVIDENTIARY HEARING TRANSCRIPT AND FTR RECORDING. Signed by Magistrate Judge Sallie Kim on 11/1/19. (sklc2S, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)
79 Supplemental Brief in Support of re 8 MOTION for Preliminary Injunction filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: # 1 Declaration of Montrail Brackens, # 2 Declaration of Armando Carlos, # 3 Declaration Kenyon Norbert, # 4 Declaration Kishawn Norbert, # 5 Declaration Roger Dominguez)(Related document(s) 8 ) (Huang, Yolanda) (Filed on 11/1/2019) (Entered: 11/01/2019)
80 REPLY (re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery ) filed byMontrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: # 1 Declaration Yolanda Huang)(Huang, Yolanda) (Filed on 11/5/2019) (Entered: 11/05/2019)
81 Supplemental Brief re 8 MOTION for Preliminary Injunction − DEFENDANTS SUPPLEMENTAL BRIEFING REGARDING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (DKT. 8) filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto. (Attachments: # 1 Declaration Kaitlyn Murphy, # 2 Exhibit A to Declaration of Kaitlyn Murphy, # 3 Exhibit B to Declaration of Kaitlyn Murphy)(Related document(s) 8 ) (Murphy, Kaitlyn) (Filed on 11/8/2019) (Entered: 11/08/2019)
82 CLERK'S NOTICE Re: Hearing on 11/18/2019: At the hearing on 11/18/2019 at 1:30 PM the Court will hear argument as to the Motion for Preliminary Injunction (dkt no. 8 ) and Motion to Dismiss (dkt no. 37) only. The Motion to Compel (dkt no. 63 ) is set for a separate hearing on 12/2/2019 at 1:30 PM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 12 of 18

11/18/2019
11/19/2019 11/26/2019 12/02/2019
12/03/2019 12/04/2019 12/04/2019

STAFF) (Filed on 11/12/2019) (Entered: 11/12/2019)
83 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Motion Hearing held on 11/18/2019 re 8 MOTION for Preliminary Injunction filed by Kenyon Norbert and 37 MOTION to Dismiss DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS COMPLAINT. The Court heard oral argument on the motions and will issue a written order. (FTR Time: 1:49−2:29.)
Attorney for Plaintiff: Yolanda Huang. Attorneys for Defendants: Sabrina Berdux; Kaitlyn Murphy.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 11/18/2019) Modified on 3/4/2020: Matter transcribed by Peggy Schuerger (AdHoc Reporting). (rjdS, COURT STAFF). (Entered: 11/18/2019)
84 PDF with attached Audio File. Court Date & Time [ 11/18/2019 1:49:22 PM ]. File Size [ 19080 KB ]. Run Time [ 00:39:45 ]. (courtspeak). (Entered: 11/19/2019)
85 JOINT CASE MANAGEMENT STATEMENT filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 11/26/2019) (Entered: 11/26/2019)
86 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Motion Hearing held on 12/2/2019 re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery filed by Plaintiffs. Further Case Management Conference held on 12/2/2019. The Court continued the hearing on the motion to compel. The Court advises plaintiffs to provide additional information regarding the scientific validity of the proposed plan and the manner in which the data and evidence will be used either by scientific researchers or by other sources who seek to subpoena the materials for use in ongoing criminal cases or other ongoing civil cases. The Court advises plaintiffs to provide copies of any studies submitted for approval with any institutional review board regarding testing of human subjects and, to the extent that scientific researchers have sought funding from other sources, copies of any grant proposals. The Court advises defendants to provide information regarding the initial screening of inmates, the regularity and scope of checkups, and the manner in which inmates can seek their medical records. The Court notes that any consent form must be mutual, i.e., the parties must have equal access to any evidence obtained. Further Case Management Conference set for 1/7/2020 01:30 PM in San Francisco, Courtroom C, 15th Floor. Further Motion Hearing set for 1/7/2020 01:30 PM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim.(FTR Time: 1:33−1:57; 1:58−1:59.)
Plaintiff Attorney: Yolanda Huang. Defendant Attorney: Sabrina Berdux.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 12/2/2019) (Entered: 12/02/2019)
87 ORDER REGARDING MOTION TO COMPEL. Signed by Magistrate Judge Sallie Kim on 12/3/2019. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 12/3/2019) (Entered: 12/03/2019)
88 CLERK'S NOTICE Continuing Hearing: Notice is given that the Further Motion Hearing Re: 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery and Case Management Conference set for 1/7/2020 are continued to 1/14/2020 01:30 PM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. (This is a text−only entry generated by the court. There is no document associated with this entry.)(mklS, COURT STAFF) (Filed on 12/4/2019) Modified on 12/4/2019 (mklS, COURT STAFF). (Entered: 12/04/2019)
Set/Reset Hearing re 88 Clerk's Notice. Further Case Management Conference reset for 1/14/2020 01:30 PM in San Francisco, Courtroom C, 15th Floor. (mklS, COURT

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 13 of 18

12/16/2019 12/16/2019
12/17/2019 12/17/2019 12/17/2019 12/30/2019 01/03/2020 01/07/2020 01/07/2020
01/07/2020
01/07/2020
01/07/2020 01/09/2020
01/13/2020

STAFF) (Filed on 12/4/2019) (Entered: 12/04/2019)
89 NOTICE OF CHANGE OF PLAINTIFFS' COUNSEL ADDRESS filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 12/16/2019) (Entered: 12/16/2019)
90 Ex Parte Application for Leave to File Surrebuttal and Supplemental Points and Authorities with [Proposed] Order re 8 MOTION for Preliminary Injunction filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 12/16/2019) (Entered: 12/16/2019)
91 ORDER by Magistrate Judge Sallie Kim granting 90 Ex Parte Application for Leave to File Surrebuttal. Plaintiffs to file a sur−rebuttal no later than 12/30/2019. Any response by Defendants shall be due no later than 1/13/2020. (mklS, COURT STAFF) (Filed on 12/17/2019) (Entered: 12/17/2019)
92 NOTICE of Appearance by Jonathan Philip Abel (Abel, Jonathan) (Filed on 12/17/2019) (Entered: 12/17/2019)
93 Brief of Amicus Curiae Office of the Federal Public Defender for the Northern District of California filed byJonathan Abel. (Abel, Jonathan) (Filed on 12/17/2019) (Entered: 12/17/2019)
94 SURREBUTTAL re (re 8 MOTION for Preliminary Injunction) filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 12/30/2019) (Entered: 12/30/2019)
95 Amicus Curiae Letter from San Francisco Public Defender's Office. (mklS, COURT STAFF) (Filed on 1/3/2020) (Entered: 01/03/2020)
96 Letter from Sabrina M. Berdux re Additional Information Re: Plaintiffs' Motion for Blood Test Study. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Berdux, Sabrina) (Filed on 1/7/2020) (Entered: 01/07/2020)
97 Declaration of Dr. Jamie Zeitzer In Response to the Court's Questions re 87 Order in Support of Plaintiffs' Request for Access to Conduct Medical Testing and Medical and Psychological Examination filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Attachments: #(1) Declaration Yolanda Huang)(Related document(s) 87 ) (Huang, Yolanda) (Filed on 1/7/2020) (Entered: 01/07/2020)
98 SUPPLEMENTAL DECLARATION of Sabrina M. Berdux in Response to Blood Test Study Proposal re 87 Order filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 87 ) (Berdux, Sabrina) (Filed on 1/7/2020) (Entered: 01/07/2020)
99 FURTHER CASE MANAGEMENT STATEMENT; DECLARATION OF KAITLYN MURPHY filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Attachments: #(1) Exhibit A)(Murphy, Kaitlyn) (Filed on 1/7/2020) (Entered: 01/07/2020)
100 CASE MANAGEMENT CONFERENCE STATEMENT filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 1/7/2020) (Entered: 01/07/2020)
101 CLERK'S NOTICE: The Court requests that the parties prepare a flash drive containing all photographs and videos taken during the site visits and provide it to the Court at the hearing on 1/14/2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/9/2020) (Entered: 01/09/2020)
102 OPPOSITION/RESPONSE (re 8 MOTION for Preliminary Injunction ) Response to Surreply filed byCity and County of San Francisco, Vicki Hennessy, Jason Jackson,

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 14 of 18

01/14/2020

Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Murphy, Kaitlyn) (Filed on 1/13/2020) (Entered: 01/13/2020)
103 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Motion Hearing held on 1/14/2020 re 63 MOTION to Compel Defendants San Francisco Sheriff's Department to Provide Access for Discovery. Further Case Management Conference held on 1/14/2020. The Court grants in part and denies in part the Motion to Compel. A written order will issue. The Court grants the Defendants' request to consolidate the motion for summary judgment regarding exhaustion with any other motion for summary judgment to be filed by defendants. The motion hearing set for 3/23/2020 is vacated. Case Management Statement due by 3/23/2020. Further Case Management Conference set for 3/30/2020 01:30 PM in San Francisco, Courtroom C, 15th Floor. (FTR Time: 1:32−2:03.)

Attorney for Plaintiffs: Yolanda Huang. Attorneys for Defendants: Sabrina Berdux; Kaitlyn Murphy.

01/15/2020 01/15/2020
01/20/2020 01/23/2020 01/24/2020 01/29/2020 01/31/2020 02/03/2020
02/05/2020

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 1/14/2020) (Entered: 01/14/2020)
104 Letter Brief re 103 Case Management Conference − Further,,,,, Motion Hearing,,,,, Set Deadlines/Hearings,,,, Supplemental Information Regarding Blood Tests filed byCity and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Related document(s) 103 ) (Berdux, Sabrina) (Filed on 1/15/2020) (Entered: 01/15/2020)
105 Letter Brief re 103 Case Management Conference − Further,,,,, Motion Hearing,,,,, Set Deadlines/Hearings,,,, 104 Letter Brief, Opposition to Defendants Request for Open Ended, Unspecified Blood Testing filed byMontrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Related document(s) 103 , 104 ) (Huang, Yolanda) (Filed on 1/15/2020) (Entered: 01/15/2020)
106 Supplemental Brief In Opposition to Defendants Oral and Letter Brief Requesting Order to Compel Plaintiffs' Medical Examination filed byMontrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 1/20/2020) (Entered: 01/20/2020)
107 ORDER by Magistrate Judge Sallie Kim granting in part and denying in part 63 Motion to Compel. (sklc2S, COURT STAFF) (Filed on 1/23/2020) (Entered: 01/23/2020)
108 ORDER Posing Supplemental Questions re 8 . Signed by Magistrate Judge Sallie Kim on 1/24/20. (sklc2S, COURT STAFF) (Filed on 1/24/2020) (Entered: 01/24/2020)
109 RESPONSES to re 108 Order Posing Supplemental Questions filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Murphy, Kaitlyn) (Filed on 1/29/2020) (Entered: 01/29/2020)
110 ORDER by Magistrate Judge Sallie Kim granting in part and denying in part 37 Motion to Dismiss; granting in part and denying in part 8 Motion for Preliminary Injunction. (sklc2S, COURT STAFF) (Filed on 1/31/2020) (Entered: 01/31/2020)
111 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE DATE: Settlement Conference previously set for 2/18/2020 is reset to 3/5/2020 at 1:00 PM in San Francisco, Courtroom B, 15th Floor. Settlement Conference Statements due by 2/27/2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 2/3/2020) (Entered: 02/03/2020)
112 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: Settlement Conference previously set for 3/5/2020 is advanced to 2/27/2020 at 1:00 PM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 15 of 18

02/05/2020 02/06/2020 02/07/2020
02/10/2020 02/11/2020 02/11/2020
02/11/2020 02/14/2020 02/14/2020
02/19/2020
02/21/2020

2/5/2020) (Entered: 02/05/2020)
113 ADMINISTRATIVE MOTION for Clarification of the Portions of re 110 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction filed by City and County of San Francisco. Responses due by 2/10/2020. (Attachments: # 1 Declaration of Sabrina Berdux, # 2 Declaration of Undersheriff Matthew Freeman, # 3 Proposed Order)(Murphy, Kaitlyn) (Filed on 2/5/2020) (Entered: 02/05/2020)
114 ORDER Regarding Motion for Clarification by Magistrate Judge Sallie Kim. (shyS, COURT STAFF) (Filed on 2/6/2020) (Entered: 02/06/2020)
115 ADMINISTRATIVE MOTION Whether Defendants blood tests are unlimited or confined to toxicology, whether defendants need to name the testing facility and the allocation of costs re 107 Order on Motion to Compel Discovery filed by Montrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. Responses due by 2/11/2020. (Attachments: #(1) Declaration of Yolanda Huang, #(2) [Proposed] Order)(Huang, Yolanda) (Filed on 2/7/2020) (Entered: 02/07/2020)
116 OPPOSITION/RESPONSE (re 113 ADMINISTRATIVE MOTION for Clarification re 110 Order on Motion to Dismiss, Order on Motion for Preliminary Injunction ) filed byMontrail Brackens, Michael Brown, Armando Carlos, Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 2/10/2020) (Entered: 02/10/2020)
117 [Proposed] Order of Clarification re 107 Order on Motion to Compel filed by Troy McAllister, Kenyon Norbert, Jose Poot. (Huang, Yolanda) (Filed on 2/11/2020) (Entered: 02/11/2020)
118 OPPOSITION/RESPONSE to (re 115 ADMINISTRATIVE MOTION Whether Defendants blood tests are unlimited or confined to toxicology, whether defendants need to name the testing facility and the allocation of costs re 107 Order on Motion to Compel Discovery) filed by City and County of San Francisco, Vicki Hennessy, Jason Jackson, Captain McConnell, Paul Miyamoto, San Francisco Sheriff's Department. (Attachments: # 1 Declaration Sabrina M. Berdux, # 2 Exhibit A, # 3 Exhibit B)(Berdux, Sabrina) (Filed on 2/11/2020) (Entered: 02/11/2020)
119 ORDER by Magistrate Judge Sallie Kim Re: 113 Administrative Motion for Clarification. (mklS, COURT STAFF) (Filed on 2/11/2020) (Entered: 02/11/2020)
120 TRANSCRIPT ORDER for proceedings held on 10/23/2019 before Magistrate Judge Sallie Kim for Court Reporter FTR − San Francisco. (rjdS, COURT STAFF) (Filed on 2/14/2020) (Entered: 02/14/2020)
121 Transcript of Proceedings held on 10/23/2019, before Magistrate Judge Sallie Kim. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, telephone number (619) 228−3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 120 Transcript Order ) Redaction Request due 3/6/2020. Redacted Transcript Deadline set for 3/16/2020. Release of Transcript Restriction set for 5/14/2020. (Related documents(s) 120 ) (pls, COURT STAFF) (Filed on 2/14/2020) (Entered: 02/14/2020)
122 CLERK'S NOTICE Setting Telephonic Hearing: Notice is given that a Telephonic Status Conference to address the Administrative Motion and Opposition (dkt nos. 115 and 118 ) is set for 2/24/2020 09:30 AM in San Francisco, Chambers before Magistrate Judge Sallie Kim. The Court will circulate dial−in information to counsel by separate email. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 2/19/2020) (Entered: 02/19/2020)
123 CLERK'S NOTICE Continuing Telephonic Hearing: Notice is given that the Telephonic Status Conference set for 2/24/2020 is continued to 2/25/2020 08:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. The

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 16 of 18

02/25/2020

dial−in information remains the same as previously circulated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 2/21/2020) (Entered: 02/21/2020)
124 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephonic Status Conference held on 2/25/2020. Plaintiffs must provide to defendants a proposed form of consent for the blood draw by 3/6/2020. Defendants must provide their proposed form of consent for the blood draw by 3/13/2020. If the parties agree to the form, they can submit that form by 3/17/2020 to the Court. If the parties do not agree to the form, they may submit competing proposals with a two−page letter of explanation to the Court by 3/17/2020.(FTR Time: 8:30−8:38.)

Attorney for Plaintiffs: Yolanda Huang. Attorneys for Defendants: Sabrina Berdux; Kaitlyn Murphy.

02/26/2020 02/27/2020

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 2/25/2020) (Entered: 02/25/2020)
125 ANSWER to Complaint with Jury Demand byCity and County of San Francisco, Vicki Hennessy. (Berdux, Sabrina) (Filed on 2/26/2020) (Entered: 02/26/2020)
126 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 2/27/2020. The court held a settlement conference. The parties identified three major areas for resolution, with one area needing discussion with the Sheriff next week. The court thus set a settlement call with the parties for Thursday, March 5, 2020 at 3:00 p.m. The court will circulate a call−in number separately. (Not Reported).

02/28/2020
02/28/2020
03/02/2020 03/02/2020 03/02/2020 03/03/2020 03/03/2020

Plaintiffs' Attorney: Yolanda Huang. Defendants' Attorneys: Kailyn Murphy, Margaret Baumgartner and Sabrina Berdux. Also ppearing: Jennifer Johnson. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 2/27/2020) (Entered: 02/28/2020)
127 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by City and County of San Francisco. Appeal of Order on Motion to Dismiss, Order on Motion for Preliminary Injunction 110 , Order on Administrative Motion per Civil Local Rule 7−11 119 (Appeal fee: PAID 3/2/2020.) (Murphy, Kaitlyn) (Filed on 2/28/2020) Modified on 3/3/2020 (fabS, COURT STAFF). (Entered: 02/28/2020)
128 MOTION to Stay filed by City and County of San Francisco. Motion Hearing set for 4/6/2020 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. Responses due by 3/13/2020. Replies due by 3/20/2020. (Attachments: # 1 Declaration Kaitlyn Murphy, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order)(Murphy, Kaitlyn) (Filed on 2/28/2020) (Entered: 02/28/2020)
129 Mailed request for payment of docket fee to appellant (cc to USCA) (fabS, COURT STAFF) (Filed on 3/2/2020) (Entered: 03/02/2020)
130 USCA Case Number 20−15341 9th Circuit for 127 Notice of Appeal, filed by City and County of San Francisco. (fabS, COURT STAFF) (Filed on 3/2/2020) (Entered: 03/02/2020)
131 USCA Appeal Fees received $ 505 receipt number 34611147835 re 127 Notice of Appeal, filed by City and County of San Francisco (fabS, COURT STAFF) (Filed on 3/2/2020) (Entered: 03/03/2020)
132 Transcript Designation Form for proceedings held on 8/5/19, 10/23/19, 11/18/19 before Judge Sallie Kim, (Murphy, Kaitlyn) (Filed on 3/3/2020) (Entered: 03/03/2020)
133 TRANSCRIPT ORDER for proceedings held on 8/5/2019 and 11/18/2019 before Magistrate Judge Sallie Kim by City and County of San Francisco, for Court Reporter FTR − San Francisco. (Murphy, Kaitlyn) (Filed on 3/3/2020) Modified on 3/4/2020: Removed date previously ordered. (rjdS, COURT STAFF). (Entered: 03/03/2020)

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 17 of 18

03/05/2020

134 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference Call held on 3/5/2020. The court held a further settlement conference with the parties. The CCSF's current motion to stay is now calendared for April 6, 2020. The CCSF obviously does not want to be in violation of the injunction. The court and parties worked out a process whereby the parties will stipulate to certain recitals reflecting the current compliance with the injunction and other relief that the CCSF has implemented, and will agree to a process to address the remaining issue that was the subject of the call today. That will allow the parties to continue to work on the last piece of the case. The stipulation thus will propose continuing the motions hearing and extending the time for any opposition to allow this process. It also will allow the parties to stipulate to stay the briefing for the pending appeal to allow the settlement process. The CCSF will circulate a draft to Ms. Huang by Friday, March 6, 2020, and Ms. Huang will provide any edits by Monday, March 9, 2020. The parties will file the stipulation on Tuesday, March 10, 2020.

The CCSF contemplates being able to provide a further update about the last issue by next Thursday, March 12, 2020. The parties will confer by telephone at 11:00 a.m. that day and will update the court in a joint email by COB on March 12, 2020 about the proposal and their contemplated next steps. (Not Reported).

03/10/2020
03/10/2020
03/10/2020 03/11/2020 03/11/2020

Plaintiffs' Attorney: Yolanda Huang. Defendants' Attorneys: Sabrina Berdux, Kaitlyn M. Murphy and Margaret W. Baumgartner. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 3/5/2020) (Entered: 03/06/2020)
135 Transcript of Proceedings held on 08/05/2019, before Magistrate Judge Sallie Kim. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, telephone number (619) 228−3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 133 Transcript Order, ) Redaction Request due 3/31/2020. Redacted Transcript Deadline set for 4/10/2020. Release of Transcript Restriction set for 6/8/2020. (Related documents(s) 133 ) (pls, COURT STAFF) (Filed on 3/10/2020) (Entered: 03/10/2020)
136 Transcript of Proceedings held on 11/18/2019, before Magistrate Judge Sallie Kim. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, telephone number (619) 228−3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 133 Transcript Order, ) Redaction Request due 3/31/2020. Redacted Transcript Deadline set for 4/10/2020. Release of Transcript Restriction set for 6/8/2020. (Related documents(s) 133 ) (pls, COURT STAFF) (Filed on 3/10/2020) (Entered: 03/10/2020)
137 STIPULATION WITH PROPOSED ORDER re 134 Settlement Conference,,,,,,, FOR PARTIAL STAY OF INJUNCTION AND STAY OF APPEAL filed by City and County of San Francisco, Vicki Hennessy. (Baumgartner, Margaret) (Filed on 3/10/2020) (Entered: 03/10/2020)
138 ORDER by Magistrate Judge Sallie Kim granting 137 Stipulation for Partial Stay of Injunction and Stay of Appeal. (mklS, COURT STAFF) (Filed on 3/11/2020) (Entered: 03/11/2020)
Set/Reset Deadlines as to 128 MOTION to Stay . Responses due by 4/24/2020. Replies due by 5/8/2020. Motion Hearing reset for 5/18/2020 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Sallie Kim. (mklS, COURT STAFF) (Filed on 3/11/2020) (Entered: 03/11/2020)

Case: 3:19-cv-2724 As of: 03/15/2020 02:40 PM PDT 18 of 18

03/13/2020

139 NOTICE OF CROSS APPEAL as to 127 Notice of Appeal, by Marshall Harris, Troy McAllister, Kenyon Norbert, Jose Poot. (Appeal fee of $505 receipt number 0971−14280117 paid.) Appeal Record due by 4/13/2020. (Huang, Yolanda) (Filed on 3/13/2020) (Entered: 03/13/2020)

 
 Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 1 of 25

1

LAW OFFICES OF YOLANDA HUANG YOLANDA HUANG, SBN 104543

2 475 14th Street, Suite 500

Oakland, CA 94612

3 Telephone: (510) 329-2140

4 Facsimile: (510) 580-9410

5 Attorney for Plaintiffs

6

7 UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9 SAN FRANCISCO/OAKLAND DIVISION
10

11

12 KENYON NORBERT, TROY MCALLISTER, 13 MARSHALL HARRIS, ARMANDO CARLOS,
MONTRAIL BRACKENS, MICHAEL 14 BROWN, and JOSE POOT, on behalf of
themselves individually and others similarly 15 situated, as a class and Subclass,

16

Plaintiffs,

17

vs.

18 SAN FRANCISCO COUNTY SHERIFF’S
19 DEPARTMENT, CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO
20 SHERIFF VICKI HENNESSY; CHIEF 21 DEPUTY SHERIFF PAUL MIYAMOTO;
CAPTAIN JASON JACKSON, CAPTAIN 22 MCCONNELL and John & Jane DOEs, Nos. 1
- 50. 23

24

Defendants.

Case No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES CLASS ACTION
(1) Cruel and Unusual Denial of Outdoor Recreation: Violations of 8th and 14th amendments of U.S. Constitution and Article I, Sections 7 and 17 of the California Constitution, 15 CCR 1065.
(2) Cruel and Unusual Imposition of Confinement and Denial of Out of Cell Time Violations of 8th and 14th amendments of U.S. Constitution and Article I, Sections 7 and 17 of the California Constitution and 15 CCR 1065.
JURY TRIAL DEMANDED

25

26

27

28

1
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 2 of 25

1

INTRODUCTION

2

This case arises from the systematic subjection of prisoners in San Francisco’s County Jail 4

3 and County Jail 5 to unconstitutional conditions, policies and procedures by Defendants. Named

4 Plaintiffs are pretrial detainees, who have been confined in a San Francisco County Jail 4 and 5 up

5 to six and a half years, and during this period of time, were completely denied all access to

6 sunshine, and completely denied any outdoor recreation. All prisoners in County Jail 4, and some

7 prisoners in County Jail 5, are confined for excessive amounts of time to their cells; these prisoners

8 are permitted out of their cells for only 3 hours a week, total, resulting in being locked up for 165

9 hours a week, or 98.2% of the time. Defendants have been, and continue to be, deliberately

10 indifferent to these unconstitutional, cruel and inhumane conditions in their jails. Their indifference

11 results in an unreasonable risk of serious harm to these prisoners’ physical, emotional and mental

12 health.

13

Plaintiffs, who have been subjected to and harmed by Defendants’ constitutionally

14 inadequate and jail-wide policies and procedures, seek to represent the class which includes all

15 prisoners housed at County Jail 4 and County Jail 5, all of whom are completely denied access to

16 the outdoors and sunshine, and the subclass of prisoners in County Jail 4 and 5 who are locked up

17 98.2% of the time. Plaintiffs seek a declaration that Defendants’ ongoing policies and practices

18 violate their constitutional and statutory rights, and further, seek injunctive relief compelling

19 Defendants to (1) cease the harmful, excessive and unconstitutional use of confinement and

20 isolation; (2) implement procedures to permit more out of cell time for all prisoners, (3) to provide

21 all prisoners with regular outdoor recreation, access to sunshine and sunlight, and for the sub-class

22 to have daily minimum out of cell time; (4) provide all prisoners who require,, appropriate medical

23 treatment for the injuries received.

24

JURISDICTION

25

1. This action is brought pursuant to the Eighth and Fourteenth Amendments to the

26 United State Constitution, by way of the Civil Rights Acts, 42 U.S.C. §§1981, 1983 et seq., and §

27 1988.

28

2
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 3 of 25

1

2. Jurisdiction is conferred upon this Court by 28 U.S.C. §1331 (claims arising under

2 the United States Constitution) and §1343 (claims brought to address deprivations, under color of

3 state authority, of rights privileges, and immunities secured by the United States Constitution), and,

4 by pendent jurisdiction, Secs. 52.1, and 50, of the California Civil Code and the aforementioned

5 statutory and constitutional provisions.

6

3. Plaintiffs further invoke this Court's supplemental jurisdiction, pursuant to 28 U.S.C.

7 §1367, over any and all state law claims and causes of action which derive from the same nucleus

8 of operative facts and are part of the same case or controversy that gives rise to the federally based

9 claims and causes of action.

10

4. Plaintiffs seek declaratory and injunctive relief under 28 U.S.C. §§ 1343, 2201, and

11 2202, 29 U.S.C. § 794a, 42 U.S.C. §§ 1983 and 12117(a), California Government Code § 11135,

12 and Article I, Sections 7 and 17 of the California Constitution.

13

5. Plaintiffs and members of the class filed numerous grievances and exhausted the

14 administrative remedies with the San Francisco Sheriff’s Office. The San Francisco Sheriff’s

15 Office accepted some grievances and denied the grievances they permitted to be filed, or refused to

16 accept grievances. Defendants have taken no action to correct these problems.

17

6. Plaintiffs individually and as a group filed a government claim with the CITY AND

18 COUNTY OF SAN FRANCISCO regarding their claims and the claims. The group claim was filed

19 on March 6, 2019 and rejected on March 19, 2018.

20

VENUE AND INTRADISTRICT ASSIGNMENT

21

7. The claims alleged herein arose in the County of San Francisco, State of California.

22 Therefore, venue and assignment, under 28 U.S.C. § 1391(b), lies in the United States District

23 Court for the Northern District of California, San Francisco Division or Oakland Division.

24

JURY DEMAND

25

8. Plaintiffs respectfully demand a trial by jury of all issues in this matter pursuant to

26 Fed. R. Civ. P. 38(b).

27

28

3
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 4 of 25

1

PARTIES

2

PLAINTIFFS

3

9. Plaintiffs are all current prisoners incarcerated at San Francisco County Jail 4 and

4 County Jail 5. All plaintiffs are pre-trial detainees. All Plaintiffs seek to represent a class of

5 prisoners imprisoned at the San Francisco County Jail 4 and San Francisco County Jail 5 at any

6 time since May 20, 2017.

7

10. Plaintiffs KENYON NORBERT, MONTRAIL BRACKENS, and JOSE POOT are

8 all incarcerated prisoners in San Francisco County Jail 4. TROY MCALLISTER, MARSHAL

9 HARRIS, ARMANDO CARLOS, MICHAEL BROWN are all incarcerated prisoners in San

10 Francisco County Jail 5. KENYON NORBERT, MONTRAIL BRACKENS, JOSE POOT, TROY

11 MCALLISTER, MARSHAL HARRIS, and MICHAEL BROWN are all pretrial detainees.

12 Armando Carlos is a pre-sentence detainee for 7 years incarcerated in San Francisco County Jail 5.

13

DEFENDANTS

14

San Francisco County Defendants

15

11. Defendant SAN FRANCISCO COUNTY SHERIFF’S DEPARTMENT (“SFCSD”)

16 and defendant CITY AND COUNTY OF SAN FRANCISCO are each a “public entity” within the

17 definition of Cal. Govt. Code § 811.2.

18

12. Defendant VICKI HENNESSY is, and at all times relevant to this Complaint was,

19 the Sheriff of San Francisco County. An employee of the San Francisco Sheriff’s Department since

20 1975, Defendant HENNESSY started as a Sheriff’s Deputy at the old San Bruno jail, and on

21 information and belief, plaintiffs allege that Defendant HENNESSY was aware of and familiar with

22 the outside recreation provided by the Sheriff’s Department up to 2006, and the needs and

23 constitutional rights of prisoners, particularly, pretrial detainees to outside recreation and direct

24 access to sunlight. Defendant HENNESSY at times relevant to this Complaint held command and

25 policy making positions with regard to San Francisco County Jails, including San Francisco County

26 Jail 4 and County Jail 5, and has caused, created, authorized, condoned, ratified, approved or

27 knowingly acquiesced in the illegal, unconstitutional, and inhumane conditions, actions, policies,

28 customs and practices that prevail at County Jail 4 and County Jail 5, as described fully below.

4
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 5 of 25

1 There is a direct causal link between the affirmative acts and omissions of Defendant Sheriff

2 HENNESSY, as the chief supervisory member of the San Francisco Sheriff’s Department and the

3 injuries and violations of rights set forth fully below. Defendant Sheriff HENNESSY has, wholly

4 or in part, directly and proximately caused and will continue in the future, in the absence of the

5 injunctive relief which Plaintiffs seek in this Complaint, to proximately cause the injuries and

6 violations of rights set forth fully below. HENNESSY, as the chief supervisory and decision-

7 making member of the San Francisco Sheriff’s Department is sued in her individual capacity.

8

13. Defendant Sheriff PAUL MIYAMOTO was and is at all times relevant to this

9 Complaint, the Chief Deputy Sheriff and been the individual ion charge of the Custody Division.

10 The Custody Division is charged with the operation of the San Francisco County Jails. As Chief

11 Deputy Sheriff in charge of the Custody Division, Defendant MIYAMOTO has at all times

12 relevant to this Complaint held a command and policy making position with regard to San

13 Francisco County Jails. Defendant Chief Deputy PAUL MIYAMOTO has caused, created,

14 authorized, condoned, ratified, approved or knowingly acquiesced in the illegal, unconstitutional,

15 and inhumane conditions, actions, policies, customs and practices that prevail at San Francisco

16 County Jails 4 described fully below. There is a direct causal link between the affirmative acts and

17 omissions of Defendant MIYAMOTO, as the chief supervisory member of the San Francisco

18 Sheriff’s Department’s Custody Division, and the injuries and violations of rights set forth fully

19 below. Defendant Chief Deputy PAUL MIYAMOTO has, wholly or in part, directly and

20 proximately caused and will continue in the future, in the absence of the injunctive relief which

21 Plaintiffs seek in this Complaint, to proximately cause the injuries and violations of rights set forth

22 fully below. Defendant Chief Deputy PAUL MIYAMOTO is sued in his individual capacity.

23

14. Defendant JASON JACKSON is, and at all times relevant to this Complaint was, the

24 Captain in charge of San Francisco County Jail 4. At all times relevant to this Complaint,

25 Defendant JACKSON was an employee of the Sheriff who held supervisory, command and/or

26 policy-making positions, and who participated in the supervision and execution of the conduct

27 practiced in County Jail 4, complained of herein. There is a direct causal link between the

28 affirmative acts and omissions of Defendant Jackson, as the chief supervisory member of County

5
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 6 of 25

1 Jail 4, and the injuries and violations of rights set forth fully below. Defendant JASON

2 JACKSON is sued in his individual capacity.

3

15. Defendant Captain K. MCCONNELL is and at all times relevant to this Complaint,

4 was the Captain in charge of San Francisco County Jail 5. At all times relevant to this Complaint,

5 Defendant MCCONNELL was an employee of the Sheriff who held the supervisory, command

6 and/or policy-making positions for County Jail 5, and who participated in the supervision and

7 execution of the conduct complained of herein at County Jail 5. There is a direct causal link

8 between the affirmative acts and omissions of Defendant Jackson, as the chief supervisory member

9 of County Jail 5, and the injuries and violations of rights set forth fully below. Defendant

10 MCCONNELL is sued in his individual capacity.

11

16. Each and every Defendant named herein was at all times relevant to this Complaint

12 an officer or employee of the San Francisco County Sheriff’s Office, acting under the color of law

13 within the meaning of 42 U.S.C. § 1983, and acting pursuant to the authority of ASCO and within

14 the scope of their employment with ASCO.

15

17. Each and every individual Defendant was a command officer who had within his or

16 her own powers, to choose action or inaction, and had the power and authority for the training,

17 supervision and control of his or her subordinates in the manner in which Plaintiffs and members of

18 the Plaintiff class were held in custody. Every individual Defendant’s actions or inactions was a

19 primary or significant causal factor in the constitutional deprivations alleged herein, and the injuries

20 and harms complained of. Each individual Defendant had the power to effectuate the necessary

21 change to prevent the constitutional deprivations and injuries and harms complained of, but failed

22 and refused to do so. The actions or inactions of these individual, supervisory defendants set in

23 motion a series of acts by others, including his or her subordinates, which the individual supervisors

24 knew or reasonably should have known would cause others to inflict the constitutional injuries

25 complained of herein. The actions or inactions each individual Defendant took were

26 demonstrations of reckless or callous indifference to the rights of Plaintiffs and members of the

27 Plaintiff class.

28

6
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 7 of 25

1

CLASS ACTION ALLEGATIONS

2

18. Pursuant to Rules 23(a), (b2) and (b)(3) of the Federal Rules of Civil Procedure, the

3 named Plaintiffs seek to represent a Plaintiff class consisting of all inmates incarcerated at San

4 Francisco County Jail 4 (“CJ4”) and San Francisco County Jail 5 (“CJ5” ) from 2017 to the present.

5 All inmates are denied access to sunlight. No inmate was provided with access to outdoor

6 recreation.

7

Numerosity: Fed. R. Civ. P. 23(a)(1)

8

19. The members of the class are so numerous as to render joinder impracticable. CJ4

9

has a daily capacity of over 400 inmate and on information and belief plaintiffs assert that

10

approximately over 10,000 individuals are held at various times throughout each year at SFCJ4.

11

CJ5 has a daily capacity of 768 inmates and on information and belief plaintiffs assert that

12

approximately over 20,000 individuals are held at various times throughout each year at CJ5. In

13

total, over 1,100 individuals are in a San Francisco County Jail on a daily basis, and on information

14

and belief, plaintiffs assert that over 30,000 individuals on an annual basis are subjected to the

15

wrongs complained of.

16

20. In addition, joinder is impracticable because, upon information and belief, many

17

members of the class are not aware of the fact that their constitutional rights were violated and that

18

they have the right to seek redress in court. Many members of the class are without the means to

19

retain an attorney to represent them in a civil rights lawsuit. There is no appropriate avenue for the

20

protection of the class members’ constitutional rights other than a class action.

21

21. The Prisoner Class members are identifiable using records maintained in the

22

ordinary course of business by Defendants.

23

Commonality: Fed. R. Civ. P. 23(a)(2)

24 22. The class members share a number of questions of law and fact in common,
25 including, but not limited to:
26 a) whether the members of the class are denied all access to sunshine;
27 b) whether the members of the class are denied any access to outdoor
28 recreation;

7
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 8 of 25

1

c) whether the members of the class are denied and prevented from having

2

sufficient quantities of Vitamin D, which is an essential vitamin for human health;

3

d) whether SFCSD implemented a policy, practice and custom of denying and

4

preventing all inmates from access to sunshine; outdoor recreation and Vitamin D;

5

e) whether the members of the sub-class are locked in their cells for excessive

6

amounts of time, and denied access to phone calls, social interactions, and access to

7

community space;

8

f) whether the members of the class were prevented from engaging in the right

9

to file grievances against unlawful practices at SFCJ4.

10

Typicality: Fed. R. Civ. P. 23(a)(3)

11

23. The Plaintiffs’ claims are typical of those of the class. Like the other members of

12

the class, the Plaintiffs were victims of the Defendants’ policy, practice, and/or custom of denying

13

all prisoners access to outside recreation, denying all prisoners access to sunlight and sunshine, and

14

forcing members of the subclass to be excessively confined in their cells.

15

24. The legal theories under which the Plaintiffs seek relief are the same or similar to

16

those on which all members of the class will rely, and the harms suffered by the Plaintiffs are

17

typical of the harms suffered by the class members.

18

Adequacy: Fed. R. Civ. P. 23(a)(4)

19 25. The Plaintiffs have a strong personal interest in the outcome of this action, have no
20 conflicts of interests with members of the class, and will fairly and adequately protect the interests
21 of the class. The Plaintiffs have all been subjected to conditions of confinement that violate the
22 Eighth and Fourteenth Amendments of the U.S. Constitution.
23 26. The Plaintiffs are represented by experienced civil rights and class action counsel.
24 Plaintiffs’ Counsel have the resources, expertise, and experience to prosecute this action. Plaintiffs’
25 Counsel know of no conflicts among members of the class or between the attorneys and members
26 of the class.
27

28

8
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 9 of 25

1

Fed. R. Civ. P. 23(b)

27. The Plaintiff class should be certified pursuant to Rules 23(b)(2) and 23(b)(3) of the 2

Federal Rules of Civil Procedure because the Defendants have acted on grounds generally 3
applicable to class members, the interests of the Plaintiffs and potential class members are aligned,

4 and a class action is superior to other available methods for fairly and efficiently adjudicating the

5 case.

6

28 All of the Jails’ policies are centrally promulgated, disseminated, and enforced by

7 Defendants. The injunctive and declaratory relief sought is appropriate and will apply as a whole to

8 all members of the Prisoner Class.

9

29. The claims of the named plaintiffs are typical of the claims of the class. The claims of

10 the class members arise from the actions that resulted in damages to the class representatives and are
11 based on the same legal theories. PRISONER SUB-CLASS ACTION ALLEGATIONS
12 (Prisoners Excessively Confined to Their Cells and Unconstitutionally Denied Out of Cell Time
13 and Exercise Opportunity)
14 30. All Plaintiffs bring this action on their own behalf and, pursuant to Rule 23(a) and
15 (b)(2) of the Federal Rules of Civil Procedure, on behalf of a class of all prisoners in CJ4 and select

16 housing pods in CJ5, currently 7 and 4 who are now, or will be in the future, incarcerated in the San

17 Francisco County Jails (“Excessive Confinement Sub-Class”).

18

Numerosity: Fed. R. Civ. P. 23(a)(1)

19

31. The Excessive Confinement Sub-Class is sufficiently numerous that joinder of all

20 members of the class is impracticable and unfeasible. All prisoners at CJ4 (400 prisoners) and
21 approximately 96 prisoners in Pod 7A and 4A are members of the Excessive Confinement Sub-Class, so that the current sub-class numbers almost 500 prisoners. Within a year’s time, plaintiffs assert that
22 San Francisco County Jail processes and houses approximately 10,000 plus prisoners through CJ4
23 and the designated housing Pods 2A and 4A at CJ5. These prisoners are subjected to the same
24 deprivation of sunlight, outdoor recreation, and outdoor air as all prisoners. In addition, this sub-class
25 is subjected to excessive confinement wherein they are allowed out of their cells for only three to

26 three and a half hours per week. These prisoners are required to live, eat, sleep and defecate entirely

27 within their cells. Due to these policies and procedures, the prisoners in the Excessive Confinement

28 Sub-class are currently harmed or are at substantial risk of being injured by these Jail practices.

9
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1

32. The Excessive Confinement Sub-class members are identifiable using records

maintained in the ordinary course of business by Defendants. 2
Commonality: Fed. R. Civ. P. 23(a)(2) 3

4

33. There are multiple questions of law and fact common to the Excessive Confinement

Sub-class, including, but not limited to: 5
a) Whether the jail’s requirement that prisoners be confined in cells where they 6
are required to live, eat, sleep and defecate violates the Due Process Clause of the Fourteenth 7
Amendment and the Cruel and Unusual Punishment Clause of the of the Eighth Amendment

8

to the United States Constitution, and Article I, Sections 7 and 17 of the California

9

Constitution;

10

b) Whether Defendants’ scheduling to provide for only three hours out of cell per

11

week violates the Due Process Clause of the Fourteenth Amendment and the Cruel and

12

Unusual Punishment Clause of the of the Eighth Amendment to the United States

13

Constitution, and Article I, Sections 7 and 17 of the California Constitution;

14

c) Whether Defendants’ policies and practices of forcing prisoners at CJ5 to

choose between exercise and access to the telephone so that prisoners at CJ5 generally receive 15

only one and a half hours of exercise violates the Due Process Clause of the Fourteenth 16
Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the

17 United States Constitution, and Article I, Sections 7 and 17 of the California Constitution;

18

d) Whether Defendants’ policies and practices of providing the prisoners at CJ4

19

with only one opportunity each week for exercise because access to the gym is provided in

20

one three-hour block, violates the Due the Due Process Clause of the Fourteenth Amendment

21

and the Cruel and Unusual Punishment Clause of the of the Eighth Amendment to the United

22

States Constitution, and Article I, Sections 7 and 17 of the California Constitution and 15

23

CCR §1065;

24

e) Whether Defendants have been deliberately indifferent to the Excessive

Confinement Sub-class, members’ risk of injury and harm from the excessive confinement 25

and the limitations and manner of providing access to the limited exercise, insufficient as it is; 26
34. Defendants are expected to raise common defenses to these claims, including denying
27 that their actions violate the law.

28

10
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1

Typicality: Fed. R. Civ. P. 23(a)(3)

35. The claims of the named Plaintiffs are typical of the claims of the members of the 2

Excessive Confinement Sub-class, as their claims arise from the same policies, practices, and courses 3
of conduct, and their claims are based on the same theory of law as the Prisoner Class claims.

4

Adequacy: Fed. R. Civ. P. 23(a)(4)

5

36. Plaintiffs will fairly and adequately represent and protect the interests of the Excessive

6 Confinement Sub-class, and diligently service as Class Representatives. Plaintiffs’ interests are co-

7 extensive with those of the Excessive Confinement Sub-class, and Plaintiffs have no conflict(s) of

8 interest that would be antagonistic to those of the other class members. Plaintiffs have retained

9 counsel who are competent and experienced in complex class action litigation and prisoner’s rights
10 litigation and who possess the resources necessary to fairly and adequately represent the Prisoner
11 Class. Fed. R. Civ. P. 23(b)
12 37. This action is also maintainable as a class action pursuant to Federal Rule of Civil
13 Procedure 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form the basis
14 of the claims of the Prisoner Class and Excessive Confinement Sub-class, are common to and apply
15 generally to all members of the Prisoner Class. All of the Jails’ policies are centrally promulgated,
16 disseminated, and enforced by Defendants. The injunctive and declaratory relief sought is appropriate
17 and will apply as a whole to all members of the Excessive Confinement Sub-class.

18

38. The claims of the named plaintiffs are typical of the claims of the Excessive

19 Confinement Sub-class. The claims of the Excessive Confinement Sub-class arise from the actions 20 that resulted in damages to the class representatives and are based on the same legal theories.

21

STATEMENT OF FACTS

22

39. San Francisco County operates two main detention jails, County Jail 4 and County

23 Jail 5. County Jail 4 is on the 7th floor of the Hall of Justice, which is located at 850 Bryant Street.

24 The Hall of Justice and County Jail 4 were constructed in 1962. The Hall of Justice is still in

25 operation along with County Jail 4. County Jail 4 has a capacity for 402 inmates and holds both

26 pretrial and sentenced prisoners. County Jail 5 is located on watershed land on the outskirts of San

27 Mateo County. Built in 2006, County Jail 5 replaced the former San Bruno Jail, and has a capacity

28 of 768 inmates. Both County Jail 4 and County Jail 5 incarcerate only men.

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1

40. The old San Bruno Jail had an ample outdoor field with a footprint that was

2 approximately the same size as the building itself. Not only was there an outside yard, but the

3 defendants encouraged prisoners to engage in outdoor activities and a sheriff’s deputy, Catherine

4 Sneed, started the San Francisco County Jail Garden Project, which operated from 1982 through

5 1992 wherein prisoners cultivated plants for use on public works projects; each year, hundreds of

6 young children visit the farm to experience farm-based educational programming. The San

7 Francisco Sheriff’s Department understood that engaging in productive outdoor activities was one

8 means of reducing recidivism amongst prisoners.

9

41. However, during the construction of County Jail 5, completed in 2006, the County

10 made the inexplicable, deliberate decision to design the new facility in such a manner for the

11 purpose of preventing and denying all prisoner access to the outdoors, denying all prisoner access to

12 sunshine, and even to indirect daylight. This was 17 years after the 9th Circuit held “(t)hat the

13 denial of fresh air and regular outdoor exercise and recreation constitutes cruel and unusual

14 punishment,” see Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). The old San Bruno jail

15 building remains standing. The old, spacious outdoor yard is still there. Access to this yard could

16 be provided to current prisoners in County Jail 5.

17

42. Prisoners in County Jail 5 are now bathed, 24/7, wholly in artificial fluorescent

18 lighting. There are sixteen housing pods with 24 cells each. Cells hold two prisoners, so each

19 housing pod has the capacity of 48 prisoners. Each Pod is a semi-circle. The cells are on two tiers,

20 facing toward an open center. Along the opposite wall is the sheriff deputy’s station, and between

21 the deputy’s station and the cells is the common area, usually containing tables, benches and chairs.

22 In each housing pod, there is one room which is named a gym. Approximately the size of the paint

23 area of a basketball court, prisoners have access to the gym during what is called “pod” time. The

24 gym has a basketball hoop and limited exercise equipment.

25

43. Inside the gym, there is a glass slit on the wall, very close to the ceilings. The slit

26 permits outside air to enter, and while it lets in some light, it never lets in sunlight. The glass is so

27 high that prisoners cannot see the outside through the window except for a small sliver of the sky

28 from limited angles. Depending on the housing pod, prisoners have varying amounts of out of cell

12
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1 time and access to the gym. In Housing Pod 7A (Intake), and 4A (Ad Seg) prisoners are locked in

2 their cell for excessive amounts of time. These prisoners are permitted out of their cells, a half hour

3 total, per day.

4

44. In 4A, each cell is unlocked one at a time, so the two prisoners in each cell have no

5 opportunity to socialize or communicate with anyone other than themselves or jail guards. Since

6 there is no shower or phone in these cells, prisoners have to share the one phone in the POD to call

7 lawyers and family. And if their half hour out of cell time is in the early morning, then there is no

8 real opportunity to make legal calls or calls to family. The limitation of a half hour also leaves

9 them with little time to use the gym room and exercise. These cells do not have showers, so

10 prisoners are provided access to showers, every other day, for approximately 10 minutes each.

11 These prisoners are required to eat all of their meals inside their cells. They live, sleep, eat and

12 defecate in these same small cells. These cells are solid in all directions so that even sound has

13 limited penetration into their cell.

14

45 In 7A, the bottom tier is allowed out as a group for a half hour per day of Pod time.

15 During this time, the 12 prisoners have to share access to phones and the gym. Otherwise, they are

16 completely locked inside their cells for the remaining 23.5 hours of the day.

17

46. Suffering confinement for 23.5 hours a day is a form of extreme social and sensory

18 isolation, and environmental deprivation. The American Correctional Association calls

19 confinement of at least 22 hours per day to be segregation or solitary confinement.1 The United

20 Nations standards, also called the Mandela Rules, say:

21

Every prisoner who is not employed in outdoor work shall have at least one

22

hour of suitable exercise in the open air daily if the weather permits. (emphasis added)2

23 47. The U.S. State Department created a handbook to provide embassy officials around

24 the world with a basic understanding of international standards for correctional systems. That

25 handbook states:

26

27

28 1 American Correctional Association (ACA) Restricted Housing Standard 2016 ACA p. 3
2 Mandela Rules, Rule 43 at 12/33.
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1

The prisoners should have access to recreation for no less than one hour per day. (Emphasis added)3.

2 48. County Jail 4’s layout is in corridors with cells lining the corridors. Cell sizes can be
3 for a single prisoner, two prisoners, six prisoners or 12 prisoners. No prisoner in County Jail 4 has
4 access to the outdoors or sunshine. Only prisoners in one row of Cells, A block, even have access

5 to natural light and outside air because there are some windows across the hall from A block. All

6 the other cells in County Jail 4 have no access to natural light or fresh air. None of the prisoners in

7 County Jail 4 ever have access to outdoor recreation or direct sunlight.

8

49. In the CJ4 12-person cells, the cells contain a shower and toilet. For these prisoners,

9 they are permitted out of their cells at most, three hours a week to access the gym. Access is all in

10 one three-hour chunk, and sometimes the times for access are early morning or other hours which

11 are not conducive to exercise. The other smaller cells in CJ4 do not have a shower, so the prisoners

12 in cells smaller than the 12-person cell, in addition to one three hour block for access to the gym,

13 are provided access to a shower, twice a week for ten minutes each. The remainder of the time, all

14 prisoners in CJ4 are completely locked up in their cells, forced to live, eat, sleep, urinate and

15 defecate in place and remain caged.

16

50. All San Francisco County Jail cells are small, and primarily occupied by metal beds

17 and a toilet. There is no room for active movement, or large muscle group movement. There is no

18 room for walking. Prisoners cannot walk for more than one or two seconds before being obstructed

19 by hard objects, the walls, the bed, the toilet, or in CJ4, other prisoners.

20

51. In 2018, 85% of all inmates in San Francisco County Jails were pre-trial and non-

21 sentenced.4

22

EFFECTS ON INMATES OF EXCESSIVE CONFINEMENT

23

52. Prisoners at SFCJ4 suffer from a number of illnesses as a result of the excessive

24 confinement, lack of access to meaningful exercise, and complete denial of outdoor exercise and

25 sunshine. These health issues include cardiovascular disease, hypertension, negative impacts on

26

27 3 A Practical Guide to Understanding and Evaluating Prison Systems, United States Department of State, page 23. 28 4 Board of State and Community Corrections, Jail Population Trends for 2018. http://www.bscc.ca.gov/m_dataresearch/

14
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1 blood sugar including adult onset diabetes and lowered insulin sensitivity, headaches, migraines,

2 anxiety and depression, weight increase and obesity. Lack of exercise also predisposes the

3 prisoners to non-cardiovascular chronic diseases including colon cancer. As individuals who have

4 low levels of physical activity and fitness, these prisoners are subject to a higher death rate.

5

53. On information and belief, plaintiffs allege that all prisoners in CJ4 and CJ5 are

6 deficient in Vitamin D, and suffer from a variety of health issues resulting from Vitamin D

7 deficiency, including soft bones, muscle weakness, bone pain, cardiovascular disease and cognitive

8 impairment (inability to think clearly and analyze logically). Whereas all the prisoners are

9 allegedly accused by the State of making bad choices, defendants are purposely creating an

10 environment where plaintiffs and members of the class are deprived of the fundamental building

11 blocks, such as Vitamin D, necessary for clear thinking and rational, logical decision making, and

12 creating an environment to set plaintiffs and members of the class, to repeatedly fail.

13

54. KENYON NORBERT is currently a prisoner in County Jail 4. Previously he was

14 incarcerated in County Jail 5. He has been in custody, as a pretrial detainee since July 8, 2014.

15 Since his arrest, he has spent 1,788 days without ever feeling the sun on his skin or being outdoors.

16 In addition, during his incarceration, for the majority of time which was in County jail 5, he only

17 received 30 minutes per day of out of cell time, and now that he is in County Jail 4, he is in a two-

18 person cell, so he receives 3 hours per week of access to the gym, and two showers a week.

19

55. KENYON NORBERT has a criminal case in which he is in pro per, and handling

20 the legal representation. Therefore, it is essential that he have access to the phone. Because there

21 was only one phone available while he was held in County Jail 5, he and his cell mate split the

22 phone access time, and he was able to use the phone only for 15 minutes and have access to the

23 gym for 15 minutes a day. Therefore, in reality, he never received 3 hours a week of exercise

24 opportunity, and had at most 1 hour and 30 minutes a week due to the competing need to access the

25 telephone. In the 255 weeks he has been incarcerated, he has received on approximately only 3.5

26 hours out of cell time per week. From his prolonged isolation, he has and continues to suffer

27 significant harm.

28

15
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1

56. KENYON NORBERT has gained almost 100 pounds, has a hard time sleeping,

2 experiences chronic insomnia, experiences depression, anxiety and agitation and believes himself to

3 be deficient in Vitamin D. He considers himself factually innocent of the crimes he is charged with

4 and is actively working to prove his innocence at trial. Therefore, being held in an environment

5 that significantly contributes to reduced health, reduced mental health and reduced mental acuity

6 seriously impedes his ability to prove his innocence.

7

57. TROY MCALLISTER is currently a prisoner in County Jail 5. He has been in

8 custody since July 29, 2015. He is a pretrial detainee. During this period of time he has availed

9 himself to every program and every course offered. For the past year, he has been an exemplary

10 inmate worker.

11

58. TROY MCALLISTER is falling into despair, not having had the opportunity for

12 outdoor recreation and to be in the sun for 3 years 10 months. He is concerned that despite all his

13 efforts, he will have no future. As a black man, already subject to poor health outcomes, he is

14 concerned about his health, particularly the long-term negative health effects due to his lack of

15 access to sunlight and Vitamin D deficiency, and the prospect of early mortality.

16

59. MARSHALL HARRIS is currently a prisoner in County Jail 5. He has been in

17 custody since August 16, 2017. He is a pretrial detainee. He is currently in Housing Unit 7A, and

18 permitted only 30 minutes a day of out of cell time. As a pretrial detainee who has not yet even had

19 a preliminary hearing, he is concerned that the long-term denial of access to sunlight is detrimental

20 to his ability to remember details, to be cognitively clear, and to communicate well, all abilities he

21 needs to assist in his defense.

22

60. ARMANDO CARLOS is currently a prisoner in County Jail 5. He has been in

23 custody since July 18, 2011. He was previously incarcerated at CJ4, and transferred to CJ5 in July,

24 2016 after he developed an abcess due to exposure to sewage at CJ4. He was a pretrial detainee

25 from his arrest through September 2018. He was convicted of one count of robbery in September

26 2018, and remains pre-sentenced. Armando is Filipino, and prior to his incarceration was a person

27 with brown skin. During his almost 8 years in custody, he has never had the sunshine on him. He

28 has never been exposed to sunlight. Armando’s skin is now colorless, almost translucent. Looking

16
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1 at his arm, you can see through his skin and see all of his blue veins. Armando is afraid of what

2 will happen, if he ever gets into the sun since it has been so long since his skin has experienced any

3 sunlight. Since 2012, he has been experiencing migraine headaches for which he is give Excedrin

4 or some other over the counter pain medication. He has also suffered nerve damage, for which the

5 Jail has not diagnosed. His right arm has lost sensation and mobility. In addition, he is now being

6 held in an isolation cell which has contributed to the harm he has suffered and continues to suffer.

7 He feels passive, has lost interest in life, he has no energy and is fatigued all the time. He has

8 experienced loss of social skills, anxiety, agitation and depression.

9

61. ARMANDO CARLOS has been incarcerated in Housing Unit 2 since September

10 2018; during this time, he has been locked in his cell with his cell mate for 23.5 hours a day, and

11 allowed out only a half hour each day. With only a half hour a day out of cell, he receives less than

12 3 hours per week of exercise opportunity. When he is let out of his cell, he has to choose between

13 calling family and friends and trying to maintain social connections, which is increasingly difficult

14 He is not motivated to move, and with the confinement in isolation, and the ensuing sensory

15 deprivation, he has lost interest and motivation to exercise.

16

62. MONTRAIL BRACKENS is a pretrial detainee in CJ4. He has been incarcerated

17 since December 11, 2012. He is pretrial. He has spent 2,371 days without exposure to sunshine.

18 As an inmate in CJ4, of the 56,904 hours he has spent in his cell, he has been allowed out only

19 1016 hours for exercise, a mere 1.7% and none of that small amount of time was for outdoor

20 recreation.

21

63. MICHAEL BROWN is a pretrial detainee currently incarcerated in CJ5. He has

22 been incarcerated for almost one year. He was incarcerated in CJ4 for three and a half months,

23 before being transferred to CJ5. While incarcerated in CJ4, he was allowed out of his cell once a

24 week for 3 hours to exercise. Now at CJ5, he is permitted out of his cell only for half hour a day.

25 He has had no access to outdoor recreation, not a minute of sunlight, and has been required to eat,

26 live, and defecate in his cell. The social, sensory and environmental deprivation of being locked in

27 a solid cell for 23.5 hours a day, the difficulty of accessing the telephone, and the competing

28

17
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1 limitation of access to exercise has exacerbated his asthma, caused him to experience significant

2 body pain, including back pain in his kidney region, depression, anxiety and agitation.

3

64. JOSE POOT is a pretrial detainee in CJ4. He has been incarcerated since June 14,

4 2016. He has spent 1,062 days without exposure to sunshine. As an inmate in CJ4, he has spent

5 25,488 hours in his cell, where he is required to eat, sleep, defecate and live. In total, he has been

6 allowed out for only 453 hours for exercise, a mere 1.7% of time spent incarcerated, and none of

7 that small amount of time was for outdoor recreation. In the time that he has been incarcerated,

8 because he has been completely denied sunlight and sunshine, he has lost all color in his skin,

9 which is now completely white. In addition, because he is primarily Spanish speaking, being

10 locked up in a cell for 24 hours a day has seriously contributed to his isolation and the injuries he is

11 suffering due to his long-term denial of social interaction, including regular and frequent headaches.

12

CITY AND COUNTY OF SAN FRANCISCO’S RESPONSES

13

65. In 2015, defendant City and County of San Francisco refused a grant to help pay for

14 a new facility to replace CJ4. Instead, defendant City and County of San Francisco formed a work

15 group tasked with ultimately closing CJ4, due in large part to its dilapidation and lack of required

16 facilities for the health and well-being of prisoners. Instead of closing CJ4, for the past three and a

17 half years, defendants have operated CJ4, kept the prisoner population full, and continually

18 subjected prisoners in CJ4 to inhumane and unconstitutional conditions. The Eighth Amendment

19 requires that prisoners be treated as human beings. The American Society for the Protection of

20 Animals (ASPCA) promulgated standards that dogs kept in animal shelters be provided with the

21 opportunity for exercise outside of their cells, daily5. Defendants do far less for human beings

22 under their control and custody.

23

66. Defendant Hennessy is quoted in a San Francisco Chronicle article on October 26,

24 2018 as stating, “County Jail No. 4 is an embarrassment – it’s an embarrassment to the city.” Yet,

25 during her tenure as Sheriff, she has taken no steps to improve or ameliorate the conditions at

26 County Jail 4.

27

67. Upon receiving these grievances, defendants’ responses included:

28 5 https://www.aspcapro.org/resource/shelter-checklists-based-asv-guidelines

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1

• “County Jail#5 nor the jails in the SF Sheriff’s system are designed for outdoor recreation.”

2

• “Your basketball area complies with Title 15 which states that inmates shall have available a

3

recreational area separate to the housing area that allows them to exercise the large muscle

4

groups at least three hours in a seven-day period.”

5 • “When County Jail Five was built, the SFSD applied for and was granted a waiver by the

6

State Board of Community Corrections. This waiver was granted based on the alternate

design that allows for the flow of fresh air directly into the gym area.” 7

8

• “When County Jail Four was constructed there was no requirement for gym or outdoor

recreation. In the mid-1980’s a gym was added to the seventh floor for the required

9

recreation per Title 15 and was approved by the State.”

10 FIRST CLAIM FOR RELIEF
11 EIGHTH AMENDMENT - DEPRIVATION OF FEDERAL CIVIL RIGHTS
12 UNDER 42 U.S.C. § 1983 AGAINST ALL DEFENDANTS
13 68. Plaintiffs repeat and re-allege each and every allegation contained in the above
14 paragraphs 1-67 with the same force and effect as if fully set forth herein.
15 69. At all relevant times herein, SFCSD has been responsible for operating the San
16 Francisco County Jail 4 and County Jail 5.
17 70. At all relevant times herein, Defendants SFCSD, HENNESSY, MIYAMOTO,
18 JACKSON, and MCCONNELL have established and/or followed policies, procedures, customs,
19 and/or practices that subject Plaintiffs and all class members to the harmful and inhumane effects of
20 confinement and total denial of access to sunlight and sunshine; denial even to natural daylight; and
21 isolation from the outdoors. Defendants subject Plaintiffs and the Prisoner Class to a substantial
22 risk of serious harm and injury by depriving Plaintiff and the Prisoner Class to an essential vitamin,
23 Vitamin D. Defendants further subject the Prisoner sub-class to the harm caused by excessive
24 confinement, inadequate physical exercise, social isolation and environmental deprivation through
25 forcing members of the sub-class to suffer confinement of up to 23.5 hours a day in small,
26 inadequate cells, including eating, sleeping and defecating in these cells. These policies and
27 practices have been, and continue to be, implemented by Defendants HENNESSY, MIYAMOTO;
28

19
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1 JACKSON, MCCONNELL and their agents, officials, employees and all persons acting in concert

2 with them under color of state law, and are the proximate cause of Plaintiffs’ and the Prisoner

3 Class’ ongoing deprivation of rights secured by the United States Constitution under the Eighth

4 Amendment.

5

71. Defendants have been and are aware of all of the deprivations complained of herein,

6 and have condoned or been deliberately indifferent to such conduct.

7

SECOND CLAIM FOR RELIEF

8

FOURTEENTH AMENDMENT - DEPRIVATION OF FEDERAL CIVIL RIGHTS

9

UNDER 42 U.S.C. § 1983 AGAINST ALL DEFENDANTS

10

72. Plaintiffs repeat and re-allege each and every allegation contained in the above

11 paragraphs 1-67 with the same force and effect as if fully set forth herein.

12

73. At all relevant times herein, SFCSD has been responsible for operating the San

13 Francisco County Jail 4 and County Jail 5.

14

74. At all relevant times herein, Defendant SFCSD, HENNESSY, MIYAMOTO,

15 JACKSON, and MCCONNELL have established and/or followed policies, procedures, customs,

16 and or practices that subject Plaintiffs and all class members to excessive confinement and the

17 harmful and inhumane effects of total denial of access to sunlight and sunshine; denial even to

18 natural daylight; and isolation from the outdoors. Defendants subject Plaintiff and the Prisoner

19 Class to a substantial risk of serious harm and injury by depriving Plaintiff and the Prisoner Class to

20 an essential vitamin, Vitamin D. Defendants further subject the Prisoner sub-class to the harm

21 caused by excessive confinement, inadequate physical exercise, social isolation and environmental

22 deprivation through forcing members of the sub-class to suffer confinement of up to 23.5 hours a

23 day in small, inadequate cells, including eating, sleeping and defecating in these cells. These

24 policies and practices have been, and continue to be, implemented by Defendants HENNESSY,

25 MIYAMOTO; JACKSON, MCCONNELL and their agents, officials, employees and all persons

26 acting in concert with them under color of state law, and are the proximate cause of Plaintiffs’ and

27 the Prisoner Class’ ongoing deprivation of rights secured by the United States Constitution under

28 the Fourteenth Amendment.

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1

75. Defendants have been and are aware of all of the deprivations complained of herein,

2 and have condoned or been deliberately indifferent to such conduct.

3

WHEREFORE, Plaintiffs and the Prisoner Class they represent request relief as outlined

4 below.

5

THIRD CAUSE OF ACTION

(Article I, Section 7 of the California Constitution) 6

(ALL PLAINTIFFS and the Prisoner Class Against ALL DEFENDANTS) 7

8

76. Plaintiffs re-allege and incorporate by reference herein all allegations previously made

9 above in paragraphs 1-67.

10

77. Incarceration without any access to sunlight, sunshine, outdoor exercise, and in other

11 situations total lacking of outdoor air, coupled with isolation and confinement in excess of 23 hours a

12 day, imposes an atypical, substantial, and different hardship on the prisoner in relation to the ordinary

13 incidents of incarcerated life, so as to create a liberty interest protected by due process.

14

78. By their policies and practices described above, Defendants subject Plaintiffs and the

15 Prisoner Class they represent, to a substantial risk of harm due to the denial of due process in

16 relationship to housing decisions and incarceration conditions, including placement in cells for

17 excessive amounts of time and complete lack of access to natural air and light, and adequate exercise.

18 These policies and practices have been, and continue to be, implemented by Defendants

19 HENNESSY, MIYAMOTO; JACKSON, MCCONNELL and their agents, officials, employees and

20 all persons acting in concert with them under color of state law, and are the proximate cause of

21 Plaintiffs’ and the Prisoner Class’ ongoing deprivation of rights secured by California Constitution,

22 Article I, Section 7.

23

79. Defendants have been and are aware of all of the deprivations complained of herein,

24 and have condoned or been deliberately indifferent to such conduct.

25

WHEREFORE, Plaintiffs and the Prisoner Class they represent request relief as outlined

26 below. 27 28

FOURTH CAUSE OF ACTION (Article I, Section 17 of the California Constitution) (ALL PLAINTIFFS and the Prisoner Class Against ALL DEFENDANTS)

21
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 22 of 25

1

80. Plaintiffs re-allege and incorporate by reference herein all allegations previously made

2 above in paragraphs 1-67.

3

81. By their policies and practices described above, Defendants subject Plaintiffs and the

4 Prisoner Class they represent, to a serious harm and injury from the harmful and inhumane effects of

5 total denial of access to sunlight and sunshine; denial even to natural daylight; and isolation from the

6 outdoors. Defendants subject Plaintiff and the Prisoner Class to a substantial risk of serious harm and

7 injury by depriving Plaintiff and the Prisoner Class to an essential vitamin, Vitamin D. Defendants

8 further subject the Prisoner sub-class to the harm caused by excessive confinement, inadequate

9 physical exercise, social isolation and environmental deprivation through forcing members of the

10 sub-class to suffer confinement of up to 23.5 hours a day in small, inadequate cells, including eating,

11 sleeping and defecating in these cells. These policies and practices have been, and continue to be,

12 implemented by Defendants and their agents or employees in their official capacities, and are the

13 proximate cause of Plaintiffs’ and the Prisoner Class’s ongoing deprivation of rights secured by the

14 California Constitution, Article I, Section 17.

15

82. Defendants have been and are aware of all of the deprivations complained of herein,

16 and have condoned or been deliberately indifferent to such conduct.

17

WHEREFORE, Plaintiffs and the Prisoner Classes they represent request relief as outlined

18 below. 19 20

FIFTH CAUSE OF ACTION NEGLIGENCE

21

83. PLAINTIFFS and all class and sub-class members they represent repeat and re-allege

22 herein all allegations previously made above in paragraphs 1-67.

23

84. The Fifth Cause of Action is asserted by Plaintiffs and the class and sub-class

24 members against all Defendants.

25

85. Each Defendant had a legal duty to maintain custody and control of Plaintiffs and the

26 class members they represent, so as to not violate their constitutional rights, including the right to not

27 to be subjected to cruel and unusual punishment, or to have their rights violated so as to raise a due
process claim including the right to time out of cell, outdoor recreation, exercise, sunlight and 28
sunshine; and not be subjected to social and environmental deprivations.

22
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 23 of 25

1

86. At all relevant times herein, each Defendant failed to exercise the ordinary care or skill

in the management of CJ4 and CJ5 by failing or refusing to provide Plaintiffs and the class members 2

they represent with access to the outdoors and sunshine, and forcing members of the sub-class to 3
suffer social and environmental deprivation through confinement of up to 23.5 hours a day in small,

4 inadequate cells, including eating, sleeping and defecating in these cells.

5

87. At all relevant times herein, named Plaintiffs and class members herein have been

6 injured by the regular and daily social and environmental and physical deprivations that was and

7 continues to be caused by defendants and each of their failure to exercise the ordinary care or skill

8 in the management of the properties and facilities commonly known as CJ4 and CJ5.

9

88. At all relevant times herein, named Plaintiffs’ and class members’ injuries were

10 proximately caused by Defendants and each of their failures to exercise ordinary care or skill in the

11 management of the properties and facilities commonly known as CJ4 and CJ5; these injuries include,

but are not limited to, headaches, severe depletion of Vitamin D, increased body pain, headaches, loss 12
of mental acuity, depression, anxiety, and depletion of melanin in their skin. 13
WHEREFORE, Plaintiffs and class members pray for relief as hereunder appears.

14

SIXTH CAUSE OF ACTION

15

Intentional Infliction of Emotional Distress

16 (Cal. Gov. Code § 820(a))

17

89. Plaintiffs repeat and re-allege each and every allegation contained in the above

18 paragraphs 1-67 with the same force and effect as if fully set forth herein.

19

90. Defendants’ conduct in adopting a policies, customs, and practices of incarcerating

20 inmates where they are completely denied all access to outdoor recreation, to outdoor light ,

21 sunshine and sunlight, where some inmates are forced to live, eat and sleep in small, cramped cells

22 up to 23.5 hours a day is extreme and outrageous conduct that intentionally or recklessly disregards

23 the probability of causing emotional distress.

24

91. Defendants and their policies, customs, and practices of incarcerating inmates where

25 they are completely denied all access to outdoor recreation, to outdoor light , sunshine and sunlight,

26 where some inmates are forced to live, eat and sleep in small, cramped cells up to 24 hours a day

27 are the proximate cause of severe and extreme emotional trauma and distress suffered by Plaintiffs

28 and class members.

23
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 24 of 25

1

92. Defendants and their policies, customs, and practices of incarcerating inmates where

they are completely denied all access to outdoor recreation, to outdoor light , sunshine and sunlight, 2

where some inmates are forced to live, eat and sleep in small, cramped cells up to 24 hours a day 3
exceed all bounds of conduct that is usually tolerated in a civilized community for treatment of

4 persons who are pre-trial, not been convicted, and presumed innocent.

5

WHEREFORE, Plaintiffs and class members prays for relief as hereunder appears.

6

REQUEST FOR RELIEF

7

Plaintiffs and the class and subclass they represent have no adequate remedy at law to redress

8 the wrongs suffered as set forth in this Complaint. Plaintiffs have suffered and will continue to suffer
9 irreparable injury as a result of the unlawful acts, omissions, policies, and practices of the Defendants
10 as alleged herein, unless Plaintiffs are granted the relief they request. Plaintiffs and Defendants have
11 an actual controversy and opposing legal positions as to Defendants’ violations of the constitutions and laws of the United States and the State of California. The need for relief is critical because the
12 rights at issue are paramount under the constitutions and laws of the United States and the State of
13 California.
14 WHEREFORE, PLAINTIFFS and all class members pray for judgment and the following
15 relief against DEFENDANTS as follows:
16 1. Injunctive relief directing DEFENDANTS, absent exigent circumstances to:
17 a. Prohibit locking any inmate in a cell, in excess of 20 hours per day;
18 b. Order defendants to provide every inmate with no less than one hour per day of
19 outdoor recreation, daily;
20 c. Provide every inmate who requests, a physical examination including test
21 necessary to determine each inmate’s level of Vitamin D and where needed, Vitamin D
22 supplements;
23 d. Provide every inmate who requests it, the necessary physical and mental health
24 care;
25 2. Award compensatory and punitive damages;
26 3. Award declaratory relief according to proof;
27

28

24
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

Case 3:19-cv-02724-SK Document 1 Filed 05/20/19 Page 25 of 25

1

4. Award PLAINTIFFS costs and expenses of this action and reasonable attorney's fees

2 in accordance with 42 U.S.C. § 1988 and other appropriate authority;

3

5. An order retaining jurisdiction of this case until Defendants have fully complied with

4 the orders of this Court, and there is a reasonable assurance that Defendants will continue to comply

5 in the future absent continuing jurisdiction; and

6

6. Such other and further relief as the case requires and the Court deems just and proper.

7

8 DATED: May 20, 2018

LAW OFFICE OF YOLANDA HUANG

9

10

__/s/ Yolanda Huang________________ Yolanda Huang

11

Counsel for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

25
COMPLAINT Norbert, et al. v. San Francisco County Sheriff’s Department et al., United States District Court, Northern District of California, Case No._______

 
 Case 3:19-cv-02724-SK Document 110 Filed 01/31/20 Page 1 of 58

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

KENYON NORBERT, et al.,

8

Plaintiffs,

Case No. 19-cv-02724-SK

9

v.

10

SAN FRANCISCO SHERIFF'S

DEPARTMENT, et al., 11

Defendants.

12

ORDER REGARDING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANTS’ MOTION TO DISMISS
Regarding Docket Nos. 8, 11, 12; 37, 44, 51

13

14

Plaintiffs Kenyon Norbert, Montrail Brackens, Jose Poot, Marshall Harris, Armando

15 Carlos, Michael Brown, and Troy McAllister (“Plaintiffs”) are individuals currently incarcerated
16 in San Francisco County Jail 4 (“County Jail 4”) and San Francisco County Jail 5 (“County Jail
17 5”). On May 20, 2019, Plaintiffs filed a class action complaint (“Complaint”) for declaratory and
18 injunctive relief and damages, alleging that the conditions of their confinement violate the Eighth
19 and Fourteenth Amendments to the United States Constitution, Sections 7 and 17 of the California
20 Constitution, and 15 C.C.R. 1065. (Dkt. 1.) Plaintiffs bring their claims against the San Francisco
21 County Sheriff’s Department and the City and County of San Francisco, as well as against Sheriff 22 Vicki Hennessy, Captain Jason Jackson, Captain Kevin McConnell, and Chief Deputy Sheriff Paul 23 Miyamoto in their individual capacities (“Defendants”). (Id.) On June 27, 2019, Plaintiffs filed a
motion for a preliminary injunction. (Dkt. 8.) Defendants oppose the motion. (Dkt. 11.) On 24
August 30, 2019, Defendants moved to dismiss the action. (Dkt. 37.) Plaintiffs oppose the 25
motion. (Dkt. 44.) Because the two motions are predicated on the same set of facts and raise 26
interlocking legal issues, the Court addresses them simultaneously. 27
In their motion for a preliminary injunction, Plaintiffs ask the Court to issue an order: 28

Case 3:19-cv-02724-SK Document 110 Filed 01/31/20 Page 2 of 58

United States District Court Northern District of California

1

(1) requiring that all inmates in County Jails 4 and 5 receive a minimum of one hour

2

per day of time out of their cells and a minimum of three hours per week of outdoor

3

recreation time “distributed over 7 days (and not just in one chunk);”

4

(2) requiring that inmates in administrative segregation receive “equal out of cell time,

5

and programs;” and

6

(3) requiring that inmates in “disciplinary isolation” receive “genuine and full reviews

7

as required by state regulations.”

8 (Dkt. 8 (emphasis in original).) Later, in a supplemental memorandum submitted even after

9 opposition and reply, Plaintiffs requested the following:

10

(4) that any inmate who has been in administrative segregation more than one year be

released to general population “unless defendants comply with the hearing and the 11

hearing demonstrates that the [inmate’s] release would ‘severely endanger the lives 12
of inmates or staff or the security of the institution’;”1 13
(5) that any inmate held in administrative segregation more than one year be “provided 14
mental health support upon release back into the general population;” 15
(6) that inmate held in administrative segregation more than one year be afforded a 16
hearing “as outlined by Wright v. Rushen;” and
17 (7) within 48 hours of being placed in administrative segregation, the inmate be
18 provided with written notice of the reasons for his placement, with specific

19 guidelines for the process.

20 (Dkt. 79.)

21

On August 16, 2019, the Court conducted judicial site visits to both County Jails 4 and 5.

22 Captain Kevin McConnell (“McConnell”) led the visits for the Court, Plaintiffs’ counsel, and

23 Defendants’ counsel. Plaintiffs’ counsel and staff took photographs, videos, and readings with a

24 light meter pursuant to a process the Court developed both to protect inmate privacy and to meet

25 concerns about security. After the visits, the Court posed written questions to Defendants

26

27

1 Plaintiffs cite the district court’s preliminary injunction, which was reversed but attached

28

to the appellate court decision as an appendix, in Wright v. Rushen, 642 F.2d 1129, 1138 (9th Cir. 1981).

2

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1 regarding the site visits (Dkt. 36), to which Defendants responded (Dkts. 43 (redacted version), 67

2 (sealed version)). And on October 23, 2019, the Court held an evidentiary hearing where both

3 parties and the Court had the opportunity to hear testimony from and ask questions of Plaintiffs’

4 expert witness, Dr. Jamie Zeitzer. (Dkt. 69.) For the reasons set forth below, the Court GRANTS

5 IN PART and DENIES IN PART Plaintiffs’ motion for a preliminary injunction.

6

Separate from Plaintiffs’ motion for preliminary injunction, Defendants move to dismiss

7 the Complaint. Defendants argue that Plaintiffs’ Eighth Amendment claim is inapposite because
8 Plaintiffs are pretrial detainees held before conviction of a crime.2 (Dkt. 37.) They further
9 contend that Plaintiffs’ claims for mental and emotional suffering are precluded by the Prison
10 Litigation Reform Act, and that all state law claims are barred by immunities established in the
California Government Code. (Id.) Defendants maintain that all individual Defendants are 11
entitled to qualified immunity as to all claims. For the reasons set forth below, the Court 12
GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss. 13
I. INTRODUCTION. 14
Plaintiffs contend that the amount of light, type of light, and variance in light from day to 15
night are not sufficient to maintain the health of inmates in San Francisco County’s jails and that, 16
as a result, the conditions of their confinement violate the Eighth and Fourteenth Amendments. 17
Plaintiffs also challenge the conditions of confinement for inmates who are required to spend 23 ½ 18
hours in their cells every day. The determination about the sufficiency of the light inmates receive 19
is scientific and depends to some degree on information that the Court currently does not have.
20 The Court finds that there is currently insufficient evidence, even accepting the opinion of
21 Plaintiffs’ expert witness, to determine if the amount of light, type of light, and variance between
22 light during the day and night support Plaintiffs’ claim of harm. The Court finds that depriving

23 pretrial detainees of access to direct sunlight is not a violation of the Eighth or Fourteenth

24 Amendments for inmates who receive sufficient time out of cell and exercise in indirect sunlight.

25

However, the Court finds that, for inmates who are required to spend 23 ½ hours in their

26 cell each day, the amount of exercise allotted – 180 minutes per week in County Jail 4 and 210

27

28

2 Throughout this Order, the Court will refer to pretrial detainees separately from inmates who have been convicted but are awaiting sentencing.

3

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United States District Court Northern District of California

1 minutes per week in County Jail 5, respectively – is not sufficient to offset Plaintiffs’ restriction to

2 their cells. The conditions of those Plaintiffs’ confinement therefore violate the Eighth and

3 Fourteenth Amendments. The issue is not whether the inmates who are confined to their cells for

4 23 ½ hours a day are allowed to exercise outside but whether the amount of time they receive to

5 exercise out of their cells and spend time out of their cells violates the Constitution. That society

6 would incarcerate a human being – who has not yet been found guilty and therefore is legally

7 innocent and who has not committed a specific disciplinary violation – by locking him up in a

8 small cell for 23 ½ hours a day is unacceptable.

9

II. BACKGROUND.

10

Plaintiffs Kenyon Norbert, Montrail Brackens, and Jose Poot are pretrial detainees

incarcerated in County Jail 4. (Dkt. 1.) Plaintiffs Troy McAllister, Marshal Harris, and Michael 11

Brown are pretrial detainees incarcerated in County Jail 5. (Id.) Plaintiff Armando Carlos 12
(“Carlos”) is a convicted defendant who has not yet been sentenced, and he is incarcerated in 13
County Jail 5. (Id.) Montrail Brackens (“Brackens”) has been incarcerated for six and a half 14
years, spending the first year at County Jail 4 and the remainder at County Jail 5. (Dkt. 8-5 15
(Brackens Dec. ¶ 1).) Marshall Harris (“Harris”) has been incarcerated at County Jail 5 for two 16
and a half years. (Dkt. 8-6 (Harris Dec. ¶ 1).) Kenyon Norbert (“Norbert”) was an inmate at 17
County Jail 5 from July 2014 until March 2019, when he was transferred to County Jail 4, where
18 he has remained since. (Dkt. 8-8 (Norbert Dec. ¶ 1).) Jose Poot (“Poot”) has been incarcerated
19 for three years in County Jail 4, with the exception of about 8 months in County Jail 5. (Dkt. 8-9

20 (Poot Dec. ¶ 1).)

21

In support of their motion for a preliminary injunction, Plaintiffs provide the declarations

22 of James McFarland (“McFarland”) and Candido Zayas (“Zayas”) who, though not named

23 plaintiffs at this point in the litigation, provide relevant factual testimony as current inmates at

24 County Jails 4 and 5 and would potentially be members of the class at issue. (Dkt. 8-7

25 (McFarland Dec.); Dkt. 8-10 (Zayas Dec.).) Two of the named Plaintiffs, Troy McAllister

26 (“McAllister”) and Michael Brown (“Brown”), did not submit declarations in support of the

27 motion for a preliminary injunction.

28 / / / 4

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United States District Court Northern District of California

1

A. General Categories of Confinement.

2

For both County Jails 4 and 5, inmates are separated into three general groups: (1) general

3 population, (2) administrative segregation, and (3) disciplinary lockdown.3 (Dkts. 11-1, 11-2.)

4

Inmates are placed in administrative segregation only if “deemed necessary for safety and

5 security of inmates and staff.” (Dkt. 11-1 (McConnell Dec. ¶ 4).) Safety concerns may entail a

6 finding either that the inmate poses a threat to others or that the inmate is vulnerable to other
7 inmates. (Id.) For example, inmates who have dropped out of gangs are at risk from other
8 inmates and therefore are candidates for administrative segregation. (Dkt. 11-2 (Freeman Dec. ¶
9 11).) The Department of Corrections reviews administrative segregation placements every two
10 weeks and, when safe, houses inmates in administrative segregation with at least one other inmate.
(Id.) 11
Inmates are placed in “disciplinary lockdown” only for violating rules, and the time an 12
inmate can spend in disciplinary lockdown is limited to 30 days. (Dkt. 11-2 (Freeman Dec. ¶ 5).)4 13
This lack of recreation time is imposed when “an inmate violates Sheriff Department rules that are 14
rated to have restrictions imposed” and as a result “a supervisor […] recommend[s] ‘discipline.’” 15
(Dkt. 67.) While in disciplinary lockdown, an inmate is generally not able to exercise in the gym, 16
but some are allowed to do so based on the type of rule the inmate violated. (Dkt. 11-2 (Freeman 17
Dec. ¶ 5).) Inmates are usually not housed alone even in disciplinary lockdown. (Id. at ¶ 4.) 18
Inmates are placed in disciplinary lockdown only after notice and an opportunity to be heard. (Id. 19
at ¶ 13.)
20

21

3 Although the terminology regarding the jail structures differs slightly between County

22

Jails 4 and 5, the categories of confinement are consistent. The record is not completely clear because the inmates who submitted declarations for this motion use different terminology from

23

each other and from Defendants, and it is not always evident whether they are referring to administrative segregation or disciplinary lockdown. Confusing the matter further is the fact that

24

other jails or prisons appear to use the term “administrative segregation” to refer to placement in disciplinary lockdown. For clarity, the Court in this Order will refer to the three categories using

25 the terms “general population,” “administrative segregation,” and “disciplinary lockdown.”

26

4 There is a possibility, though, that an inmate might spend 30 days in disciplinary lockdown, be released into the general population, violate another rule, and then go back to

27

disciplinary lockdown. Inmates are always released after 30 days. (Dkt. 11-2 (Freeman Dec. ¶¶ 4-5).) The record is silent on the disciplinary lockdown process and whether there is any time

28

required between two consecutive placements in disciplinary lockdown. One declarant stated that he was placed in disciplinary lockdown for six months. (Dkt. 8-7 (McFarland Dec. ¶ 3).)

5

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United States District Court Northern District of California

1

The City and County of San Francisco jail system houses inmates charged with violations

2 of California state criminal laws, but it can also house inmates who are charged with federal

3 crimes in the United States District Court.5 The Federal Public Defender for the United States

4 District Court, Northern District of California, noted in an amicus curiae brief submitted

5 December 12, 2019, that most federal inmates are held in another county’s facility. (Dkt. 93.)

6

B. County Jail 4.

7

County Jail 4 is located at 850 Bryant Street in San Francisco. (Dkt. 67.) County Jail 4 is

8 organized into eleven “blocks” designated by letters A, B, C, D, E, F, G, H, J, K, and L. (Id.) As

9 discussed above, there are three types of housing within County Jail 4: “general population,”

10 “administrative segregation,” and disciplinary lockdown (also known colloquially as “supermax”).

11 (Dkt. 11-2 (Freeman Dec. ¶ 14-16).)
At maximum capacity, County Jail 4 can house 402 inmates. (Dkt. 67.) Of the total 12
number of inmates in County Jail 4 as of July 31, 2019, 93.71% were pretrial detainees. (Id.) Of 13
those inmates, 22% (77 people) had been housed for longer than one year, while 14.29% (50 14
people) had been housed for longer than two years, and 10.58% (37 people) had been housed for 15
longer than three years. (Id.) 16
Although both federal and state law provide that a criminal defendant must have a trial 17
within a certain period of time, criminal defendants can waive that right in order to prepare for 18
trial. See, e.g., Zedner v. U.S., 126 S. Ct. 1976, 1978 (2006) (citing 18 U.S.C. § 3161(c)(1)); 19
Barsamyan v. Appellate Division of Superior Court, 44 Cal. 4th 960, 965 (2008) (citing Cal. Penal
20 Code § 1382).6 In addition, there are other factors that allow a court to delay the trial beyond the
21 date mandated by statute under both federal and California law. See, e.g., 18 U.S.C. § 3161(h)
22

23

5 The U.S. Marshal “assumes custody of all prisoners charged with a federal offense, no

24

matter which agency made the arrest.” https://www.usmarshals.gov/prisoner/. The U.S. Marshal has contracted with the City and County of San Francisco “to house Federal detainees with the

25

Local Government at the SAN FRANCISCO CITY and COUNTY JAIL 850 Bryant Street [sic], San Francisco[.]”

26

https://www.usmarshals.gov/foia/IGAs_Cap_Agreements/california/sf_city_county_jail.pdf (capitalization in original).

27

6 It is not clear why Plaintiffs here have been incarcerated as pretrial detainees for such long periods of time. However, Norbert explains that he is “fighting” the criminal charges against

28

him because he is “factually innocent.” (Dkt. 8-8 (Norbert Dec. ¶ 1).) This indicates that his criminal process is lengthier because he is strenuously contesting the charges against him.

6

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United States District Court Northern District of California

1 (trial court may delay trial if trial is complex, novel issues raised, multiple defendants involved, or

2 additional time necessary for defense counsel to prepare effectively); 18 U.S.C. § 3161(h) (trial

3 court can consider same factors as in federal statute). It may be difficult for a person not familiar

4 with the criminal legal system to understand how long a case may take before brought to trial.

5 Jails were initially created to house pretrial detainees on a short-term basis. But because of the

6 increasing complexity of criminal trials, the time between arrest and trial can be years. For

7 example, a local news report dated February 12, 2018, calculated, based on statistics from the

8 State of California, that only 68% of criminal cases are resolved within one year.7

9

Sheriff Vicki Hennessy (“Hennessy”) has publicly described conditions in County Jail 4 as

10 “an embarrassment to the city” and “decrepit.” (Dkt. 8-11 (Huang Dec. Ex. E).)

The inmates in County Jail 4 are grouped in cells of 1, 2, 4, 6, or 12 people, depending on 11
the inmate’s classification and history. (Dkt. 11-2 (Freeman Dec. ¶¶ 14-16).) A and D blocks 12
have louvered windows that, when open, allow in both fresh air and direct sunlight; inmates can 13
see outside. (Dkt. 11-2 (Freeman Dec. ¶ 17.) The other blocks do not have windows. 14
County Jail 4 contains a single designated exercise area, the “gym,” which was added in 15
1985. (Dkts. 11, 67.) The gym consists of a single room slightly larger than a regulation 16
basketball court. (Id.) Rather than windows, the gym has four long rectangular openings that are 17
covered by grates, through which fresh air is allowed to enter the room. (Id.) The Court observed
18 during the site visit and confirmed with the photographs taken during the site visit that the gym
19 ceiling contains six large square skylights, which have grates over them that allow in some direct

20 sunlight and fresh air. Attached to the gym is a small multipurpose room with either a frosted

21 piece of glass or clear glass to allow in light. (Dkts. 67, 11-2 (Freeman Dec. ¶ 18).)

22

“A Block” is divided into six subsections, labeled A1-A6. (Dkts. 11, 67.) Inmates housed

23 in A1 and A4 receive one and a half hours of recreation time two days a week. (Dkt. 67.) During

24 their recreation time, A Block inmates may be in the gym with other inmates, between 15 and 20

25 total at any one time. (Id.) However, inmates housed in A2, A3, A5, and A6 are designated as

26 “restricted housing” or “disciplinary lockdown” inmates and receive zero hours of recreation per

27

28

7 https://www.nbcbayarea.com/news/local/budget-cuts-to-courts-now-affecting-criminalcases-creating-backlogs-similar-to-civil-case-calendars/198847/.

7

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1 week. (Dkts. 67, 11-2 (Freeman Dec. ¶ 4).) There is no side room or day room for A Block.

2 (Dkt. 109.)

3

“B Block” and “C Block” are cell blocks in the general population. (Dkt. 67.) Inmates in

4 B and C Blocks receive one and a half hours of recreation time two days a week.8 (Id.) During

5 their recreation time, B and C Block inmates may be in the gym with other inmates, up to 20 total

6 at any one time. (Id.) Inmates in B and C Blocks have sleeping areas into which they are locked

7 at night but also have a very small “side room” where they can sit during the day. (Dkt. 109.) The

8 side room is open for more than 12 hours a day, so that inmates can move between the sleeping

9 area and side room during that time, but at night they are locked into the sleeping areas. (Id.) The

10 side rooms have a metal bench, a metal table, phones, a television, a sink, a shower, and a toilet.

(Id.) 11
“D Block” is a block exclusively for inmates in administrative segregation. (Dkt. 67.) 12
Inmates in D Block receive one and a half hours of recreation time two days a week. (Id.) During 13
their recreation time, D Block inmates may be in the gym with other inmates, between 2 and 8 14
total at any one time, depending on concerns about security. (Id.) There is no side room or day 15
room for D Block. (Dkt. 109.) 16
“E Block” and “F Block” each contain a limited number of inmates. (Dkt. 67.) Inmates in 17
E and F Blocks receive one and a half hours of recreation time two days a week. (Id.) During 18
their recreation time, E and F Block inmates may be in the gym with other inmates, up to two total
19 at any one time. (Id.) There is no side room or day room for either E Block or F Block. (Dkt.
20 109.)

21

Though slightly larger than E and F Blocks, “G Block” and “H Block” also contain a small

22 number of inmates. (Dkt. 67.) Inmates in G and H Blocks receive one and a half hours of

23 recreation time two days a week. (Id.) During their recreation time, G and H Block inmates may

24 be in the gym with other inmates, up to 12 total at any one time. (Id.) Inmates in G and H Blocks

25

26

8 Some inmates submitted declarations that they were given only one three-hour block of

time for the gym in one week, rather than two visits of one and a half hours each. (Dkt. 8-5 27 (Brackens Dec. ¶ 3); Dkt. 8-8 (Norbert Dec. ¶¶ 12-13); Dkt. 8-9 (Poot Dec. ¶ 7).) Until

28

approximately mid-June 2019, inmates were given one three-hour block per week, but now they have two blocks of 1 ½ hours each per week. (Dkt. 11-2 (Freeman Dec. ¶ 20).)

8

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1 have sleeping areas into which they are locked at night but also have a very small “side room”

2 where they can sit during the day. (Dkt. 109.) The side room is open for more than 12 hours a

3 day, so that inmates can move between the sleeping area and side room during that time, but at

4 night they are locked into the sleeping areas. (Id.) The side rooms have a metal bench, a metal

5 table, phones, a television, a sink, a shower, and a toilet. (Id.)

6

Inmates in Block G also assist in chores within the jail and thus are out of cell an

7 additional four to six hours per shift, but it is not clear how many days per week this occurs. (Dkt.

8 109.)

9

“J Block” has recently been designated specifically for inmates in the “Roads to Recovery”

10 program. (Dkt. 67.) Inmates in J Block receive one and a half hours of recreation time two days a
week. (Id.) During their recreation time, J Block inmates may be in the gym with other inmates, 11
between 15 and 20 total at any one time. (Id.) Inmates in J Block have access to a day room that 12
they can access at least nine hours and forty-five minutes a day, and they are allowed out of their 13
sleeping areas 12 hours a day. (Dkt. 109.) The Court observed and confirmed with photographs 14
that this day room is larger than the side rooms described above, and the day room also has 15
louvered windows with direct sunlight. 16
“K Block” is a block exclusively for inmates in administrative segregation. (Dkt. 11-2 17
(Freeman Dec. ¶ 15).).) Inmates in K Block receive one and a half hours of recreation time two 18
days a week. (Dkt. 67.) During their recreation time, K Block inmates may be in the gym with
19 other inmates, between two and six total at any one time, depending on security concerns. (Id.)
20 There is no side room or day room for K Block. (Dkt. 109.)
21 “L Block” is a block for inmates in administrative segregation, “restricted housing,”

22 “inmate workers,” “special needs housing” or temporary housing. (Dkt. 109.) Inmates in L Block

23 receive one and a half hours of recreation time two days a week. (Dkt. 67.) L Block does not

24 have a side room or day room. (Dkt. 109.) Inmates in Block L also assist in chores within the jail

25 and thus are out of cell an additional four to six hours per shift, but it is not clear how many days

26 per week this occurs. (Dkt. 109.)

27

The Court observed during the site visit, as confirmed by photographs taken during the site

28

9

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1 visit, that there are windows at the ends of the hallways in County Jail 4 from which light can

2 enter. The Court observed during the site visit that the cells and the day rooms are too small to 3 allow inmates to exercise in a meaningful way in the cells.

4

C. County Jail 5.

5

County Jail 5 is located in San Bruno and can hold a maximum of 772 inmates. (Dkt. 67.)

6 Within County Jail 5, there are three types of housing: “general population,” “administrative
7 segregation,” and “restricted housing.”9 (Dkt. 67; Dkt. 11-1 (McConnell Dec. ¶¶ 4, 8).) Of the
8 total housing capacity at County Jail 5, general population units can house 528 inmates;
9 administrative segregation units can house 96 inmates; and disciplinary lockdown units can house
10 24 inmates. (Dkt. 67.) There are also several smaller housing units for inmates with psychiatric
11 needs, medical needs, and security needs (for gang dropouts). (Dkt. 11-1 (McConnell Dec. ¶¶ 4,
8).) Two housing units in County Jail 5 are designated for a charter high school program. (Id.) 12
Housing units at County Jail 5 are referred to as “pods.” (Id.) Each pod at County Jail 5 is 13
identical and houses 48 inmates. (Id.) During their “free time” each general population “pod” has 14
access to a common area or “day room” that contains phones, a shower, television, tables, and 15
stools. (Dkt. 11-2 (Freeman Dec. ¶ 6).) The doors to the cells have clear plastic that allows 16
inmates to see into the common areas. (Id.) Inmates may access the common areas for four and a 17
half hours each weekday and 8 hours each weekend day. (Id.) 18
Inmates in administrative segregation in County Jail 5 are allowed to use the gym. One 19
source says that they can use the gym for three hours a week on multiple days, but another says at 20
least 30 minutes a day, seven days a week. (Dkt. 11-1 (McConnell Dec., ¶ 5); Dkt. 11-2 (Freeman 21
Dec. ¶ 12).) Although the underlying evidence is slightly confusing, Defendants claim in their 22
briefing that inmates in administrative segregation receive 30 minutes of exercise, seven days a 23
week, and in addition receive 30 minutes of time in the day room, seven days a week. (Dkt. 81 at 24
page 4.) 25
The backs of the cells have windows that look out to the exterior wall of a building and 26

27

28

9 For consistency, the Court will refer to “restricted housing” area as “disciplinary lockdown” for both County Jails 4 and 5.

10

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1 which allow in “borrowed” or ambient light into each cell. (Dkt. 11-2 (Freeman Dec. ¶ 7).) The

2 common room opens into a gym, which is approximately the size of half of a basketball court. (Id.

3 ¶¶ 6-8.) The gyms are irregularly shaped but about half the size of a regulation basketball court.

4 (Dkt. 11 at page 7.) Two large grates in the ceiling of each gym allow air from outside to enter the

5 building and allow some light, but there are no windows or glass in the gym. (Dkt. 11-2 (Freeman

6 Dec. ¶¶ 6-8.)

7

The number of inmates in the gym at any one time may vary. (Dkt. 67.) Inmates being

8 housed in administrative segregation pods are allowed out of their cells 30 minutes of exercise 7

9 days a week. (Dkt. 11-1 (McConnell Dec. ¶ 5).) They may be allowed out for a longer period of
10 time, but there is no evidence on how long that is or how frequently that happens. (Id.) Typically,
two inmates are released for their exercise time together; however, if the jail staff deems it safe for 11
multiple inmates to occupy the gym simultaneously, the number of inmates in the gym may 12
increase in groups of two. (Dkt. 67.) For each two inmates added to the total, the exercise time is 13
increased by 30 minutes; e.g., four inmates in the gym together would get one hour of time, six 14
would get one and a half hours, etc. (Id.) 15
Inmates in disciplinary lockdown generally do not receive any recreation time, but some 16
do, depending on the violation of the rules that resulted in the lockdown placement. (Dkt. 11-2 17
(Freeman Dec. ¶ 4).). However, there is no evidence about the amount of time or frequency with 18
which these inmates are allowed recreation. 19
Of the total number of inmates in County Jail 5 as of July 31, 2019, 92.85% were pretrial
20 detainees. (Dkt. 67.) Of those inmates, 35.05% (191 people) had been housed for longer than one
21 year, while 20.37% (111 people) had been housed for longer than two years. (Id.) 11.20% (61
22 people) had been housed for longer than three years, and 6.06% (33 people) had been housed for

23 longer than four years. (Id.)

24

County Jail 5 previously had an outdoor exercise yard that has not been used for 13 years.

25 (Dkt. 11-2 (Freeman Dec. ¶ 24).) Currently, the exercise yard is an open field.10 The yard is

26 currently not secure. Because there is no secure pathway between the jail and the exercise yard,

27

28

10 The Court observed this yard during the site visit.

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1 Defendants state that transferring inmates to the yard would not be safe unless there were

2 “extraordinary time-consuming and costly measures” put in place, but there is no estimate of that

3 time or expense in the record. (Dkt. 11-2 (Freeman Dec. ¶ 24).) In addition, the fences around the

4 yard are crumbling and leaning. (Dkt. 11-1 (McConnell Dec. ¶11).)

5

The Court observed during the site visit that the cells are too small to allow inmates to

6 exercise in a meaningful way.

7

D. Solitary Confinement.

8

Inmates in County Jails 4 and 5 are rarely housed alone. (Dkt. 11-2 (Freeman Dec. ¶ 4).)

9 Plaintiffs submit a declaration of Terry Kupers, M.D., M.S.P., who defines “solitary confinement”

10 as “more than 22 hours per day of cell confinement” with “very limited opportunity for contact

11 with others beside a cellmate and officers[.]” (Dkt. 8-2 (Kupers Dec. at page 3).) Kupers, a

board-certified psychiatrist with many years of experience advising and testifying about 12
correctional institutions, opines that the type of confinement that Norbert has experienced leads to 13
serious psychological problems. (Id.) There is no evidence that Kupers has examined Norbert or 14
seen County Jails 4 and 5. 15
E. No Outdoor Recreation or Exercise Areas for Either County Jail 4 or 5. 16
There are no outdoor recreational facilities in either County Jail 4 or County Jail 5. (Dkt. 17
67.) Inmates at County Jails 4 and 5 have no access to direct sunlight or outdoor recreation during 18
their time incarcerated at those facilities. Plaintiffs and the other witnesses describe their access to 19
direct sunlight in stark terms: 20
(1) “In the eight (8) years I have been incarcerated, I have never been in sunlight.”
21 (Dkt. 8-4 (Carlos Dec. ¶ 1));
22 (2) “In the entire time I have been in jail, I have never been given outdoor recreation.

23

In the 6 ½ years I have been a pretrial detainee in San Francisco county jails, I have

24

never had the sunshine on my skin. Every single prisoner suffers from complete

25

denial of outdoor recreation.” (Dkt. 8-5 (Brackens Dec. ¶ 2));

26

(3) “No prisoner has access to sunlight or sunshine. […] In the five (5) years I have

27

been incarcerated, I have never been in sunlight.” (Dkt. 8-8 (Norbert Dec. ¶ 2));

28

(4) “In the 4 ½ years I have been a pretrial detainee in San Francisco county jails, I

12

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1

have never had the sunshine on my skin.” (Dkt. 8-7 (McFarland Dec. ¶ 2 ));

2

(5) “My understanding of the conditions inside San Francisco County Jail is based

3

upon the almost three (3) years that I have been incarcerated in a San Francisco

4

County jail […] I have never been in the sunshine since being incarcerated.” (Dkt.

5

8-9 (Poot Dec. ¶ 2));

6

(6) In the 2 ½ years I have been a pretrial detainee in San Francisco county jails, I have

7

never had the sunshine on my skin.” (Dkt. 8-6 (Harris Dec. ¶ 2));

8

(7) “In the 2 years I have been a pretrial detainee in San Francisco county jails, I have

9

never had the sunshine on my skin. […] It has been very hard for me to be indoors

10

this entire time. The only time I am outdoors is the 2 seconds stepping off the bus,

when I have court, before I walk into the Hall of Justice. I always try to take a 11
moment and look up and see the sky. And then, boom, I’m back in. It always feels 12
very terrible, and I get sad and depressed.” (Dkt. 8-10 (Zayas Dec. ¶ 2)). 13
F. Plaintiffs’ Housing History. 14
Each of the named Plaintiffs and inmates who submitted declarations in support of the 15
preliminary injunction has a unique history of confinement within the San Francisco County Jails. 16
Brackens was placed in administrative segregation in D Block of County Jail 4 from the 17
time of his arrest in 2012 until the end of 2013. (Dkt. 11-2 (Freeman Dec. ¶ 27).) For three 18
months of this time, Brackens was held in disciplinary lockdown. (Id.) At the end of 2013, 19
Brackens was moved to County Jail 5, where he was again placed in administrative segregation.
20 (Id. ¶¶ 27-28).) From mid-2016 to March 2018, Brackens was placed in the psychiatric sheltered
21 housing pod at County Jail 5. (Id. at ¶ 28.) In March 2018, Brackens was again returned to

22 County Jail 4, where he was placed in administrative segregation and where he remains. (Id.)

23 Brackens states that he was housed in “K block” of County Jail 4 for one year and that, although

24 he asked to be housed “mainline,” his requests were denied and that he was told that he was placed

25 in “segregation” because he had a “high profile case.” (Dkt. 8-5 (Brackens Dec. ¶ 3).) Brackens

26 was transferred to County Jail 5 and was “still housed in lock down.” (Id. ¶ 4.) Brackens states

27 that he was never given a reason for that assignment. (Id.) Brackens also had only 30 minutes out

28 of cell per day and had to split that time between using the phone or exercising in the gym. (Id. at 13

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1 ¶ 7.) Brackens was then transferred to County Jail 4, where he was placed into the “general

2 population” where 12 people were “crammed into a small cell.” (Id. ¶ 9.) He was not used to
3 being with that many people and “refused the housing.” (Id.) That led to placement in the “hole,”
4 where he was locked up 24 hours a day and let out only to shower. (Id.) He was placed there for
5 30 days, still refused his housing assignment, and was then placed into “segregation.” (Id.)
6 Brackens is currently in administrative segregation and has never had a hearing. (Dkt. 79-1
7 (Supplemental Brackens Dec. ¶ 1).) He has been told that he is in administrative segregation
8 because he has a high-profile case. (Dkt. 8-5 (Brackens Dec. ¶ 3).) Brackens has never had a real 9 review for his placement in administrative segregation. (Dkt. 8-5 (Brackens Dec. ¶4); Dkt. 79-1 10 (Supplemental Brackens Dec. ¶ 2).) He would like to be placed back in the general population and
receive mental health support to make the transition back into the general population. (Dkt. 79-1 11
(Supplemental Brackens Dec. ¶ 2).) 12
Norbert has been incarcerated continuously since July of 2014. (Dkt. 11-2 (Freeman Dec. 13
¶ 32).) Norbert was primarily held in administrative segregation pods at County Jail 5; however, 14
since April 2019 he has been held in administrative segregation at County Jail 4. (Id.) He has 15
never had a hearing and requests mental health treatment if he returns to the general population, 16
where he would like to return. (Dkt. 79-3 (Supplemental Norbert Dec. ¶¶ 2-3).) For most of the 17
five years that Norbert has been incarcerated, he has been in a cell, either alone or with one 18
cellmate. (Dkt. 8-8 (Norbert Dec. ¶ 7).) During those times, he was allowed out of cell only 30 19
minutes a day, and that time was a combination of gym time or phone time. (Id.) He was required 20
to use the phone in his cell, and he was allowed to go to the gym only if his cellmate went with 21 him. (Id.) Because calling their lawyers was so important to both Norbert and his cellmate, they 22 used their time for the phone and thus lost their time out of cell “most days.” (Id.) Because
23 handcuffing and walking to the gym were part of the 30 minutes out of cell, the actual time in the
24 gym was less than 30 minutes.11 (Id. at ¶ 8.) Norbert is now housed at County Jail 4, where he
25 was transferred at his request, and he now has one cellmate and the ability to go to the gym for
26

27

11 McConnell reports that the system has been changed so that the gym time and phone

28

time are now separate and that Brackens has separate time to use the phone because he is representing himself in his criminal case. (Dkt. 11-1 (McConnell Dec. ¶ 8).)

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1 three hours a week. (Id. at ¶¶ 11-13.) Sometimes the time for gym is so early (7:00 a.m. after a

2 5:00 a.m. breakfast), that Norbert has fallen asleep and misses time at the gym. (Id. at ¶ 13.)

3 Norbert is housed with Brackens in a cell that measures 7 feet by 12 feet. (Dkt. 79-3

4 (Supplemental Norbert Dec. ¶ 1).)

5

Carlos has been housed in County Jail 5 since 2011, mainly in the general population.

6 (Dkt. 11-2 (Freeman Dec. ¶ 29).) In August 2018, Carlos was placed in administrative

7 segregation, where he remains. (Id.) Carlos states that he was placed into “segregation” before

8 his jury trial, but he does not know why he was placed there. (Dkt. 8-4 (Carlos Dec. ¶ 7).) He

9 states that no one explained to him why he was placed into segregation. (Id.) He states: “because

10 I was in trial, the restrictions of segregation did not bother me because I was not at the jail.” (Id.)
After his trial ended, he was placed into a housing unit where he was “locked down” almost 24 11
hours a day. (Id. at ¶ 8.) During that period of time, he was allowed out of his cell only 30 12
minutes per day and had to choose to phone or the gym. (Id.) Because of the time spent walking 13
and handcuffing during the walk, the amount of time in the gym is less than 30 minutes. (Id.) 14
Before, when Carlos was in the general population, he received access to classes and programs, 15
but now he does not. (Dkt. 79-2 (Supplemental Carlos Dec. ¶ 2).) In administrative segregation, 16
Carlos is in a cell 23 ½ hours a day. (Id.) His cell measures 6 feet by 12 feet. (Id.) 17
Harris has been housed in the general population at County Jail 5 since August 2017. 18
(Dkt. 11-2 (Freeman Dec. ¶ 30).)
19 Poot was held in County Jail 5 from June 2016 to January 2018, when he was moved to
20 County Jail 4. (Dkt. 11-2 (Freeman Dec. ¶ 33).) Poot was completely denied recreation during a
21 period of disciplinary lockdown from May 2019 to June 2019. (Id.)

22

Non-plaintiff Zayas has been incarcerated at County Jail 5 for two years. (Dkt. 11-2

23 (Freeman Dec. ¶ 34).) It is not clear from the current record whether Poot and Zayas have been

24 primarily housed in general population, administrative segregation, or disciplinary lockdown.

25

Non-plaintiff McFarland has been incarcerated at various points since 2009, but has

26 remained continuously incarcerated at County Jail 5 since October of 2014. (Dkt. 11-2 (Freeman

27 Dec. ¶ 31).) During that time, McFarland has been housed in either administrative segregation or

28 disciplinary lockdown. (Id.) McFarland states that he has been placed in “various forms of 15

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1 segregation,” either administrative segregation or disciplinary lockdown, for 18 months, including

2 six months in the “hole.” (Dkt. 8-7 (McFarland Dec. ¶ 3).) McFarland says that he was placed in

3 the “hole,” where he was locked up for 24 hours with no cellmate, for violating rules. (Id.) One

4 time the rule he violated was “possessing a blue ball point pen.” (Id.) During the 12 months that

5 McFarland was in “segregation” outside the “hole,” he had a cellmate but was only allowed out of

6 cell to use the phone or exercise for ½ hour a day. (Id. at ¶ 5.)

7

Non-plaintiff Kishawn Norbert (“Kishawn Norbert”), brother of named Plaintiff Kenyon

8 Norbert, submitted a declaration with the Supplemental Points and Authorities. (Dkt. 79-4

9 (Kishawn Norbert Dec. ¶ 2).) He is currently being held in administrative segregation and alleges

10 that his placement review consists only of a deputy sheriff who tells him every two weeks that he

11 is “never getting out” of administrative segregation. (Id. at ¶ 3.)

12

Non-plaintiff Roger Dominguez (“Dominguez”) also submitted his declaration with the

13 Supplemental Points and Authorities. (Dkt. 79-5 (Dominguez Dec. ¶¶ 2-6).) He was attacked in

14 the general population and then sent to administrative segregation, but his attackers remain in the

15 general population. (Id.)

16

McAllister is a named Plaintiff and a pretrial detainee incarcerated in County Jail 5, and he

17 has been incarcerated since July 29, 2014. (Dkt. 1 (Complaint ¶ 57).)

18

Brown is a named Plaintiff and a pretrial detainee incarcerated in County Jail 5. (Dkt. 1

19 (Complaint ¶ 63).) He has been incarcerated for almost one year as of the time the Complaint was

20 filed. (Id.)

21

G. Plaintiffs’ Self-Reported Medical History.

22

The named Plaintiffs and inmates who submitted declarations in support of the preliminary

23 injunction allege physical and emotional ailments as a result of their conditions of confinement.

24 Generally, Plaintiffs allege that their lack of access to outdoor exercise and sunshine results in

25 “cardiovascular disease, hypertension, negative impacts on blood sugar including adult onset

26 diabetes and lowered insulin sensitivity, headaches, migraines, anxiety and depression, weight

27 increase and obesity” as well as “a variety of health issues resulting from Vitamin D deficiency,

28 including soft bones, muscle weakness, bone pain, cardiovascular disease and cognitive

16

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1 impairment.” (Dkt. 1 (Complaint ¶¶ 52-53).) In particular, McFarland alleges that he suffers from

2 daily migraine headaches and high blood pressure, which he never had before being incarcerated.

3 (Dkt. 8-7 (McFarland Dec. ¶ 5).) Norbert alleges that he suffers severe headaches, exhaustion,

4 insomnia, back and hip pain, weight gain, poor eyesight, poor circulation, brittle hair, and edema

5 on his feet as a result of his conditions of confinement. (Dkt. 8-7 (Norbert Dec. ¶¶ 11, 18).) In his

6 supplemental declaration, he states that he is now been diagnosed as pre-diabetic. (Dkt. 79-3

7 (Supplemental Norbert Dec. ¶ 2).) Poot alleges that he is tired, depressed, and irritable, and

8 regularly has severe headaches. (Dkt. 8-9 (Poot Dec. ¶ 10).) Several Plaintiffs report a change in

9 their complexions based on lack of sun exposure. (Dkt. 8-7 (Norbert Dec. ¶ 2), Dkt. 8-4 (Carlos

10 Dec. ¶ 2), Dkt. 8-9 (Poot Dec. ¶ 3), Dkt. 8-5 (Brackens Dec. ¶ 2).) Brackens alleges that he suffers

11 from lethargy, anxiety, and a weakened immune system. (Dkt. 8-5 (Brackens Dec. ¶ 13).)

12 Brackens, in his supplemental declaration, states that he now has been diagnosed with diabetes.

13 (Dkt. 79-1 (Supplemental Brackens Dec. ¶ 1).) Harris reports that he suffers from depression and

14 worsening eyesight. (Dkt. 8-6 (Harris Dec. ¶ 8).)

15

McAllister and Brown described their conditions in the Complaint only because they did

16 not submit declarations. McAllister is concerned about his health and is in “despair.” (Dkt. 1 ¶

17 58.) Brown has experienced “significant body pain, including backpain in his kidney region,

18 depression, anxiety and agitation.” (Dkt. 1 ¶ 63.)

19

There is no evidence from other sources regarding the Plaintiffs’ medical conditions or

20 cause of their ailments.

21

H. Scientific Evidence regarding Harms from Lack of Access to Light.

22

Jamie M. Zeitzer, Ph.D. (“Zeitzer”) is an Associate Professor and Health Science Specialist

23 in Psychiatry and Behavioral Sciences at Stanford University. (Dkt. 8-3 (Zeitzer Curriculum

24 Vitae).) Zeitzer submitted an expert report in support of Plaintiffs’ motion for a preliminary

25 injunction. (Dkt. 8-3 (Zeitzer Dec. Ex. A).) Zeitzer is recognized worldwide as an expert in sleep 26 and Circadian rhythms and has published over 100 articles and lectured internationally on those 27 topics. (Id.) Zeitzer also testified before the Court at the evidentiary hearing held on October 23, 28 2019. In his written testimony, Zeitzer explained that “[t]he Circadian clock, which is located in

17

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1 the brain, is responsible for the temporal organization (timing) or a variety of biological activities,

2 including sleep, mood, metabolism, immune function, and cognition.” (Id.) “A properly timed

3 and functioning Circadian clock is dependent on exposure to regular light-dark cycle.” (Id.)

4 Individuals with disrupted Circadian rhythms can eventually develop pathologies, including

5 insomnia, depression, diabetes, cancer, and cognitive impairment. (Id.) “Exposure to sunlight is

6 an important component in the setting and regulation of the human Circadian rhythm.” (Id.) This

7 is true because “[t]he more robust the difference between the brightness of light during the day and

8 night, the stronger the signal to the Circadian clock.” (Id.)

9

Zeitzer explained during the evidentiary hearing that it is possible to measure ambient light

10 levels using a light detector unit (“LDU”) calibrated by the National Institute of Standards and

Technology. (Dkt. 75 (Zeitzer Hearing FTR at 9:41).) Prior to the jail site visits, Zeitzer met with 11
a paralegal from Plaintiffs’ counsel’s office, gave her the LDU, and explained to her how to 12
capture accurate ambient light readings, including the normal exposure to light a person would get 13
in any given room, as well as the uppermost and the lowermost readings. (Id. at 9:42, 9:44-47).) 14
Zeitzer explained that the LDU takes in light readings and normalizes them to a unit of measure 15
referred to as “lux,” which corresponds to the amount of light taken in by the human eye and 16
consciously seen by the human brain. (Dkt. 75 (Zeitzer Hearing FTR at 9:42; Zeitzer Hearing 17
Transcript at 12:3-9).) Zeitzer clarified that the further a person is from a light source, the lower 18
the intensity of the light the person receives, with the normal calculation being 1 divided by the
19 square root of the distance from the light. (Dkt. 75 (Zeitzer Hearing FTR at 9:43).)
20 According to Zeitzer, “anything under 10 lux” represents “very dim lighting.” (Dkt. 75

21 (Zeitzer Hearing Transcript at 12:11).) In the United States, indoor lighting in a typical home

22 varies between 100 lux during the day and 50 lux in the evening. (Id. at 12:11-14.) In contrast, “a

23 well-lit office” might be 200 to 300 lux, and the light outside on a nice day would be anywhere

24 from 10,000 to 100,000 lux. (Id. at 12:15-17.) Zeitzer testified that the type of light received

25 inside “doesn’t completely recapitulate what you would get outside” for health purposes, due to

26 color spectrum differences in the composition of the types of light and how those types of light are

27 variously perceived by the light-responsive cells in the human eye and brain. (Id. at 16:2-17:6.)

28 Zeitzer explained that generally, the source or type of light (sunlight vs. artificial light) did not 18

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1 make a difference unless there was a complete absence of “blue light.” (Id. at 50:15-20.) Sunlight

2 filtered through windows supplies sufficient light unless the window is a special type that blocks

3 certain types of light. (Id. at 65:2-19.) A person can receive the proper differential between light

4 during the day and light during the night from access to natural light from a window instead of

5 being outside. (Id. at 30:15-17.) And that differential can also be established from artificial light

6 as opposed to natural light. (Id. at 30:18-20.) Zeitzer does not know what type of windows are in

7 County Jails 4 and 5. (Id. at 65:6-66:12.)

8

At the evidentiary hearing, Zeitzer elaborated on the meaning of lux readings. He

9 explained that “the critical part about lighting is that we create a difference between the daytime

10 lighting and the nighttime lighting.” (Id. at 21:5-7.) Health benefits of appropriate lighting are
based not only on “the absolute amount of light that one is getting” but on the difference between 11
the light during the day and the light at night. (Id. at 21:7-9.) As Zeitzer explained: “[I]f you 12
don’t have this difference between day and night, then you have a lot of negative health 13
consequences.” (Id. at 21:10-11.) Thus, if a person “were to sleep in absolute hundred percent 14
darkness,” dimmer lighting during the daytime would be adequate. (Id. at 22:20-24.) Circadian 15
rhythm problems due to inadequate light will be “completely obviated” if a person gets sufficient 16
exposure to daylight; Zeitzer notes that “the typical clinical recommendation is 30 minutes […] of 17
natural lighting exposure.” (Id. at 23:5, 12-15.) 18
Zeitzer further hypothesized that some exposure to high intensity sunlight one to two times
19 a week might also be sufficient to ameliorate Circadian problems in people who generally are
20 exposed to poor lighting conditions. (Id. at 28:10-19.) However, Zeitzer also pointed out the
21 difficulty in conducting direct studies of sunlight deprivation, as depriving people of sunlight over

22 the long term would pose ethical problems, “given what we know about the risk of extended light

23 deprivation or extended exposure to minimal light.” (Id. at 24:8-25.) “As the length of time of

24 exposure to only artificial indoor lighting is extended, the likelihood of disruption to sleep and

25 Circadian rhythms increases, as do the downstream consequences on heart, metabolic, immune,

26 and mental health.” (Dkt. 8-3 (Zeitzer Dec. at 5).)

27

Zeitzer concluded that the conditions in County Jails 4 and 5, including “total lack of

28 natural sunlight, limited night time [sic] sleep period, and continuous night time illumination will 19

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1 be associated with a variety of both short- and long-term impairments” for inmates. (Id. at 6.)

2 However, Zeitzer is not a medical doctor and has not examined or treated any of the inmates in

3 County Jails 4 or 5. (Dkt. 75 (Zeitzer Hearing Transcript at 41:10-18, 42:10-14, 44:13-24).)

4

Neither the Court nor Zeitzer had access to data regarding the lux levels in either County

5 Jail 4 or County Jail 5 at night. Even when a person’s eyes are closed, around 10 percent of the

6 light in a space still enters the eye; thus, the appropriate reading for light entering a closed eye

7 would be the lux reading minus 90 percent. (Id. at 39:23-40:14.) Zeitzer explained at the

8 evidentiary hearing that methods exist for gathering more fulsome data regarding lux, including

9 installing LDUs programmed to take periodic light readings over a 24-hour period. (Id. at 32:9-

10 33:4).)
In summary, the total amount of light a person receives is not the important factor for 11
health; instead, the difference between light at night and light during the day is significant for 12
health. In general, the type of light – whether sunlight or artificial light – is not significant. 13
However, exposure to a smaller amount of sunlight each week suffices to reset the Circadian clock 14
because sunlight is usually very bright. Zeitzer’s opinions about the conditions of the inmates in 15
County Jails 4 and 5 are based on general knowledge and not on any specific medical data for the 16
individual inmates, and Zeitzer, who is not a medical doctor, has not treated or examined any of 17
the inmates. 18

19

I. Light Measurements During Site Visit and Lighting at Night in County Jails 4 and 5.

20

During the site visits, Plaintiffs’ counsel, assisted by Schwartz and a photographer, used

21 the LDU to take light readings at various locations throughout each jail. The LDU readings were

22 recorded using still photographs; for ease of reference, Plaintiffs’ counsel produced a chart

23 cataloging all of the readings, which she introduced at the evidentiary hearing, and which was

24 marked as “Exhibit 1.” (Dkt. 75 (Zeitzer Hearing Transcript at 10:21-11:15); Dkt. 81-3.)

25 Defendants did not object to Exhibit 1 at the hearing, and the Court provided further opportunity

26 for Defendants to review the chart and file any objections after the hearing, which they did not.

27 (Id. at 11:10-15, 70:19-71:14.) The lux readings inside County Jail 4 varied, from a minimum of

28 negative 56 lux to a maximum of 10,320 lux facing upward toward the light in the gym. (Dkt. 81-

20

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1 3.) The lux readings inside County Jail 5 varied, from a minimum of negative 4.2 lux to a

2 maximum of 2,039 lux facing upward toward the artificial light in the center of a cell. (Dkt. 81-3.)

3 Readings taken outside in the parking lot of County Jail 5 on the same day, at roughly the same

4 time as the site visits registered a maximum reading of 28,000 lux facing upward toward the sky.

5 (Dkt. 81-3.)

6

During the site visit, the sunlight in the gym in County Jail 4 appeared to be brighter and

7 more direct than the sunlight in the gym in County Jail 5. The light readings support this general

8 impression, as the lumen readings for the gym in County Jail 4 were .44 klux, .28 klux, .023 klux,

9 10.32 klux (under sunlight), 6.29 klux (under sunlight), and 1.257 klux (under sunlight). (Dkt. 81-

10 3.) In contrast, the light readings for the gym in County Jail 5 were .24 klux, .02 klux, and .038

11 klux. (Id.) These readings are much lower than the readings from the outdoor parking lot of

12 County Jail 5, which were 0.28 Mlux, 0.47 Mlux, and .042 Mlux. (Id.)

13

For comparison, Zeitzer provided some hypothetical lux readings as examples. Ten lux is

14 very dim lighting. (Dkt. 75 (Zeitzer Hearing Transcript at 12:10-11).) Typical indoor lighting in a

15 home in the United States is 50 lux in the evening and slightly under 100 lux during the day. (Id.

16 at 12:11-14.) A well-lit office is 200-300 lux. (Id. at 12:15.) Light outside in California is

17 between 10,000 lux to 100,000 lux. (Id. at 12:15-17.)

18

As McConnell explained during the Court’s site visit, some form of light is always on in

19 both County Jails 4 and 5, including during nighttime hours. The amount of light is reduced at

20 night, but the Court does not have access to data or other factual information regarding the amount

21 or nature of that light, and the readings taken during the visits were only obtained during the day.

22

Plaintiffs also allege that the lights are on continuously inside the jails. Carlos, housed in

County Jail 4, states that there is a fluorescent ceiling light that is very bright and that is on all 23

night. (Dkt. 8-4 (Carlos Dec. ¶ 4); Dkt. 79-2 (Supplemental Carlos Dec. ¶ 3).) Norbert reports the 24

same and that the light in the hall, which is on all night, enters the cell at night. (Dkt. 8-8 (Norbert 25

Dec. ¶ 4); Dkt. 79-3 (Supplemental Norbert Dec. ¶ 1).) Defendants provided no information about 26
light at night and did not deny that lights are on at all times. 27
/ / / 28

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1

III. PRELIMINARY INJUNCTION ANALYSIS.

2

In a sprawling complaint and motion for preliminary injunction, Plaintiffs seek sweeping

3 relief. The focus of Plaintiffs’ claims has shifted as the evidence became clearer in this case. The

4 Court has attempted to review and analyze all arguments Plaintiffs make, even if they do not

5 articulate the correct theory or cite appropriate case law because of the importance of the issues at

6 stake.

7

A plaintiff seeking a preliminary injunction must demonstrate: “(1) likely success on the

8 merits; (2) likely irreparable harm absent preliminary relief; (3) [that] the balance of equities tips

9 in [Plaintiffs’] favor; and (4) that an injunction is in the public’s interest.” Doe v. Kelly, 878 F.3d

10 710, 719 (9th Cir. 2017) (citations omitted). A “possibility” of irreparable harm is insufficient;

11 rather it must be “likely” absent an injunction. Am. Trucking Ass’n, Inc. v. City of L.A., 559 F.3d

12 1046, 1052 (9th Cir. 2009). Alternatively, “‘serious questions going to the merits’ and a balance

13 of hardships that tips sharply towards the plaintiff can support issuance of a preliminary

14 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and

15 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

16 1135 (9th Cir. 2011). Plaintiffs bear the burden to show that these factors are met. DISH Network

17 Corp. v. FCC, 653 F.3d 771, 776-77 (9th Cir. 2011).

18

A. Likelihood of Success on the Merits for Claims Based on Denial of Outdoor

Exercise. 19

Plaintiffs argue that the absolute denial of outdoor exercise violates both the Eighth 20

Amendment and the Fourteenth Amendment. The Eighth Amendment provides: “Excessive bail 21

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 22

The Fourteenth Amendment provides in relevant part: “No state shall make or enforce any law 23

which shall abridge the privileges or immunities of citizens of the United States; nor shall any 24

state deprive any person of life, liberty, or property, without due process of law; nor deny to any 25

person within its jurisdiction the equal protection of the laws.” 26

The Ninth Circuit has explained that the “status of the detainees determines the appropriate 27

standard for evaluating conditions of confinement.” Gary H. v. Hegstrom, 831 F.2d 1430, 1432 28

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1 (9th Cir. 1987). The Eighth Amendment, which prohibits cruel and unusual punishment, “applies

2 to convicted prisoners.” Id. (internal citation and quotation omitted). “By contrast, the more

3 protective fourteenth standard applies to conditions of confinement when detainees . . . have not

4 yet been convicted.” Id. (internal citation omitted).

5

The Supreme Court has not addressed the issue of a right to outdoor exercise directly but

6 has alluded in dicta to the fact that a denial of outdoor exercise for inmates might violate the

7 Eighth Amendment in some circumstances. The Supreme Court explained:

8

Some conditions of confinement may establish an Eighth Amendment

9

violation “in combination” when each would not do so alone, but only when

they have a mutually enforcing effect that produced the deprivation of a

10

single, identifiable human need such as food, warmth, or exercise – for

example, a low cell temperature at night combined with a failure to issue

11

blankets. Compare Spain v. Procunier, 600 F.2d 189, 199 (CA9 1979)

12

(outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per day), with Clay v. Miller, 626 F.2d 345, 347 (CA4

13

1980) (outdoor exercise not required when prisoners otherwise had access

to dayroom 18 hours per day).

14

15 Wilson v. Seiter, 501 U.S. 305 (1991) (emphasis in original).

16

The Supreme Court has not addressed the right to outdoor exercise under the Fourteenth

17 Amendment but has addressed the general rights of pretrial detainees, “those persons who have

18 been charged with a crime but who have not yet been tried on the charge.” Bell v. Wolfish, 441

19 U.S. 520, 525 (1979). The Court stated:

20

In evaluating the constitutionality of conditions or restrictions of pretrial

21

detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether

22

those conditions amount to punishment of the detainee.

23 Id. at 535. “Restraints that are reasonably necessary to the institution’s interest in maintaining jail
24 security do not, without more, constitute unconstitutional punishment.” Id. at 540. The “effective
25 management of the detention facility . . . is a valid objective that may justify imposition of
26 conditions and restrictions of pretrial detention and dispel any inference that such restrictions are
27 intended as punishment.” Id. at 540. In Bell v. Wolfish, the Supreme Court considered the
28
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1 practice of “double bunking” and held that “the Government concededly may detain [the

2 defendant] to ensure his presence at trial and may subject him to restrictions and conditions of the

3 detention facility so long as those conditions and restrictions do not amount to punishment, or

4 otherwise violate the Constitution.” Id. at 536-537. The Court found that prison officials “must

5 be free to take appropriate action to ensure the safety of inmates and corrections personnel and to

6 prevent escape or unauthorized entry.” Id. at 547.

7

The key to the analysis under the Fourteenth Amendment is whether a specific practice in a

8 facility for pretrial detainees equals “punishment.” Thus, a “court must decide whether the

9 disability is imposed for the purpose of punishment or whether it is but an incident of some other

10 legitimate governmental purpose.” Id. at 538. If there is no “expressed intent to punish,” that

11 analysis “generally will turn on ‘whether an alternative purpose to which [the restriction] may

12 rationally be connected is assignable for it, and whether it appears excessive in relation to the

13 alternative purpose assigned [to it].’” Id. (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,

14 168-69 (1963) (brackets in original). If the condition is “reasonably related to a legitimate

15 nonpunitive objective, it does not, without more, amount to punishment.” Id. Legitimate

16 objectives include both insuring that the pretrial detainee is available for trial and to facilitate the

17 effective management of the jail. Id. at 539-540.

18

Although the Fourteenth Amendment governs the rights of a pretrial detainee, the Eighth

19 Amendment provides a “minimum standard of care.” Jones v. Johnson, 782 F.2d 769, 771 (9th

20 Cir. 1986.) Thus, the Ninth Circuit has held that “pretrial detainees’ rights under the Fourteenth

21 Amendment are comparable to prisoners’ rights under the Eighth Amendment” and therefore

22 applied the “same standards” to analyzing the rights of pretrial detainees. Frost v. Agnos, 152

23 F.3d 1124, 1128 (9th Cir. 1998) (citing Redman v. Cty. of San Diego, 942 F.2d 1435, 1441 (9th

24 Cir. 1991).) And in Demery v. Arpaio, the court explained the difference between the analysis

25 under the Eighth Amendment and Fourteenth Amendment: “Both distinctions are critical because

26 the Fourteenth Amendment prohibits all punishment of pretrial detainees, while the Eighth

27 Amendment only prevents the imposition of cruel and unusual punishment.” 378 F.3d 1020, 1029

28 (9th Cir. 2004). An independent constitutional violation is not required to find that punishment 24

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1 exists. Id. at 1030.

2

The Ninth Circuit has not clearly ruled that preventing inmates from direct access to

3 sunlight is a violation of the Eighth Amendment or Fourteenth Amendment, but several cases have

4 found violations of those amendments where inmates were denied outdoor exercise. The first case

5 to address this issue is Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979), where the Ninth Circuit

6 held: “we do not consider it necessary to decide whether deprivation of outdoor exercise is a per

7 se violation of the eighth amendment.” Id. at 199. In Spain, the court addressed the lack of

8 outdoor exercise for inmates in the “adjustment center” (“AC”) – inmates who were confined

9 because they had disciplinary problems or were disruptive. Id. at 192. The court affirmed the

10 district court’s order requiring that all inmates who had been confined in the AC for four years or

11 more be allowed to exercise outdoors for one hour a day, five days a week, “unless inclement
weather, unusual circumstances, or disciplinary needs made that impossible.” Id. at 199-200. The 12
court affirmed the district court’s finding that the “denial of fresh air and regular outdoor exercise 13
and recreation constitutes cruel and unusual punishment.” Id. at 199. Some inmates in the AC 14
were “permitted to exercise one at a time in a corridor fronting on eight or nine cells.” Id. Those 15
exercise periods were “set for one hour a day, five days a week, but in practice the exercise times 16
were often far shorter than one hour and less frequent than five days a week.” Id. In addition, a 17
subgroup, inmates on the first floor of the AC, “were never permitted any outdoor exercise or 18
recreation.” Id. 19
In analyzing the need for outdoor exercise in Spain, the Ninth Circuit explained that the
20 district court had found that “several factors combined to make outdoor exercise a necessity.” Id.
21 The AC inmates were in “continuous segregation, spending virtually 24 hours every day in their
22 cells with only meager out-of-cell movements and corridor exercise” and with “minimal” contact

23 with other inmates. Id. at 199-200.

24

The court rejected arguments by the State of California that concerns about safety and risk

25 of escape justified a denial of outdoor exercise. Id. at 200. “The cost or inconvenience of

26 providing adequate facilities is not a defense to the imposition of a cruel and unusual punishment.”

27 Id. The court concluded: “In light of all the conditions existing in the AC, it was cruel and

28 unusual punishment for a prisoner to be confined for a period of years without opportunity to go

25

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1 outside except for occasional court appearances, attorney interviews, and hospital appointments.”

2 Id.

3

Similarly, in Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981), the Ninth Circuit

4 recognized that a court must consider conditions of confinement “in the context of the prison

5 environment, especially when the ill-effects of particular conditions are exacerbated by other

6 related conditions.” Id. at 1133. The Wright v. Rushen court, like the Supreme Court in Wilson v.

7 Seiter, specifically referred to Spain, where outdoor exercise was required because inmates were

8 otherwise confined to small cells almost 24 hours per day, and compared it to Clay v. Miller,

9 where outdoor exercise was not required because inmates had access to a “day room” for 18 hours

10 a day. Id. Wright v. Rushen reversed the district court’s preliminary injunction finding a violation

of the Eighth Amendment based on the “totality of the circumstances” and ordering a certain 11

amount of outdoor exercise per day. Id. at 1134. The Ninth Circuit remanded to the district court 12

for consideration of issues such as concerns about security and costs. Id. The implication of the 13

ruling in Wright v. Rushen and the citation to Clay v. Miller is that the Eighth Amendment does 14
not require outdoor exercise when inmates otherwise have ample access to recreation out of their 15
cells. 16
Later, in Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984), the Ninth Circuit upheld a
17 preliminary injunction requiring outdoor exercise for inmates because they were confined to their

18 cells for 23 ½ hours per day while in administrative segregation and because over 1,000 inmates

19 had been confined to these conditions of administrative segregation for over a year. Id. at 1492-

20 93.

21

The court then addressed a similar situation in Allen v. Sakai, 48 F.3d 1082 (9th Cir. 1992).

22 There, the court held, analyzing the issue of qualified immunity, that “after Spain and Toussaint,

23 defendants cannot legitimately claim that their duty to provide regular outdoor exercise to

24 [plaintiff] was not clearly established.” Id. at 1088. The court found that the plaintiff had alleged

25 the violation of a “clearly established law.” Id. In that case, even though the goal was to provide

26 the plaintiff with five hours of outdoor exercise per week, he received only 45 minutes of outdoor

27 exercise in a six-week period and was confined to his cell for almost 24 hours a day. Id. at 1087.

28 The court also noted that the “length and severity” of the denial of outdoor exercise “may be 26

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1 critical questions at trial,” but they were not “dispositive” at the stage of summary judgment. Id.

2 at 1088.

3

Other decisions made general statements indicating a right to outdoor exercise. In Keenan,

4 the court stated that “[d]eprivation of outdoor exercise violates the Eighth Amendment rights of

5 inmates confined to continuous and long-term segregation.” Keenan v. Hall, 89 F.3d 1083, 1089

6 (9th Cir. 1996) (internal citation omitted). The Keenan court found that confinement to one room

7 measuring either 10 feet by 12 feet or 8 feet by 12 feet with a fourth perforated wall admitting

8 sunlight only through the top third of the wall for six months without any “outdoor exercise”

9 potentially constituted violation of the Eighth Amendment, reversed the grant of summary

10 judgment for defendants, and remanded the case for trial. Id. at 1088-90.
And the court in LeMaire later stated that “this circuit has determined that long-term denial 11
of outside exercise is unconstitutional.” LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993) 12
(emphasis in original). The court clearly articulated a difference between in-cell exercise, out-of13
cell exercise, and outdoor exercise in finding that an institutional denial of “outside” exercise is 14
generally unconstitutional, barring individualized disciplinary needs. Id. Nevertheless, the Ninth 15
Circuit found that the denial of outdoor exercise, which occurred during “most of a five-year 16
period of incarceration” was constitutional because the denial was based on plaintiff’s repeated 17
violation of rules, including attacks on correctional officers, and his vow to repeat those attacks. 18
Id. However, the court distinguished its ruling from Spain, because the decision regarding
19 plaintiff in LeMaire was made on an individual basis, as opposed to an institutional decision to
20 deny all inmates outdoor exercise in Spain. Id. The court noted that an individualized assessment
21 based on the behavior of the inmate could justify a denial of outdoor exercise. Id.

22

In Lopez, the court cited Allen and held that denial of outdoor exercise for six and a half

23 weeks potentially violated the Eighth Amendment and thus that there was a genuine issue of

24 material fact as to whether defendants were deliberately indifferent to his needs. Lopez v. Smith,

25 203 F.3d 1122, 1132-33 (9th Cir. 2000).

26

However, the court later explained in Norwood: “Allen does not hold that a prisoner’s right

27 to outdoor exercise is absolute and indefeasible, or that it trumps all other considerations.”

28 Norwood v. Vance, 591 F.3d 1061, 1068 (9th Cir. 2010). The court held that the reason that 27

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1 plaintiffs in Allen survived summary judgment is that prison officials relied upon “inconsequential

2 logistical concerns” to justify the denial of outdoor exercise. Id. (citing Allen, 48 F.3d at 1088).

3 In Norwood, the court found that denying an inmate the right to outdoor exercise can be justified if

4 it is necessary to “bring violence under control.” Id. at 1069. There, the plaintiff was denied

5 outdoor exercise in “four separate extended lockdowns over the course of two years.” Id. at 1065.

6 The court further held that, although exercise is “one of the basic human necessities protected by

7 the Eighth Amendment, . . . a temporary denial of outdoor exercise with no medical effects is not a

8 substantial deprivation.” Id. at 1070 (internal citation and quotation omitted). Thus, the court

9 found that the individual defendants were entitled to a defense of qualified immunity. Id.

10

Specifically with regard to pretrial detainees, no court has addressed the right of pretrial

11 detainees to outdoor exercise. However, one court has addressed the issue of access to exercise,

12 and another addressed the issue of access to direct sunlight. See Pierce v. County of Orange, 526

13 F.3d 1190, 1208 (9th Cir. 2008) (addressing amount of exercise); Rutherford v. Pitchess, 710 F.2d

14 572, 579 (9th Cir. 1983) (addressing lack of clear windows). In Rutherford, the court considered a

15 challenge by pretrial detainees to the conditions of the Los Angeles County jail under the

16 Fourteenth Amendment and stated that “we also are conscious of the fact that pre-trial detainees,

17 who have not been convicted of any crime, retain important constitutional rights which must be

18 protected.” 710 F.2d at 575. The Ninth Circuit overturned the district court’s requirement that

19 Los Angeles County reinstall transparent windows for pretrial detainees. Id. at 579. The inmates

20 argued that they had a psychological need for exposure to the outside world and that the

21 combination of lack of windows, inadequate rooftop exercise, overcrowding, and lack of indoor

22 recreational activities, violated their Fourteenth Amendment rights. Id. The district court had held

23 that the lack of windows was similar to “loading a detainee with chains and shackle and throwing

24 him in a dungeon” and inferred an intent to punish that violated the Fourteenth Amendment. Id.

25 The Ninth Circuit disagreed and found that Los Angeles County had a legitimate reason for

26 covering the windows because inmates had previously broken windows, and those actions

27 “seriously interfered with security at the facility.” Id.

28

In Pierce, the Ninth Circuit addressed the right of pretrial detainees to a certain amount of

28

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1 exercise without addressing the right to outdoor exercise under both the Eighth and Fourteenth

2 Amendments. The court held that 90 minutes of exercise a week or less than 13 minutes a day

3 does not meet constitutional standards. 526 F.3d at 1208, 1212. The court found that the County

4 had “provided nothing more” than “a generalized reference to institutional security concerns” to

5 justify the minimal amount of exercise provided, and thus the County failed to meet its burden to

6 show that the restriction was reasonably related to the institutional concern. Id. at 1212.

7

The Ninth Circuit’s most recent consideration of prison conditions for pretrial detainees

8 came in Shorter v. Baca, 895 F.3d 1178 (9th Cir. 2018). The court weighed the conditions of

9 pretrial detainees under the Fourteenth Amendment by employing the standards set forth in

10 previous cases analyzing the Eighth Amendment. Id. at 1185-86. The court summarized the law

11 in holding: “We have confirmed, time and time again, that the Constitution requires jail officials to

12 provide outdoor recreation opportunities, or otherwise meaningful recreation, to prison inmates.”

13 Id. at 1185 (emphasis added). The court also stated that “we have concluded that all inmates are

14 entitled to an individualized evaluation and recreation, barring inclement weather, unusual

15 circumstances, or severe and imminent security risks.” Id. at 1186 (emphasis in original).

16

Other circuits have reached similar decisions regarding outdoor exercise in finding that

17 inmates have a right to exercise, but no other circuit has specifically held that an inmate has a right

18 to outdoor exercise. See, e.g., Blake v. Hall, 668 F.2d 52, 57 (1st Cir. 1981) (confinement in

19 “dungeon” for 30 days without natural light or ventilation and without any opportunity for out-of-

20 cell or outdoor exercise may amount to cruel and unusual punishment); Anderson v. Coughlin, 757

21 F.2d 33, 35 (2d Cir. 1985) (citations omitted) (“some opportunity for exercise must be afforded to

22 prisoners”); Peterkin v. Jeffes, 855 F.2d 1021, 1028-29 (3d Cir. 1988) (in considering deprivation

23 of outdoor exercise, court must consider “(1) the opportunity to be out of the cell, (2) the

24 availability of recreation within the cell, (3) the size of the cell, and (4) the duration of

25 confinement”); Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992) (denial of out-of-cell exercise

26 may constitute cruel and unusual punishment); Maze v. Hargett, 200 F.3d 814 (5th Cir. 1999)

27 (deprivation of outdoor exercise can constitute a violation of the Eighth Amendment, but the court

28 must consider the size of the inmate’s cell, the amount of time the inmate spends locked in his cell 29

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1 every day, and the overall length of confinement); Mayfield v. Ellett, 102 F.3d 549 (5th Cir. 1996)

2 (pretrial detainee was allowed to exercise in dayroom and jail gym with frosted skylight, so no

3 violation of Fourteenth Amendment); Wilkerson v. Maggio, 703 F.2d 909, 911-12 (5th Cir. 1983)

4 (inmate was not allowed any outdoor exercise for five years but was allowed one hour every day

5 of out-of-cell exercise with windows and fresh air and thus no Eighth Amendment violation);

6 Rodgers v. Jabe, 43 F.3d 1082, 1088-89 (6th Cir. 1995) (qualified immunity for defendants

7 because it was not clearly established how much exercise time an inmate should have); French v.

8 Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (lack of exercise is Eighth Amendment violation

9 where “movement is denied and muscles are allowed to atrophy” and the health of the inmate is

10 “threatened”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (applying the Third Circuit’s

11 four-factor test from Peterkin above and finding no constitutional violation); Apodaca v.

12 Raemisch, 864 F.3d 1071, 1078-79 (10th Cir. 2017) (denial of outdoor exercise is not per se

13 violation of eighth amendment; inmates in administrative segregation were prohibited from

14 outdoor exercise for 11 months but were in recreation room five times a week); Lowe v. Raemisch,

15 864 F.3d 1205, 1208-10 (10th Cir. 2017) (summarizing law of Tenth Circuit in which denial of

16 outdoor exercise can be constitutional violation under some circumstances); Bass v. Perrin, 170

17 F.3d 1312, 1316 (11th Cir. 1999) (complete denial of outdoor exercise time for several years did

18 not violate Eighth Amendment because of attack on another inmate, murder of correctional

19 officer, and escape attempt); Wilson v. Blankenship, 163 F.3d 1284, 1291-94 (11th Cir. 1998) (no 20 need to provide outdoor exercise where no facility existed and confinement was brief).12

21

The Ninth Circuit thus has found that outdoor exercise is necessary when inmates or

22 pretrial detainees are held in cells with little opportunity for out-of-cell movement, where the

23 incarceration is lengthy, and where there is no concern about safety that requires elimination of

24

25 12 The reason other circuits may focus on “out-of-cell exercise” as opposed to “outdoor
26 exercise” may be that, in other parts of the country, cold weather makes outdoor exercise impractical. For example, in other circuits, inmates have opposed outdoor exercise by challenging
27 forced exercise outdoors with insufficient clothing or forced exercise outdoors in inclement 28 weather. See, e.g., Anderson v. Coughlin, 757 F.2d 33, 34 (2d Cir. 1985).
30

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1 outdoor exercise.

2

The references by the Supreme Court in Wilson v. Seiter and by the Ninth Circuit in Wright

3 v. Rushen to the Fourth Circuit’s ruling in Clay v. Miller indicate that access to day rooms or other

4 indoor exercise areas, without a showing of actual harm, can make up for lack of outdoor exercise.

5 All of these factors are interrelated, and there is no bright line test to determine if and when

6 inmates are entitled to outdoor exercise – as opposed to “meaningful recreation.”

7

Although the Ninth Circuit has not explicitly adopted the test set forth by the Third and

8 Fifth Circuits, the cases cited above show that the Ninth Circuit, in deciding whether a deprivation

9 of outdoor exercise constitutes a violation of the Eighth Amendment, also considers the factors set

10 forth by the Third Circuit in Peterkin: “(1) the opportunity to be out of the cell, (2) the availability

11 of recreation within the cell, (3) the size of the cell, and (4) the duration of confinement.” 855

12 F.2d at 1028-1029; see also Pierce, 526 F.3d at 1212 (“Determining what constitutes adequate

13 exercise requires consideration of ‘the physical characteristics of the cell and jail and the average

14 length of stay of the inmate.’”) (citing Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994)).

15

1. Scientific Evidence Regarding Access to Light Is Inconclusive.

16

The evidence in the record at this point is inconclusive as to whether the lack of access to

17 direct sunlight creates a medical risk for inmates in County Jails 4 and 5. Zeitzer’s opinion is that

18 harm occurs when there is not a large enough difference between the light during the day and the

19 light during the night. Because there are no measurements of the light during the night and only

20 measurements during the day, it is impossible for the Court to determine if Plaintiffs are suffering

21 harm caused by an insufficient difference between light during the day and light during the night.

22 Plaintiffs have not met their burden on this issue, given the evidence currently available.

23

Access to sunlight from cells, common areas, and gyms differs between County Jails 4 and

24 5. In County Jail 5, each inmate has access to a window with sunlight – albeit weak – in each cell.

25 In County Jail 4, only inmates in Blocks A and D have access to louvered windows with direct

26 sunlight and fresh air, and other inmates have no direct access to any natural light from their cells

27 other than from ambient light from windows at the ends of the hall. Inmates in both County Jails

28 4 and 5 have access to sunlight that is filtered through grates covering skylights in the gym in 31

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1 County Jail 5 and opaque side windows and an opaque skylight in County Jail 4.

2

Plaintiffs complain about the type of harms (depression, anxiety) that Zeitzer links to lack

3 of adequate difference between light during the day and light at night. However, the issue is one

4 of causation. For example, it is understandable that an inmate awaiting trial for a long period of

5 time is depressed and anxious, but the question here is whether lack of direct sunlight caused

6 additional harm. The evidence at this time is not clear, and Plaintiffs do not meet their burden to

7 show that the conditions caused their physical problems because the evidence at this time does not

8 show causation between the lack of direct sunlight and the medical problems.

9

To the extent that Plaintiffs claim harm from lack of direct sunlight, as opposed to lack of a

10 sufficient difference between light at night and light during the day, the evidence does not support

11 that claim. Zeitzer opined that the type of light that a person receives generally does not matter, as

12 long as the light source does not filter out certain types of light, and Zeitzer does not know what

13 type of light inmates receive. Thus, Plaintiffs have not met their burden for purposes of this

14 motion for preliminary injunction to show that the amount of light or type of light they receive is

15 harmful to them.

16

2. General Concerns about Safety Do Not Justify Compete Denial of

Outdoor Exercise.

17

Defendants cannot justify their denial of outdoor exercise based on a generalized concern

18

about safety. Here, Defendants’ nonspecific reasoning for their concerns about safety is similar to

19

Spain, where the defendants provided only general explanations about safety and the Ninth Circuit

20

rejected those concerns as a justification for denial of outdoor exercise. 600 F.2d at 200. This

21

case is not like Norwood, where defendants were able to justify facility-wide lockdowns over long

22

periods of time based on specific events. 591 F.3d at 1065-70. Defendants here claim that they

23

are not able to provide outdoor exercise in a safe manner because there is no enclosed space

24

outdoors for inmates to exercise. The City and County of San Francisco now claims that it lacks

25

manpower to oversee pretrial detainees to exercise in the open field and that the pretrial detainees

26

could escape because there are no viable fences. However, the City and County of San Francisco

27

cannot create the problem of having no secure outdoor exercise area and then claim that concerns

28

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1 about safety require the denial of outdoor exercise. For example, the City and County of San

2 Francisco could not construct a jail for 100 pretrial detainees when there is clear information that

3 there are 200 pretrial detainees, place the pretrial detainees in an overcrowded jail, and then claim

4 that valid penological interests require San Francisco to detain the pretrial detainees in those

5 overcrowded conditions because of concerns about security. When the City and County of San

6 Francisco most recently constructed the County Jail 5, it chose not to renew the outdoor exercise

7 area. Instead, the City and County of San Francisco constructed an indoor exercise area at the

8 County Jail 5 with opaque windows. In essence, Defendants argue that they can only provide

9 outdoor exercise by refencing the field and escorting inmates there one-by-one, and that system is

10 too expensive. But the Ninth Circuit rejected expense as an excuse in Allen, 48 F.3d at 1088, and

11 Spain, 600 F.2d at 200. The City and County of San Francisco created the problem and cannot

12 justify denying outdoor exercise with this self-created situation.

13

3. Compliance with State Law Does Not Equal Compliance with the

14

Constitution.

Defendants argue that the amount of time provided to inmates in County Jails 4 and 5 is 15

sufficient because they comply with state law and regulations. However, it is axiomatic that 16

compliance with a state law or regulation does not necessarily equal compliance with the U.S. 17

Constitution. 18

19

4. Eighth Amendment Analysis of Peterkin Factors.

The Court applies the standards set forth in Peterkin to analyze whether deprivation of 20

outdoor exercise for inmates complies with constitutional standards. Those four standards are, as 21
stated above: the opportunity to be out of cell, the opportunity to exercise in cell, the size of the 22
cell, and the duration of confinement. 855 F.2d at 1028-29. In order to analyze the situation, the 23
Court must assess the inmates in County Jails 4 and 5 separately, because the time spent out of cell 24
differs in each location. In addition, the Court must analyze the deprivation of outdoor exercise 25
for inmates based on the type of their placement – whether general population, administrative
26 segregation, or disciplinary lockdown – again because their total amount of out-of-cell time differs
27 in each placement.

28

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i.

Length of Incarceration.

1

As noted above, Plaintiffs have been incarcerated for different periods of time, up to eight 2

years. Different cases have found that deprivation of outdoor exercise constitutes a violation of 3

the Eighth Amendment. Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (denial of access 4

to “out of cell” exercise and denial of access to outdoor exercise yard for almost 14 months 5

constituted Eighth Amendment violation); Lopez v. Smith, 203 F. 3d 1122, 1132-33 (9th Cir. 6

2000) (six and a half weeks); Keenan, 83 F.3d at 1088-190 (6 months); Allen, 48 F.3d at 1086 (six 7

weeks); Toussaint, 722 F.2d at 1492 (one year); Spain, 600 F.2d at 200 (four years). In those 8

cases, there is no indication that there were any out-of-cell exercise or indoor exercise areas 9

available for some of the inmates, as there are here. Therefore, the holdings of those cases are 10

helpful but not dispositive in analyzing this issue. 11

ii.

Inmates in General Population in County Jail 5.

12

The evidence shows that inmates in the general population in County Jail 5 have access to 13

adequate amounts of exercise and fresh air but not at the same time. The obvious benefit of 14

outdoor exercise is that an inmate receives exercise, light that is bright enough to offset any night 15

light, and fresh air at the same time. County Jail 5 has day rooms that are larger than the cells and 16

to which inmates in the general population have significant access. Based on the site visit, the 17

Court notes that the day rooms in County Jail 5 are not large enough for vigorous exercise but do 18

allow some space for some limited exercise. General population inmates are allowed between 19

four and half to eight hours access to the day room per day and 30 minutes of gym time, seven 20

days per week. The Court finds that the access to the day room and gym are sufficient to offset 21

the denial of outdoor exercise and thus that Plaintiffs do not meet their burden to show likelihood 22

of success on the merits that the conditions of confinement for inmates in the general population in 23

County Jail 5 violate the Eighth Amendment. 24

iii.

Inmates in Administrative Segregation in County Jail 4.

25

Inmates in administrative segregation in County Jail 4 have access to the gym for three 26

hours total in a week, with no day room access. They are thus in their cells 23 ½ hours a day. The 27

cells are too small to allow any meaningful recreation. The Court finds that the out-of-cell time 28

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1 for inmates in administrative segregation in County Jail 4 is insufficient under the standard of

2 Spain and Toussaint and thus that the amount of exercise they receive violates the Eighth

3 Amendment. Just as in Spain and Toussaint, where inmates were confined to cells 23 ½ hours a

4 day, the Court finds that confinement to cells for 23 ½ hours a day violates the Eighth

5 Amendment. The issue in County Jail 4 for inmates in administrative segregation is not the denial

6 of outdoor exercise but a denial of outdoor exercise without a meaningful alternative of out-of-cell

7 time.

8

iv. Inmates in Administrative Segregation in County Jail 5.

9

Inmates in administrative segregation in County Jail 5 have access to the gym 30 minutes

10 per day, seven days per week – for a total of 210 minutes a week, and an additional 30 minutes per

11 day, seven days a week, in the day room. They are thus in their cells 23 hours a day. The cells are

12 too small to allow any meaningful recreation. Given that the relief that the Ninth Circuit ordered

13 in Spain was to provide one hour a day, five days a week of outdoor exercise, the Court finds here

14 that the amount of time inmates in administrative segregation in County Jail 5 barely meets

15 constitutional standards.

16

v. Inmates in General Population in County Jail 4.

17

County Jail 4 is different from County Jail 5 in that the “day room” areas differ. Inmates

18 in the general population in County Jail 4 are allowed only 90 minutes of gym time, two days a

19 week, with 12 hours per day in a day room or side room. The cells in County Jail 4 are too small

20 to allow any meaningful recreation. The smaller side rooms for most inmates are not large enough

21 for meaningful exercise. The day room for Block J inmates is larger and could allow some very

22 limited exercise, and the day room for Block J has louvered windows that allow fresh air and

23 direct sunlight. Although the side rooms that inmates in the general population can use are small,

24 the Court finds that the total amount of out-of-cell time barely meets constitutional scrutiny.

25 Plaintiffs have not prevailed on the likelihood of success on the merits prong in showing that the

26 combination of access to the gym for 180 minutes a week with 12 hours of access daily to the side

27 rooms violates the Eighth Amendment.

28 / / / 35

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vi. Inmates in Disciplinary Lockdown. 1
In seeking preliminary injunctive relief, Plaintiffs then ask that the Court require 2
Defendants to “provide all prisoners in disciplinary isolation genuine and full review as required 3
by state regulations[.]” (Dkt. 8.) There is no evidence that Plaintiffs have been denied review 4
when placed in disciplinary lockdown, and the only evidence is that they are given full review. 5
Therefore, Plaintiffs fail to meet their burden to show likelihood of success on this issue. 6
Second, to the extent that Plaintiffs complain that inmates in disciplinary lockdown lack 7
access to any exercise, Defendants are justified in denying outdoor exercise to inmates on 8
disciplinary lockdown. Courts have clearly held that denial of outdoor exercise for disciplinary 9 reasons is constitutional, even if for extended periods of time based on new infractions. See, e.g.,
10 Noble v. Adams, 646 F.3d 1138 (9th Cir. 2011) (finding qualified immunity appropriate for
11 individual defendants who put in place a lockdown that deprived inmates of exercise yard for
12 slightly over a year); May v. Baldwin, 109 F.3d 557 (9th Cir. 1997) (deprivation of outdoor
13 exercise for 21 days while in disciplinary segregation unit did not constitute violation of Eighth
14 Amendment); LeMaire, 12 F.3d at 1458 (denial of out of cell exercise warranted, even for most of
15 five-year period of time, because inmate continuously attacked guards and other inmates);
16 Hayward v. Procunier, 629 F.2d 599 (9th Cir. 1980) (temporary denial of outdoor exercise

17 because of lockdown did not constitute Eighth Amendment violation); Norwood, 592 F.2d at

18 1065-70 (four extended lockdowns over a two-year period that deprived inmate of outdoor

19 exercise during lockdown was constitutional).

20

5. Fourteenth Amendment Analysis.

21

All but one of the Plaintiffs are pretrial detainees. Thus, the Court must analyze their status

22 both under the Eighth and Fourteenth Amendments.13 Although, as noted above, courts have

23 analyzed the right to outdoor exercise under the Eighth Amendment, even for pretrial detainees,

24 the Court finds that a separate analysis of the Fourteenth Amendment is appropriate. Even if the

25 Eighth Amendment does not require outdoor exercise for inmates held for lengthy periods of time,

26

27

13 Only the Eighth Amendment applies to Carlos, the only inmate who has been convicted among the named Plaintiffs. His claim for damages for past violations of the Fourteenth

28

Amendment remains, but his prospective claim for injunctive relief is based only on the Eighth Amendment.

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1 the Fourteenth Amendment does.

2

Under the Fourteenth Amendment analysis prescribed in Bell v. Wolfish, the Court finds

3 that the denial of outdoor exercise is punishment if for a lengthy period of time. Defendants’

4 express intent is to maintain the safety of the jails, because there is no fenced, contained outdoor

5 exercise area for the inmates. Because there is no “expressed intent to punish,” the analysis is

6 whether the denial is “excessive in relation to the alternative purpose assigned” to it and whether

7 the denial is “reasonably related to a legitimate nonpunitive objective;” if so, “it does not, without

8 more, amount to punishment.” Bell v. Wolfish, 441 U.S. at 538. Defendants argue that their

9 legitimate objective here is to effectively manage the jail, which is a valid concern under Bell v.

10 Wolfish. Id. at 539-40. But as discussed above, San Francisco created the problem at issue by

11 deliberately constructing a jail without access to direct sunlight. Thus, San Francisco cannot

12 create the problem and then claim a legitimate need for safety based on its choice about

13 construction of the jail. The Court finds that complete denial of outdoor exercise for an inmate

14 confined more than four years is punishment because the denial of outdoor exercise significantly

15 exceeds and is independent of the “inherent discomforts of confinement.” Demery, 378 F.3d at

16 1030. Although inmates expect to be deprived of access to the outdoors, they do not expect and

17 society does not expect that inmates should be deprived of all access to the outdoors for a long

18 period of time – up to eight years. Even if the evidence shows that access to direct sunlight is not

19 medically necessary, forcing people to live without direct sunlight for many years is simply

20 punishment. As a point of comparison, scientific studies cannot even create a scientific

21 experiment in which people voluntarily deprive themselves of direct sunlight because such a study

22 is unethical. If even a voluntary study of that nature is unethical, then inmates’ involuntary

23 confinement here amounts to punishment. However, depriving people of access to direct sunlight

24 is not punishment if for a short period of time. Society expects that inmates will be deprived of

25 many of the benefits of freedom.

26

The purpose of pretrial detention is to confine a criminal defendant to ensure that he

27 appears for trial and that he does not create a risk to the public before trial. Stripped of its

28 legalese, Bell v. Wolfish stands for the proposition that the conditions of confinement are merely to

37

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1 make sure that the criminal defendant remains ready to appear for trial in a safe manner in the jail.

2 Thus, any condition of confinement that exceeds that goal constitutes punishment. Here, the

3 condition of confinement that strips the ability to see direct sunlight for a period of years is not

4 necessary to ensure that Plaintiffs are ready to appear for trial in a safe manner in County Jails 4

5 and 5. For that reason, the Court finds that confining a pretrial detainee, an innocent person, in

6 such a situation where he does not see direct sunlight for years is not rationally related to the non-

7 punitive nature of confinement and violates the Fourteenth Amendment.

8

In this case, although there is no clear guidance from the appellate courts on this issue, the

9 Court finds that depriving an inmate of access to direct sunlight for more than four years is

10 punishment. For purposes of the preliminary injunction, the Court chooses the four-year mark for

11 the Constitutional cut-off because Spain discusses that period of time as a lengthy time for

12 incarceration. Spain addressed a situation in which inmates were incarcerated for four years

13 without outdoor exercise, and its progeny discuss situations under the more difficult standard of

14 the Eighth Amendment, in finding that deprivation of outdoor exercise for shorter periods with no

15 alternative violates the Eighth Amendment. Although other courts discuss shorter periods of

16 deprivation as constitutional violations, the Court anchors this decision to the bellwether opinion

17 in Spain.14

18

Although the Court realizes that any injunction draws an arbitrary line, the Court bases this

19 decision to provide a certain amount of time in direct sunlight partially on Zeitzer, who

20 recommends 30 minutes of sunlight per day. The Court also takes into consideration that the

21 medical evidence is unclear because there are not readings for the light in the cells at night. And

22 given that inmates receive sunlight, albeit filtered, throughout the day, it is unclear if Zeitzer’s

23 recommendation would be the same for them. Zeitzer also opined that 30 minutes of sunlight one

24 to two times a week might suffice to re-set the Circadian rhythm. Thus, the Court ORDERS

25 Defendant the City and County of San Francisco to provide all pretrial detainees in the general

26

27

14 At jury trial, a jury who considers the claims under 42 U.S.C. §1983 for monetary

28

damages can decide if they believe that deprivation of direct sunlight for shorter period of years constitutes a violation of the Fourteenth Amendment.

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1 population and administrative segregation who have been incarcerated for more than four years

2 access to direct sunlight at least one hour a week, absent disciplinary issues such as placement in

3 disciplinary lockdown or other emergency issues that prevent this access. This injunction does not

4 apply to inmates in disciplinary lockdown. Again, this amount of time spent in direct sunlight is

5 slightly different from the amount Zeitzer recommends, but the Court is also concerned about the

6 practical ability of the City and County of San Francisco to provide access to direct sunlight.

7

B. Likelihood of Success on the Merits for Claims Based on Administrative

Segregation.

8

Plaintiffs who are in administrative segregation in both jails claim that Defendants have

9

violated and are continuing to violate their Eighth and Fourteenth Amendment rights by subjecting

10 them to “harm caused by excessive confinement, inadequate physical exercise, social isolation and

11 environmental deprivation through forcing members of the sub-class to suffer confinement of up

12 to 23.5 hours a day in small, inadequate cells, including eating, sleeping, and defecating in those

13 cells.” (Dkt. 1 (Complaint, ¶¶ 70, 74).)

14

As noted above, in a supplemental memorandum submitted even after opposition and

15 reply, Plaintiffs requested entirely new and very detailed relief regarding administrative

16 segregation.15 Specifically Plaintiffs added a request for the following: a hearing, written notice of

17 the reasons for placement into administrative segregation, immediate release into the general

18 population after one year in administrative segregation, and mental health treatment for those re-

19 housed in the general population. (Dkt. 79.) Plaintiffs’ claim is essentially that Defendants are

20 depriving them of their right under the due process clause not to be held in administrative

21 segregation without procedural safeguards listed above, such as a hearing and written notice. 16 It

22 is undisputed that inmates placed into administrative segregation do not have a hearing, and

23 several Plaintiffs state that they were placed into administrative segregation without an

24 explanation other than an oral one. Defendants do not contest these allegations.

25

15 Plaintiffs fail to comply with Fed. R. Civ. P. 7(b)(1)(B) in adding a request for relief not 26 identified in their original motion. However, Defendants had an opportunity to respond to the

additional relief Plaintiffs requested and also did not object to the addition. Therefore, the Court 27 considers this requested relief.

28

16 Plaintiffs do not appear to claim that placement in disciplinary lockdown violates the Fourteenth Amendment.

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1

The question under the Fourteenth Amendment is whether Plaintiffs have a right to the

2 specific relief they seek under the due process clause when they are placed in administrative

3 segregation. The answer is no.

4

Plaintiffs cite Wright v. Rushen, 642 F.2d 1129, 1138 (9th Cir. 1981) for the proposition

5 that the court ordered the State of California to release all inmates who had been in administrative

6 segregation for over a year and ordered the State to provide hearings for disciplinary matters.
7 (Dkt. 79 at 8-9.) This citation is not controlling, as the Ninth Circuit specifically vacated the
8 district court’s injunction on that issue and merely included the injunction as an appendix to the
9 opinion. Wright v. Rushen, 642 F.2d at 1131 (“The preliminary injunction is appended to this
10 opinion.”) The court concluded: “The preliminary injunction is vacated and the case is remanded to the district court for further proceedings consistent with this opinion.” Id. at 1135. Given this
11 ruling, Plaintiffs’ citation to a preliminary injunction that has been vacated in its entirety as
12 controlling authority is not persuasive.17
13 Whether pretrial detainees are entitled to due process for placement in administrative
14 segregation for non-disciplinary reasons is an open question under Ninth Circuit law.18 The due
15 process clause protects two types of interest: the due process clause itself (substantive due process)
16 and laws of the states (procedural due process). See Meachum v. Fano, 427 U.S. 215, 223-27
17 (1976); see also Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002) (due process claim is
18 based either on procedural or substantive due process).
19 1. Procedural Due Process.
20 The first question of procedural due process is whether state law creates a liberty interest in
21 the relief sought here: placement in the general population. The Court finds that state law here
22 does not create that liberty interest. “A state law must satisfy two requirements in order to create a
23 liberty interest protected by the Constitution. First, the law must set forth “‘substantive
24

25

17 Similarly, Plaintiffs cite Apodaca v. Raemisch, 139 S.Ct. 5 (2018), for authority for their

26

position, but they fail to identify it as a “statement of Justice respecting the denial of certiorari.” The statements in Apodaca are not controlling authority.

27

18 The only case the Court was able to find that addressed this issue directly found that a pretrial detainee does not have due process rights to a hearing if placed in administrative

28

segregation for non-disciplinary reasons, but it is an unpublished Ninth Circuit opinion that the Court cannot cite.

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1 predicates’ to govern official decision making” and, second, it must contain “explicitly mandatory

2 language,” i.e., a specific directive to the decisionmaker that mandates a particular outcome if the

3 substantive predicates have been met. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,

4 462-63 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 472 (1983)).” See also Valdez, 302 F.3d at

5 1044 n.3.

6

California Code of Regulations, title 15, § 1053 provides that each administrator of a local

7 detention facility shall develop written policies and procedures which provide for the

8 administrative segregation of inmates who are determined to be prone to escape or assault staff or

9 other inmates or likely to need protection from other inmates, if such administrative segregation is

10 determined to be necessary in order to obtain the objective of protecting the welfare of inmates

11 and staff. Such segregation shall consist of separate and secure housing, but shall not involve any

12 other deprivation of privileges than is necessary to obtain the objective of protecting the inmates

13 and staff. Id. § 1053. This language, in conjunction with a deprivation of “real substance,” could

14 be construed to create a liberty interest in freedom from administrative segregation under Sandin.

15 District courts that have considered this issue have been split on whether county jail regulations

16 sufficiently create a protected liberty interest. See Henderson v. City and County of San

17 Francisco, No. C 05-234 VRW, 2006 WL 3507944 , at *14 (N.D. Cal. 2006) (applying Hewitt and

18 concluding that the language of § 1053 does not create liberty interest); Abenth v. Palmer, No. C

19 97-2526 CRB, 1999 WL 118003, at *2 (N.D. Cal. 1999) (same, but also applying analysis under

20 Sandin of “atypical and significant hardship”); Mitchell v. Plummer, No. C 95-4346 CRB, 1998

21 WL 381992, at *6 (N.D. Cal. 1998) (applying Hewitt and concluding without elaboration that

22 language of state regulation governing state prison created liberty interest for pretrial detainee in

23 county jail because he had status both as a pretrial detainee and post-conviction defendant); Ledet

24 v. Hennessy, No. C-93-1361 EFL, 1995 WL 251422, at *3 (N.D. Cal. 1995) (applying Hewitt and

25 concluding that language of state regulation governing state prisons and jail policy and procedure

26 created protected liberty interest in freedom from administrative segregation in county jail).

27

The Court finds that the state regulation at issue does not create a liberty interest because it

28 “does not require, in explicitly mandatory language, that if substantive predicates are met, a 41

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1 particular outcome must follow.” Abenth, 1999 WL 118003, at *2 (citing Smith v. Noonan, 992

2 F.2d 987, 989 (9th Cir. 1993)). In Smith, the court held that a provision that merely raises

3 procedural requirements for placement into administrative segregation without predicates leading

4 to a required result does not create a liberty interest for an inmate. 992 F.2d at 989 (internal

5 citations omitted). Here, the regulation at issue provides that a jail “shall develop” procedures for

6 administrative segregation, but there is no requirement for action after those procedures are

7 created. In other words, there is a predicate, but no required result. In contrast, in Toussaint v.

8 McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986), the state regulation governing state prisons in

9 California had both predicates: regulations creating the procedure by which an inmate is moved to

10 administrative segregation and the required result, with mandated release that “shall occur at the

11 earliest possible time[.]” Id. at 1097-98.

12

2. Substantive Due Process.

13

The second question is whether the denial of placement in the general population violates

14 substantive due process under Bell v. Wolfish. The Court finds that that placement in

15 administrative segregation for non-disciplinary reasons is not “punishment” in violation of the

16 substantive due process prong. The due process clause, as noted above, creates a protectible

17 interest for pretrial detainees to be free of punishment. Thus, the question is whether placement in

18 administrative segregation as opposed to placement in the general population is punishment that is

19 not allowed under Bell v. Wolfish. As noted above, under Bell v. Wolfish, a court must first

20 examine whether the restriction at issue is intended to be punishment. 441 U.S. at 538. Here, the

21 undisputed evidence is that Defendants placed some Plaintiffs in administrative segregation

22 because of safety concerns and not because of disciplinary concerns. The next question is whether

23 the restriction is “excessive in relation to the alternative purpose assigned” to it. Id. If the

24 condition is “reasonably related to a legitimate nonpunitive objective,” it is not punishment. Id.

25 Maintaining the safety of the jail and effectively managing the facility are legitimate, non-punitive

26 goals. Id. at 539-40. Here, the goal of administrative segregation – separate from disciplinary

27 lockdown – is to ensure the safety of the inmates for a variety of reasons. For this reason,

28 placement in administrative segregation for non-disciplinary reasons does not constitute 42

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1 punishment under Bell v. Wolfish.

2

Separately, although Plaintiffs do not make this argument, the Court considers whether

3 placement in administrative segregation for a long period of time without the opportunity to

4 contest it is “punishment” for pretrial detainees. One aspect is the temporal nature of the

5 limitation. Valdez, 302 F.3d at 1047 (internal citations omitted) (denial of telephone privileges for

6 pretrial detainee did not violate substantive due process partially because the denial was in place

7 for only a “short time” and existed “only as long as it serves its state purpose.”) The Court here

8 finds that the placement in administrative segregation can be lengthy, but there is not sufficient

9 evidence to determine whether the placement is too long for its purpose. Although the inmates

10 complain that they wish to be released from administrative segregation into the general population,

11 they provide no evidence about whether the conditions of their placement have changed.19

12

3. Procedural and Substantive Due Process for Lack of Access to

13

Programs, Mental Health Treatment, and Same Amount of Exercise as

General Population.

14

Plaintiffs also demand access to the same “programs” as the inmates in the general

15 population and mental health treatment for inmates who move from administrative segregation to

16 the general population. However, Plaintiffs fail to provide any evidence about the programs or

17 show that they have a due process right to access programs. And Plaintiffs fails to provide

18 evidence that they sought mental health treatment upon return to the general population but that

19 they were denied mental health treatment. Thus, Plaintiffs do not meet their burden to show

20 probability of success on the merits based on their demands regarding lack of access to programs

21 and lack of access to mental health treatment upon return to the general population.

22

Plaintiffs also demand that inmates in administrative segregation receive the same amount

23 of exercise that inmates in the general population receive. The undisputed facts show that inmates

24

25

26

19 Plaintiffs also complain that they do not know why they have been placed into administrative segregation. Defendants have provided reasons for some in responding to this

27

motion, but Plaintiffs will be entitled to evidence in the process of discovery to determine why Defendants placed them in administrative segregation to litigate the isuse of whether placement in

28

administrative segregation is narrowly tailored to the safety needs of the jails under the Bell v. Wolfish standard.

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1 in administrative segregation receive the same amount of exercise as inmates in the general

2 population but that the difference lies in the amount of out-of-cell exercise inmates in both groups

3 receive. To the extent that the combined amount is insufficient for inmates in administrative

4 segregation, the Court addresses that issue above.

5

C. Likelihood of Success on the Merits of Other Claims.

6

Plaintiffs focus their arguments regarding the likelihood of success on the merits for their

7 motion for preliminary injunction on the Eighth and Fourteenth Amendment but ignore the claims

8 they assert under state law. The Court considers some of those state law claims below in

9 analyzing the motion to dismiss and dismisses several claims. To the extent that the Court

10 dismisses state law claims below, the Court also finds that Plaintiffs fail to establish the likelihood

11 of success on the merits of those claims. Thus the Court addresses only the surviving claims for

12 violations of Articles I, Sections 7 and 17 of the California Constitution here in analyzing the

13 likelihood of success on the merits.

14

Article I, Section 7 provides in relevant part: “A person may not be deprived of life,

15 liberty, or property without due process of law[.]” Plaintiffs allege that they have a liberty

16 interest, but it is not clear what that liberty interest is. Plaintiffs allege: “Incarceration without

17 any access to sunlight, sunshine, outdoor exercise, and in other situations total lacking of outdoor

18 air, coupled with isolation and confinement in excess of 23 hours a day, imposes an atypical,

19 substantial, and different hardship on the prisoner in relation to the ordinary incidents of

20 incarcerated life, so as to create a liberty interest protected by due process.” (Dkt. 1 (Complaint ¶

21 77).) Article I, Section 17 provides: “Cruel or unusual punishment may not be inflicted or

22 excessive fines imposed.” Plaintiffs allege that they are suffering from cruel and unusual

23 punishment from “total denial of access to sunlight and sunshine, denial even to natural daylight,

24 and isolation form the outdoors.” (Id. at ¶ 81.)

25

California courts give “respectful consideration” to the United States Supreme Court’s

26 interpretation of parallel texts. People v. Buza, 4 Cal. 5th 658, 684-685 (2018). However, the

27 California Constitution “is, and has always been, ‘a document of independent force.’” Id. at 684

28 (citing American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 325 (1997)). For example, 44

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1 one notable area in which California Constitutional law provides broader protection to California

2 residents than the U.S. Constitution does is the area of privacy. American Academy of Pediatrics

3 v. Lungren, 16 Cal. 4th at 325-326 (internal citations omitted).

4

The only cases addressing the right to due process under the California Constitution for

5 placement in administrative segregation do so under the law as it existed in 1979 and 1982 and

6 cite to federal law that has since evolved. See, e.g., In re Davis, 25 Cal. 3d 384 (1979); Inmates of

7 Sybil Brand Inst. for Women v. Cty. of Los Angeles, 130 Cal. App. 3d 89 (1982). In Davis, the

8 California Supreme Court addressed the issue of a right to a hearing for an inmate who is charged

9 but awaiting a disciplinary hearing and found that they were entitled to a hearing “on their

10 administrative segregation before the disciplinary hearing.” 25 Cal. 3d at 389.

11

In Sybil Brand, the court held that pretrial detainees who were assigned to “administrative

12 segregation” because of “combative or erratic behavior” were entitled to a hearing, written notice,

13 and an opportunity to challenge the placement. 130 Cal. App. 3d at 106-08. The court also held

14 that outdoor recreation, twice a week, for a total of four hours, did not constitute cruel and unusual

15 punishment. Id. at 105.

16

The Court was unable to find any other authority addressing the right to outdoor exercise

17 under the California Constitution.

18

Both Davis and Sybil Brand cited almost exclusively federal case law which pre-dates the

19 majority of cases cited in this Order. In addition, the facts of Sybil Brand are slightly different

20 from the facts here, as Sybil Brand addresses the issue of administrative segregation for

21 disciplinary issues, which is not disputed in this case. Given the cases above, which rely upon

22 different facts and outdated federal precedent, it is unclear how the California Supreme Court

23 would rule on the issues presented here. But it appears that the California Supreme Court follows

24 federal interpretation of the parallel texts of the U.S. Constitution. Given that, the Court here will

25 apply the same analysis above for the federal analysis to these California Constitutional claims

26 and reach the same result as above.

27

D. Irreparable Harm.

28

A plaintiff seeking a preliminary injunction must demonstrate that irreparable injury is

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1 likely in the absence of preliminary relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21

2 (2008). A mere possibility of irreparable injury is insufficient. Id. “Irreparable harm is

3 traditionally defined as harm for which there is no adequate legal remedy, such as an award of

4 damages.” Ariz. Dream Act v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (citation omitted).

5 “[A] deprivation of constitutional rights always constitutes irreparable harm.” Fyock v. City of

6 Sunnyvale, 25 F. Supp. 3d 1267, 1282 (N.D. Cal. 2014) (citing Elrod v. Burns, 427 U.S. 347, 373

7 (1976)). “[F]or some kinds of constitutional violations, irreparable harm is presumed.” Ezell v.

8 City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011) (quoting 11A Wright et al., Federal Practice

9 and Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is

10 involved, most courts hold that no further showing of irreparable injury is necessary.”)).

11 “[D]eprivation of […] constitutional rights under the Eighth Amendment is itself sufficient to

12 establish irreparable harm.” Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1193 (N.D. Cal. 2015).

13 Alleged infringement of the Fourteenth Amendment may also alone constitute irreparable harm.

14 Griffin v. Padilla, 408 F. Supp. 3d 1169, 1186 (E.D. Cal. 2019). Irreparable injury may inhere in

15 “the consequent emotional stress, depression and reduced sense of well-being” brought on by a

16 constitutional violation. Chalk v. U.S. Dist. Court Cent. Dist. of California, 840 F.2d 701, 709

17 (9th Cir. 1988). This type of physiological and psychological distress constitutes a “non-monetary

18 deprivation” that “is a substantial injury.” Id.

19

Here, Plaintiffs argue that they have suffered and are suffering violations of their Eighth

20 and Fourteenth Amendment rights. To the extent that the Court has found that they have

21 established the likelihood of success on the merits, the Court finds that they have established

22 irreparable harm.

23

E. Balance of the Hardships.

24

The Court finds that the balance of the hardships weighs in favor of Plaintiffs for the

25 claims on which they can prove likelihood of success on the merits: those of inmates in

26 administrative segregation who are confined to their cells for 23 ½ hours a day and pretrial

27 detainees who have been denied access to direct sunlight for more than four years.

28

The City and County of San Francisco argues that requiring more exercise time would be

46

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1 burdensome on the City and County of San Francisco. However, Courts have made clear that

2 practical difficulties that arise justify only an occasional and brief deprivation of exercise outside.

3 Allen, 48 F. 3d at 1088. The Court must consider concerns about security and costs, but those are

4 not the overwhelming concerns. Wright v. Rushen, 642 F.2d at 1134 (court must consider

5 concerns about remedial measures that might impair security and cost too much); Spain, 600 F.2 at

6 199 (cost or inconvenience generally not an excuse). These generalized concerns about security

7 and cost are not sufficient to tip the balance in favor of the City and County of San Francisco.

8 Although there will be increased costs, the Court here orders relief for a narrow population of

9 inmates. Moreover, Defendants have provided no information about the specific costs and

10 concerns about security at issue. This is similar to Pierce, where the “county has provided nothing

11 more to justify this almost complete denial of exercise than a generalized reference to institutional

12 security concerns” and has “made no showing that such a severe restriction is reasonably related to

13 satisfying those concerns.” Id. at 1212-13.

14

F. Public Interest.

15

“[I]t is always in the public interest to prevent the violation of a party’s constitutional

16 rights.” Melenderes v. Arpaio, 695 F.3d 900, 1002 (9th Cir. 2012). Further, “there is the highest

17 public interest in the due observance of all the constitutional guarantees.” U.S. v. Raines, 362 U.S.

18 17, 27 (1960). That public interest extends to ensuring constitutionally appropriate treatment of

19 inmates. See McNearney v. Washington Dept. of Corrections, 2012 WL 3545267, at *12 (W.D.

20 Wash. Jun. 15, 2012); Norsworthy, 87 F. Supp. 3d at 1194.

21

G. Injunctive Relief.

22

After balancing the four factors, the Court finds that the balance of equities tips in favor of

23 an injunction on limited grounds. The Court follows the ruling in Spain, where the Ninth Circuit

24 ordered that the prison allow outdoor exercise one hour a day, five days a week for inmates who

25 were assigned to the AC “for a period of years.” 600 F.2d at 199. The Court ORDERS that the

26 City and County of San Francisco provide inmates in administrative segregation in County Jails 4

27 and 5 exercise in the gym for at least one hour a day, five days a week, unless there are

28 disciplinary reasons or other emergency situations that prevent compliance. The Court ORDERS 47

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1 the City and County of San Francisco provide any pretrial detainee who had been confined for

2 more than four years access to direct sunlight for at least one hour a week, again unless there are

3 disciplinary reasons or other emergency situations that prevent compliance.

4

Defendants argue that the Court must issue relief that is narrowly tailored to comply with

5 18 U.S.C. § 3626. The relief that the Court orders here is narrowly tailored to address the specific

6 subgroups of inmates who do not receive a sufficient amount of combined time out of cell or in

7 the gym.

8

IV. MOTION TO DISMISS ANALYSIS.

9

Plaintiffs bring claims as to all Defendants pursuant to the Eighth Amendment to the

10 United States Constitution; the Fourteenth Amendment to the United States Constitution; Article I,

11 section 7 of the California Constitution; Article I, section 17 of the California Constitution;

12 common law negligence; and common law intentional infliction of emotional distress. (Dkt. 1.)

13 Defendants make various arguments that each of these claims should be dismissed. The Court

14 addresses each claim, as well as certain issues that dispose of claims as to certain Defendants,

15 below.

16

Defendants bring their motion to dismiss for failure to state a claim pursuant to Federal

17 Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) authorizes a motion to dismiss where the

18 pleadings fail to state a claim upon which relief can be granted. When considering a motion to

19 dismiss under Rule 12(b)(6), the Court construes the allegations in the complaint in the light most

20 favorable to the non-moving party and takes as true all material allegations in the complaint.

21 Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard

22 of Rule 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

23 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

24 action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v.

25 Allain, 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a

26 claim to relief that is plausible on its face.” Id. at 570.

27

“The plausibility standard is not akin to a probability requirement, but it asks for more than

28 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 48

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1 are merely consistent with a defendant’s liability, it stops short of the line between possibility and

2 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

3 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to

4 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g.,

5 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N.

6 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).

7

Here, because the motions for preliminary injunction and to dismiss were filed almost at

8 the same time, the evidence disclosed in the process of litigating the preliminary injunction

9 revealed that some of the allegations of the Complaint are inaccurate. However, to the extent that

10 the Court considers the motion to dismiss, the Court accepts as true the allegations of the

11 Complaint.

12

A. San Francisco Sheriff’s Department as Defendant.

13

Because the San Francisco Sheriff’s Department is not a separate entity from the City and

14 County of San Francisco, the Court GRANTS the motion to dismiss it from this action. The Ninth

15 Circuit has held that a sheriff’s department is appropriately dismissed from a complaint when the

16 department “is, in fact, a non-jural entity,” “that is, it lack[s] separate legal status from the County

17 and therefore was incapable of suing or being sued in its own name.” Melendres v. Arpaio, 784

18 F.3d 1254, 1260 (2015) (relying on Arizona state court holding that sheriff’s department at issue

19 was non-jural entity). There is no California state court precedent directly holding that the San

20 Francisco Sheriff’s Department is a non-jural entity. However, courts in the Northern District of

21 California have recognized that the San Francisco Sheriff’s Department is not a separate legal

22 entity from the City and County of San Francisco and dismissed claims against it on that basis.

23 See, e.g., Bertone v. City and Cnty. of San Francisco, et al., 2012 WL 1947100, at *1 n.1 (N.D.

24 Cal. May 30, 2012) (sheriff’s department “not separate legal entit[y] and [is] operated by the City

25 and County of San Francisco); Saunders v. Garay, et al., 2014 WL 4386727, at *3 n.4 (N.D. Cal.

26 Sept. 4, 2014) (“The San Francisco Sheriff’s Department is not a separate legal entity from the

27 City and County of San Francisco.”). Because the City and County of San Francisco operate the

28 San Francisco Sheriff’s Department, the Court considers that allowing suit against it in this case 49

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1 would be superfluous, as the City and County of San Francisco is a defendant. The Court

2 therefore DISMISSES all claims against the San Francisco Sheriff’s Department WITH

3 PREJUDICE.

4

B. Eighth Amendment Claims.

5

Defendants argue that Plaintiffs’ claims under the Eighth Amendment should be dismissed

6 as to each Plaintiff who is a pretrial detainee. (Dkt. 37.) The Court agrees. The Eighth

7 Amendment protection against cruel and unusual punishment applies only to inmates who have

8 been tried and convicted. Ingraham v. Wright, 430 U.S. 651, 669-70 (1977). As noted above, the

9 standards of the Eighth Amendment are instructive in analyzing the Fourteenth Amendment,

10 which is the applicable clause for pretrial detainees. Here, all of the Plaintiffs except Carlos are

11 pretrial detainees. (Dkt. 1 ¶ 60.) Carlos may therefore maintain an Eighth Amendment claim.20

12 The remainder of the Plaintiffs may maintain their Fourteenth Amendment claims, but not their

13 Eighth Amendment claims. At oral argument, Plaintiffs’ counsel indicated that the Eighth

14 Amendment claims were brought to preserve them in the event that any of the Plaintiffs’ status

15 changed from pretrial to post-trial pending the adjudication of this matter. Such advance

16 preservation is not necessary. Federal Rule of Civil Procedure 15 allows the Court to grant a party

17 leave to amend a pleading “freely” “when justice so requires.” As the Court made clear at oral

18 argument, it will permit amendment of the Complaint in the event that the status of any of the

19 Plaintiffs changes. Defendants further indicate that they would not object to such amendment.

20 (Dkt. 51.) Discovery would likely be the same for both claims, so there is no practical effect on

21 the conduct of the litigation by dismissing the Eighth Amendment claims of pretrial detainees.

22 Accordingly, the Court DISMISSES Plaintiffs’ Eighth Amendment claims as to all Plaintiffs

23 except Carlos WITHOUT PREJUDICE.

24

C. Eighth and Fourteenth Amendment Claims against Individual Defendants.

25

Defendants argue that the Plaintiffs have not stated valid claims under the Eighth and

26

27

20 As stated above in the discussion of the motion for a preliminary injunction, Carlos was a pretrial detainee from his arrest in July 2011 until his conviction in September 2018. He

28

therefore retains a historical claim for damages under the Fourteenth Amendment alongside his Eighth Amendment claim, but has no claim for injunctive relief under the Fourteenth Amendment.

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1 Fourteenth Amendments as to the individual Defendants because they can claim the defense of

2 qualified immunity. The Court agrees and concludes that qualified immunity requires dismissal of

3 both the Eighth and Fourteenth Amendment claims against the individual Defendants.

4

The assertion of qualified immunity requires the reviewing court to address two questions:

5 whether, taken in the light most favorable to the party asserting the injury, the facts alleged show

6 that the officers’ conduct violated a constitutional right and whether the right at issue was clearly

7 established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). This is

8 not a rigid inquiry, and the second question may be addressed before the first, particularly in cases

9 still subject to factual development. Pearson v. Callahan, 555 U.S. 223, 239 (2009); Henderson v.

10 City and Cnty. of San Francisco, No. C-05-234 VRW, 2006 WL 3507944 (N.D. Cal. Dec. 1,

11 2006) (“If the court finds a material factual dispute whether a constitutional violation has

12 occurred, then the court determines whether the right infringed was clearly established at the time

13 of the alleged violation.”) (citing Wilson v. Layne, 526 U.S. 603 (1999)). “‘[W]hether an official

14 protected by qualified immunity may be held personally liable for an allegedly unlawful official

15 action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the

16 legal rules that were ‘clearly established’ at the time it was taken.’” Messerschmidt v. Millender,

17 565 U.S. 535, 546 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation

18 omitted)). Thus, if an official could reasonably have believed she was complying with established

19 law at the time of the violation, qualified immunity may be appropriate even where a

20 constitutional right was violated. Id.

21

The Supreme Court has repeatedly, and recently, “reiterate[d] the longstanding principal

22 that ‘clearly established law’ should not be defined at a high level of generality.” White v. Pauly,

23 137 S. Ct. 548, 552 (2017); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (the Supreme

24 Court has repeatedly told courts, “and the Ninth Circuit in particular” about this rule). Instead,

25 “the clearly established law must be ‘particularized’ to the facts of the case.” White, 137 S. Ct. at

26 552 (quoting Anderson, 483 U.S. at 640). “Except in the rare case of an ‘obvious’ instance of

27 constitutional misconduct . . . [p]laintiffs must identify a case where an officer acting under similar

28 circumstances as defendants was held to have violated the Fourth Amendment.” Sharp v. Cty. of 51

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1 Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (internal brackets omitted). “In

2 the absence of ‘a case directly on point,’ [courts] compare ‘specific factors’ relevant to the

3 excessive force inquiry to determine whether a reasonable officer would have known that the

4 conduct in question was unlawful.” Isayeva v. Sacramento Sheriff’s Dept., 872 F.3d 938, 947 (9th

5 Cir. 2017).

6

The Court has found, as noted above, that Plaintiffs are unlikely to prevail on their claim

7 that denial of outdoor exercise violates their Eighth and Fourteenth Amendment rights, with the

8 exception for inmates held in custody longer than four years. In addition, the Court has found that

9 limiting the amount of exercise, even indoors, of 180 minutes per week for inmates in

10 administrative segregation in County Jail 4 violates their Constitutional rights because of the lack

11 of out-of-cell time.

12

Thus, in analyzing the right to outdoor exercise, there is no clear and binding precedent in

13 the Ninth Circuit establishing that the denial of outdoor exercise for inmates in custody over four

14 years violates the Constitution. Spain, 600 F.2d at 199; Shorter v. Baca, 895 F.3d at 1185. The

15 ruling in Allen appeared to create a bright line rule, 48 F.3d at 1088, but, as noted above, the Court

16 in Norwood, applying the doctrine of qualified immunity, granted summary judgment to

17 individual defendants who had denied plaintiffs the right to outdoor exercise and held that Allen

18 did not recognize an absolute right to outdoor exercise. Id. at 1068. There is no case in which the

19 court found that a lack of outdoor exercise is unconstitutional when exercise is offered in other

20 ways. The case law cited above is not clear, as outlined by the summary of cases addressing this

21 issue. And even in determining the amount of exercise, without even considering the issue of

22 outdoor exercise, Pierce specifically held that there is no specific amount of exercise necessary.

23 526 F.3d at 1212.

24

Given that the facts of this case are not similar to any of the cases cited above in which

25 courts found a constitutional violation for denial of outdoor exercise, the Court must apply the

26 doctrine of qualified immunity and grant summary judgment to the individual defendants. The

27 key differences between this case and the cases cited above are the length of time the inmates

28 spend in their cells, the amount of time they have to exercise, their access to sunlight – even if not 52

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1 direct sunlight – and their access to fresh air. Even if the Court ultimately finds a constitutional

2 violation in its consideration of the merits of this case, the Court concludes that the right at issue

3 was not clearly established at the time of the violations alleged by Plaintiffs. The cases show an

4 acknowledgement of the importance of outdoor recreation but not a constitutional entitlement to

5 such recreation that would have been clear to a reasonable officer at the time of the violations

6 alleged here under the standard set forth in Saucier.

7

Whether the individual defendants are entitled to qualified immunity against the claim by

8 inmates in administrative segregation is a closer call. As noted above, both the inmates in

9 administrative segregation here and inmates in Spain were confined to their cells for 23 ½ hours a

10 day. The only difference is that, in Spain, the inmates were only allowed to exercise in the

11 corridors, but the inmates in administrative segregation here are allowed time to exercise in the

12 larger gym with windows. Pierce is closer to the facts of this case, but in Pierce, the court found

13 that 90 minutes of exercise per week was not sufficient where pretrial detainees were held in

14 county jail for an average of 110 days (and an average of 312 days for “third strike offenders).

15 526 F.3d at 1212. Here, inmates in both County Jails 4 and 5 have more exercise than inmates in

16 Pierce did (180 minutes of exercise per week in County Jail 4 and 210 minutes of exercise per

17 week in County Jail 5). In addition, there are no cases finding that amount of exercise in a gym

18 (even if indoors) insufficient under the Eighth or Fourteenth Amendments. The facts of Pierce

19 and other cases are not sufficiently similar to the facts of this case to put reasonable officials on

20 notice that their actions in limiting the amount of out-of-cell time and exercise time for inmates in

21 administrative segregation for non-disciplinary reasons violated the Fourteenth Amendment.

22

Accordingly, the individual Defendants are entitled to qualified immunity. The Court

23 DISMISSES all claims for violation of the Eighth and Fourteenth Amendments against individual

24 Defendants WITH PREJUDICE.

25

D. California Constitutional Claims.

26

Plaintiffs bring claims for relief under sections 7 and 17 of Article I of the California

27 constitution. (Dkt. 1 ¶ 76-82.) As cited above, Article I, Section 7 provides for due process of

28 law, and Article I, Section 17 prohibits cruel or unusual punishment. Plaintiffs allege that the 53

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1 conditions of their confinement, with no access to sunlight, “outdoor air,” or outdoor exercise, and

2 with confinement to their cells over 23 hours per day violates their due process rights. (Dkt. 1, ¶¶

3 77-78.) Plaintiffs allege that they are suffering from cruel and unusual punishment from “total

4 denial of access to sunlight and sunshine, denial even to natural daylight, and isolation from the

5 outdoors.” (Dkt. 1, ¶ 81.) In addition, Plaintiffs claim that confinement to their cells for 23 ½

6 hours a day is cruel and unusual punishment. (Dkt. 1, ¶ 81.)

7

“It is well established that the California constitution does not create a “constitutional tort

8 cause of action for damages to remedy an asserted violation of the due process ‘liberty’ interest

9 under article I, section 7(a).” Katzberg v. Regents of Univ. of California, 29 Cal. 4th 300, 326

10 (2002). Similarly, there is no private right of action for damages for violation of article I, section

11 17 of the California constitution, which prohibits cruel and unusual punishment. Giraldo v. Dept.

12 of Corrections & Rehabilitation, 168 Cal. App. 4th 231, 253-57 (2008). However, despite the

13 prohibition on actions for damages, a party may still seek equitable relief for violations of sections

14 7 and 17 of the California constitution. See 29 Cal. 4th at 307 (“it is also clear that, like many

15 other constitutional provisions, this section supports an action, brought by a private plaintiff

16 against a proper defendant, for declaratory relief or injunction”); 168 Cal. App. 4th at 257 (finding

17 section 17 supports a private action for injunctive relief). Plaintiffs therefore have properly sought

18 injunctive relief under these provisions here. At oral argument, Plaintiffs conceded that their

19 claims under the California Constitution are limited to injunctive relief. To the extent that the

20 Complaint seeks damages for violation of the California Constitution, the Court DISMISSES that

21 claim for relief WITH PREJUDICE.

22

Because qualified immunity is a creature of federal law, it does not shield the individual

23 Defendants from Plaintiffs’ state constitutional claims. The Court was unable to find case law

24 suggesting that individual Defendants could not be enjoined for California constitutional

25 violations, and neither party cited any case supporting or opposing the issue of liability of

26 individual Defendants for injunctive relief under the California Constitution. However, because

27 there might be a mismatch between certain individual Defendants’ actual authority and the issues

28 presented in this case, that injunctive relief against those defendants would be inappropriate. For 54

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1 example, it would be meaningless to order that an undersheriff alter the conditions of confinement

2 for certain inmates if that person lacks the authority to make policy changes dictating conditions of

3 confinement. It further seems that, even to the extent an individual defendant could affect policy,

4 claims for injunctive relief could only be brought against such a person in her official, rather than

5 personal, capacity. Accordingly, the Court concludes that a claim under the California

6 Constitution against Defendant Sheriff Hennessey in her official capacity may be maintained

7 because she has policymaking authority over the conditions of confinement at issue here; the

8 Court DENIES the motion to dismiss the claims under the California Constitution against

9 Defendant Sheriff Hennessey in her official capacity.21 However, the Court DISMISSES WITH

10 PREJUDICE the claims under the California Constitution against Sheriff Hennessey in her

11 individual capacity. Similarly, the Court DISMISSES WITH LEAVE TO AMEND any claim for

12 negligence and emotional distress against Defendants Captain Jason Jackson, Captain Kevin

13 McConnell, and Chief Deputy Sheriff Paul Miyamoto, either in their individual or official

14 capacities. Plaintiffs must plead that the individual Defendants have the ability to provide the

15 requested relief.

16

E. Common Law Claims Against City and County of San Francisco.

17

Defendants argue that immunities created by the California Government Code preclude

18 Plaintiffs’ common law claims for negligence and intentional infliction of emotional distress. The

19 Court agrees. California Government Code section 844.6 provides that “a public entity is not

20 liable for […] an injury to any prisoner.” Under this provision, “public entities […] are immune

21 from liability for […] intentional infliction of emotional distress and negligence.” Wright v. State

22 of California, 122 Cal. App. 4th 659, 672 (2004). Plaintiffs’ claims against the City and County

23 of San Francisco for intentional infliction of emotional distress and negligence therefore fail.

24 Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ claims against the City and

25 County of San Francisco for intentional infliction of emotional distress and negligence.

26

27

21 Hennessy has indicated publicly that she will not run for re-election. Therefore, when

28

her position ends, the Court will dismiss her as a defendant in her official capacity and will entertain a motion from Plaintiffs to substitute the new Sheriff.

55

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1

F. Common Law Claims Against Individual Defendants.

2

Similarly, California Government Code section 820.6 provides that “[i]f a public employee

3 acts in good faith, without malice, and under the apparent authority of an enactment that is

4 unconstitutional, invalid or inapplicable, he is not liable for any injury cause thereby.” “Under

5 section 820.6, ‘good faith’ reflects a subjective intention to act under the authority of the

6 governing enactment, and to enforce or comply with those rules.” O’Toole v. Superior Court, 140

7 Cal. App. 4th 488, 505 (2006). As such, good faith does not require a public officer “to second-

8 guess […] policy by engaging in a constitutional analysis to predict whether a court will uphold

9 the public entity’s” decisionmaking. Id. at 507.

10

Here, Plaintiffs allege, in the claim for negligence, that Defendants have a legal duty not to

11 violate their constitutional rights, including the right not to be subject to cruel and unusual

12 punishment, and to be deprived of out-of-cell time. (Dkt. 1, ¶ 85.) Plaintiffs further allege that

13 Defendants violated their duties to Plaintiffs by denying them access to the outdoors and by

14 confining them to cells for 23 hours a day. (Dkt. 1, ¶ 86.) In the claim for intentional infliction of

15 emotional distress, Plaintiffs claim that Defendants’ “conduct in adopting a [sic], policies,

16 customer, and practices of incarcerating inmates where they are completely denied all access to

17 outdoor recreation, to outdoor light, sunshine and sunlight,” and confinement to cells for 23 hours

18 a day, is “extreme and outrageous conduct” causing emotional distress. (Dkt. 1, ¶ 90.) Plaintiffs

19 fail to allege facts showing malicious intent. Therefore, Plaintiffs’ claims against the individual

20 officer Defendants for intentional infliction of emotional distress and negligence also fail. The

21 Court DISMISSES WITH LEAVE TO AMEND any claim for negligence or emotional distress

22 against the individual defendants. Plaintiff must plead facts showing both that their actions arose

23 out of malice.

24

G. Prison Litigation Reform Act.

25

Finally, Defendants proffer that the Prison Litigation Reform Act (“PLRA”) precludes

26 Plaintiffs’ federal claims for relief because Plaintiffs have not sufficiently established physical

27 harm from Defendants’ course of conduct. Plaintiffs’ ability to prove physical harm goes squarely

28 to the merits of this case. Here, Plaintiffs allege significant, if not severe, physical injury resulting 56

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1 from their lack of ordinary exposure to sunlight. (Dkt. 1.) On a motion to dismiss, the Court takes

2 these factual allegations as true. Sanders, 794 F.2d at 481. Defendants’ argument that the PLRA

3 bars Plaintiffs’ federal claims is without merit. The Court DENIES the motion to dismiss based

4 on this argument.

5

V. CONCLUSION.

6

In summary, the Court finds that confining inmates in County Jail 4 who are in

7 administrative segregation and confined to their cells for 23 ½ hours a day violates the more

8 stringent standard of the Eighth Amendment and thus violates the Fourteenth Amendment. The

9 Court finds that inmates in the general population in both County Jails 4 and 5 and in

10 administrative segregation in County Jail 5 receive an adequate amount of exercise and access to

11 day rooms to satisfy the Eighth Amendment. The Court finds that the temporary denial of any

12 exercise to inmate in disciplinary lockdown does not violate the Eighth or Fourteenth

13 Amendments. The Court declines to rule that an inmate generally has the right of access to direct

14 sunlight, but the Court finds that depriving a pretrial detainee of lack of access to direct sunlight

15 for more than four years constitutes punishment. The Court finds that inmates in administrative

16 segregation for non-disciplinary reasons do not have a procedural or substantive due process right

17 to a hearing and written notice for the reasons for their placement.

18

Thus, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion for a

19 preliminary injunction.

20

The Court GRANTS the motion to dismiss and DISMISSES WITH PREJUDICE claims

21 against the San Francisco Sheriff’s Department, Eighth Amendment claims asserted by all

22 Plaintiffs except for Armando Carlos, Eighth and Fourteenth Amendment claims against all

23 individual Defendants, claims for damages under the California Constitution, claims against

24 Sheriff Hennessey for violation of the California Constitution in her individual capacity, and

25 common law claims against the City and County of San Francisco.

26 / / /

27 / / /

28 / / / 57

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1

The Court GRANTS the motion to dismiss and DISMISSES WITH LEAVE TO AMEND

2 the claims for violation of the California Constitution against the individual Defendants and

3 common law claims against the individual Defendants.

4

IT IS SO ORDERED.

5 Dated: January 31, 2020

6

______________________________________

SALLIE KIM

7

United States Magistrate Judge

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United States District Court Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENYON NORBERT, et al.,

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Plaintiffs,

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v.

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SAN FRANCISCO SHERIFF'S

DEPARTMENT, et al., 11

Defendants.

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Case No. 19-cv-02724-SK
STIPULATION AND ORDER FOR PARTIAL STAY OF INJUNCTION AND STAY OF APPEAL
Regarding Docket No. 137

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STIPULATION

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WHEREAS the Court issued a preliminary injunction requiring that the City and County of

15 San Francisco (“City”) provide (1) one hour a day, five days a week, of recreation time for

16 inmates in administrative segregation, except under certain circumstances; and (2) one hour per

17 week of “direct sunshine” for inmates housed in the jail for more than four consecutive years (ECF

18 No. 110);

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WHEREAS the City is currently complying with the portions of the preliminary injunction

20 requiring one hour a day, five days a week, of recreation time for inmates in administrative

21 segregation;

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WHEREAS the City has moved for a stay and filed a notice of appeal with regard to the

23 portion of the injunction requiring access to direct sunlight (ECF No. 128);

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WHEREAS without a stipulated stay, the City must move forward with its motion to stay

25 and appeal to ensure that the City does not become in violation of the Court’s injunction order;

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WHEREAS both parties are working towards a settlement of this matter, and require time

27 to assess, negotiate and seek approval of the terms any settlement;

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Case 3:19-cv-02724-SK Document 138 Filed 03/11/20 Page 2 of 5

United States District Court Northern District of California

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WHEREAS the parties agree that a short stay of the “direct sunlight” portion of the Court’s

2 injunction order will allow the parties to explore a settlement without undue expenditure of time

3 and resources;

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WHEREAS the Court has ordered that plaintiffs submit a proposed form of consent for

5 blood draws from named plaintiffs to the City by March 6, 2020, and that the parties submit either

6 an agreed form or competing forms to the Court by March 17, 2020 (ECF No. 124);

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WHEREAS a settlement of this matter may address the issues raised by the Court’s order

8 regarding the consent forms and may address plaintiffs’ request for medical screening;

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WHEREAS the parties are also negotiating a settlement of the matter entitled Poot v. City

10 and County of San Francisco, Case No. 19-cv-02722-YGR, which also addresses jail conditions;

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WHEREAS the City intends to maintain the sleep schedule set forth in the City’s

12 mediation statement served on plaintiffs on February 20, 2020; and agrees that while the stay is

13 pending the City will inform plaintiffs’ counsel of any intent to change that schedule;

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WHEREAS the City intends to continue complying with the Court order requiring one

15 hour a day, five days a week, of recreation time for inmates in administrative segregation;

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WHEREAS the parties agree that their ongoing settlement discussions constitute good

17 cause and substantial need to seek an extension of time to file an appeal;

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NOW THEREFORE THE PARTIES STIPULATE as follows:

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1. The City’s motion for stay shall be continued for approximately a month and a half to

20 May 18, 2020.

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2. Plaintiffs opposition shall be due on April 24, 2020, and defendants’ reply shall be due

22 on May 8, 2020.

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3. The parties shall jointly request that the Court of Appeal continue all briefing deadlines

24 for 90 days, including the briefing schedule for plaintiffs’ cross-appeal if plaintiffs should choose

25 to initiate one.

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4. The portion of the District Court’s injunction requiring that the City provide inmates

27 who have been housed continuously in the County Jail for more than four years with access to

28 “direct sunlight” shall be stayed until the court rules on defendants’ motion for stay. 2

Case 3:19-cv-02724-SK Document 138 Filed 03/11/20 Page 3 of 5

United States District Court Northern District of California

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5. The parties request that the Court continue its deadline to submit proposed consent

2 forms for blood tests for approximately one month and a half. Plaintiffs must provide to

3 defendants a proposed consent form for the blood draw by April 24, 2020. Defendants must

4 provide their proposed form of consent for the blood draw by May 1, 2020. If the parties agree to

5 the form, it can be submitted by May 5, 2020 to the Court. If the parties do not agree to the form,

6 they may submit competing proposals with a two-page letter of explanation to the Court by May 5,

7 2020.

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6. If either party determines that settlement discussions have irretrievably broken down,

9 said party shall so inform the Court.

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7. If the Board of Supervisors rejects any proposed settlement, the City shall so inform the

11 Court, and request a Case Management Conference as soon as possible.

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SO STIPULATED.

13 Dated: March 11, 2020 14 15 16 17 18 19

DENNIS J. HERRERA City Attorney MEREDITH B. OSBORN Chief Trial Deputy SABRINA M. BERDUX MARGARET W. BAUMGARTNER KAITLYN MURPHY Deputy City Attorneys

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By: /s/ Margaret W. Baumgartner

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MARGARET W. BAUMGARTNER

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Attorneys for Defendants

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CITY AND COUNTY OF SAN FRANCISCO et al.

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Case 3:19-cv-02724-SK Document 138 Filed 03/11/20 Page 4 of 5

United States District Court Northern District of California

Dated: March 10, 2020 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: **/s/ Yolanda Huang YOLANDA HUANG Attorneys for Plaintiffs **Pursuant to Civil L.R. 5-1(i)(3), the electronic signatory has obtained approval from this signatory
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Case 3:19-cv-02724-SK Document 138 Filed 03/11/20 Page 5 of 5

United States District Court Northern District of California

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED:

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1. The City’s motion for stay shall be continued for approximately a month and a half to

4 May 18, 2020.

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2. Plaintiffs opposition shall be due on April 24, 2020, and defendants’ reply shall be due

6 on May 8, 2020.

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3. The parties shall jointly request that the Court of Appeal continue all briefing deadlines

8 for 90 days, including the briefing schedule for plaintiffs’ cross-appeal if plaintiffs should choose

9 to initiate one.

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4. The portion of the District Court’s injunction requiring that the City provide inmates

11 who have been housed continuously in the County Jail for more than four years with access to

12 “direct sunlight” shall be stayed until the court rules on defendants’ motion for stay.

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5. The deadline to submit proposed consent forms for blood tests is continued for

14 approximately one month and a half. Plaintiffs must provide to defendants a proposed consent

15 form for the blood draw by April 24, 2020. Defendants must provide their proposed form of

16 consent for the blood draw by May 1, 2020. If the parties agree to the form, it can be submitted

17 by May 5, 2020 to the Court. If the parties do not agree to the form, they may submit competing

18 proposals with a two-page letter of explanation to the Court by May 5, 2020.

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6. If either party determines that settlement discussions have irretrievably broken down,

20 said party shall so inform the Court.

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7. If the Board of Supervisors rejects any proposed settlement, the City shall so inform the

22 Court, and request a Case Management Conference as soon as possible.

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IT IS SO ORDERED.

24 Dated: March 11, 2020

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______________________________________

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SALLIE KIM United States Magistrate Judge

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