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STATE OF CALIFORNIA COUNTY OF MONTEREY

(C.C.P. SEC. 466 & 2015.5; 28 U.S.C. SEC. 1746)

I, ()11§ ~.~u< -Jtrtl '[ha~-tft>

declare under penalty of perjury that: I am

the tr/N'r/

in the above entitled action; I have read the foregoing documents

and know the contents thereof and the same is true of my own knowledge, except as to matters

stated therein upon inforn1ation, and belief, and as to those matters, I believe they are true.

Executed this J 0 day of--'1P~U=fl/,~(_:;____ _ _ _, 20oft
Prison, Soledad, California 93960-1050.

, at Salinas Valley State

~ ~ (Signature) *rt;~' DECLARANT/PRISONER

PROOF OF SERVICE BY MAIL (C.C.P. SEC 1013(a) & 2015.5; 28 U.S.C. SEC. 1746)

I,

, am a resident of California State Prison, in the County of

Monterey, State of California; I am over the age of eighteen (18) years and am/am not a party of

the above entitled action. My state prison address is: P.O. Box 1050, Soledad, California 93960-

1050.

.

(Set forth exact title of document(s) served)
On the party(s) herein by placing a true copy(s) thereof, enclosed in sealed envelope(s), with postage thereof fully paid, in the United States Mail, in a deposit box so provided at Salinas Valley State Prison, Soledad, California 93960-1050.

(List parties served)
There is delivery service by United States Mail at the. place so addressed, and/or there is regular communication by mail between the place of mailing and the place so addressed.

I declare under penalty of perjury that the foregoing is true and correct.

DATED: _J_O_ _ _,20& f

~ ~NLI, :LJ ~ ~J1;1.#~
DECLARANT/PRISONER

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Per the parties’ stipulation, this action is dismissed with prejudice. It is so ordered.

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______________________________ Honorable Maxine M. Chesney United States District Judge

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Not. Satisfaction of Settlement & [Proposed[ Order of Dismissal With Prejudice (C 06-3581 MMC)

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OTIS MICHAEL THOMAS,



Plaintiff-Appellant,

v.



G. PONDER; M. J. K IRCHER; M. S.

EVANS,

 Defendants-Appellees.

No. 09-15522
D.C. No. 3:06-cv-03581-
MMC
OPINION

Appeal from the United States District Court for the Northern District of California
Maxine M. Chesney, Senior United States District Judge, Presiding
Argued and Submitted April 7, 2010—Pasadena, California
Filed July 16, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt; Dissent by Judge Friedman

*The Honorable Daniel M. Friedman, United States Circuit Judge for the Federal Circuit, sitting by designation.
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THOMAS v. P ONDER COUNSEL

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Jeremy Maltby and Jonathan Wells Monson (argued), O’Melveny & Myers, LLP, Los Angeles, California; Rebecca S. Hekman (argued), UCLA School of Law Ninth Circuit Clinic, Los Angeles, California, for the plaintiff-appellant.

Edmund G. Brown, Jr., Rochelle C. East, Thomas S. Patterson, Neah Huynh (argued), Office of the California Attorney General, San Francisco, California, for the defendantsappellees.

OPINION
REINHARDT, United States Circuit Judge:
Otis Thomas brought this suit seeking to establish that prison officials (individually and collectively “prison officials”) violated his Eighth Amendment rights by denying him outdoor exercise for 13 months and 25 days while he was in a maximum security housing unit. The prison officials conditioned Thomas’s access to outdoor exercise upon his signing a “pledge form” promising that he would not engage in violence while participating in prison programs. Thomas signed contemporaneous interview forms promising to “program non-violently” but refused to sign the pledge form itself. The prison officials insisted that only the pledge form would do and continued to refuse to allow him any opportunity to exercise until he signed the form.
The district court granted summary judgment for the prison officials on Thomas’s 42 U.S.C. § 1983 claim. It concluded that the denial of out-of-cell exercise for such an extended period of time was “sufficiently serious” to constitute a valid Eighth Amendment claim, but held that Thomas failed to demonstrate that there was a genuine issue of material fact as

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to whether the prison officials had acted with “deliberate indifference.” First, it concluded that Thomas had failed to show that the prison officials believed that the risk of harm to Thomas’s health was other than “insubstantial or nonexistent.” Second, it concluded that there was insufficient evidence to establish that the prison officials acted unreasonably. The district court concluded that the prison officials’ deprivation of Thomas’s right to exercise was reasonable because of Thomas’s disciplinary history and the “genuine emergency” at the prison, and because Thomas had the opportunity to sign the pledge form at any time, and upon signing would have been permitted to exercise out-of-cell.

We agree with the district court’s conclusion that the prison officials’ denial of out-of-cell exercise for such an extended period of time was “sufficiently serious” to constitute a valid Eighth Amendment claim, but reject the district court’s other rulings. We hold that as a matter of law the serious risk to Thomas’s health posed by this extended deprivation of a basic human necessity was “obvious” to the prison officials. We also hold that a material factual issue exists as to whether the prison officials’ actions were reasonable, in light of Thomas’s limited disciplinary record, the security conditions at the prison for the last 11 of the 14 months that Thomas was deprived of exercise, and the prison officials’ willingness to allow Thomas to resume the regular course of exercise upon signing the formal pledge form. We therefore reverse the district court and remand for further proceedings.

I. BACKGROUND

A. FACTUAL BACKGROUND

Otis Thomas (“Thomas”) was a prisoner housed in Facility C at the Salinas Valley State Prison ( “SVSP”) in 2005-06. Facility C is a level IV maximum security housing unit with the SVSP. Inmates are housed in Facility C for a variety of reasons, including “a history of assaultive behavior and disci-

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plinary actions, gang-related convictions, and lengthy or life sentences.” On July 14, 2005, a Facility C inmate using a homemade knife stabbed and seriously wounded two correctional officers.1 In response, the prison officials placed the SVSP on lockdown from July 14, 2005 to September 9, 2005.2 On September 9, 2005, prison officials introduced a “modified program” allowing “non-contact visits only, suspended quarterly packages and curtailed outdoor recreation. ” Under this modified program, prisoners were deprived of all out-ofcell exercise, fed in their cells, subjected to strip searches, and, on the rare occasions that they were permitted to leave their cells, were escorted in restraints.

On October 17, 2005, the Captain of Facility C, G. Ponder, sent a memorandum to the Facility C inmates that explained what they would be required to do in order to return from the “modified” program to a “normal” program. The memorandum stated, in relevant part:

I am developing a process to help the facility work towards providing inmates that want to program without violence an opportunity to do so. The choice to program will be in the hands of each individual inmate. The first step in this process will be interviews. The next step will be your commitment to program without violence and verification of this commitment by signing that fact. The next process will involve Correctional Officers identifying inmates that have shown willingness to program and providing a list of those inmates to supervisory staff.

1Thomas was not involved with this incident, or with any other incident during this time period.
2“Lockdown” occurs when prison officials suspend activities and privileges for a portion of the prison’s population and “all but essential functions are suspended in those affected housing units or sub-facilities, e.g., yard, canteen draws, religious services, and visiting. ” 15 Cal. Admin. Code § 3000.

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Inmates that fail to act in accordance with Departmental rules and Institution procedures will result in housing and program changes. Inmates are advised that their privileges and access to programs will be curtailed until you as an individual successfully comply with this process.

Ponder’s program involved interviewing each inmate at least twice. At each interview, the interviewee was required to sign a “pledge” that he was willing to follow the proposed program without violence. Inmates whom the prison deemed “willing to program without violence” were typically returned to “normal” programming after their initial interview or signing of the pledge form. Ponder explained, in a sworn declaration, that once an inmate signed the pledge his return to normal programing was also dependent upon prison officials undertaking a review of his case to affirm that “no other factors evidence a propensity for violence.” Inmates who refused to sign the pledge, declined interviews, or were otherwise deemed to have not participated “meaningfully” in the interview process remained on “modified” program status.

In accordance with this review policy, prison officials interviewed Thomas several times between August 2005 and June 2006. Before beginning these interviews, prison officials instructed Thomas to fill out forms. Thomas answered all of the questions on these interview forms and then he and a prison official signed all of the forms. The interview forms were all identical and all included the following statement and question: “Programming on a level IV general population yard requires participation without violence. Are you willing to commit to this type of program? If no, give details? ” In response to this question Thomas wrote “Yes.” Another question was “Do you have any safety concerns? ” to which Thomas answered “No.” The question “If the facility were returned to normal program, could you program without violence on a level IV general population yard with inmates from all races/ethnics [sic] or past or present gang affiliations? ”

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also appeared on each form, and in response to this question Thomas also answered “Yes.”

After Thomas signed the forms, prison officials conducted the interviews. During the interviews, prison officials gave Thomas a pledge form and instructed him to sign. The pledge form stated:

I am currently housed within Facility ‘C’ Salinas Valley State Prison. I am also aware that this facility is on a modified program status based upon several acts of violence having occurred within the past 15 months.

By signing this document, I am advising staff that I want to participate in the program review process being implemented at this time. I am also stipulating that I want to “do my own time ” and will program by not participating in gang violence.

I have been advised that my failure to act in accordance with institutional rules and procedures may result in program and housing changes. I am aware that during the time I participate in the program review process, I will retain my established work/privilege group.

I am aware, if I am unassigned and I participate in the program review process that my participation does not constitute a credit earning assignment. Further, I understand that my privileges and access to programs will be curtailed until I successfully complete this program and am returned to normal general population program status.

I have been advised that the program review process is ongoing and that I will be expected to maintain compliance with regulations to participate. During

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the program review process I will be required to interact with other inmates of all races and ethnicity during all out of cell activities. The process and my participation in it, is on-going and monitored. [sic] During this period I understood that my progress and suitability to remain in the program will be monitored and evaluated by staff.

Thomas was later unable to recall whether he was asked to sign the pledge form at every interview, but he stated that on each occasion that he was asked to sign, he refused to do so. 3 The prison refused to release Thomas from the modified program and continued to deny him access to the outdoor exercise yard, because he would not sign the pledge. A Correctional Lieutenant in Facility C, Lieutenant J. Celaya, subsequently explained that, because Thomas refused to sign the pledge, he “posed an unknown risk and threat to prison staff . . . . ” Celaya also stated that Thomas “had prior disciplinary problems, and was suspected of gang involvement. ” Celaya conceded, however, that Thomas’s alleged gang involvement was an unsubstantiated assumption. Moreover, four other prisoners provided sworn declarations that the prison had returned them to normal programming even though they had never signed the pledge form.

3Thomas’s reasons for refusing to sign the form are not immediately evident from the record. Thomas has offered various explanations for his refusal to sign. At one point, he stated that he refused to sign because he believed that the pledge would provide for “endless punishment” or “unspecified discipline” and would be used to force him to answer “questions about other inmates, ” when he was unwilling to do so. In his brief, Thomas further explained that he:
did not object to pledging non-violence; rather, he believed that California regulations did not allow the prison to deny inmates exercise or other privileges for failing to sign such a “general chrono” form, and was concerned that, by signing the form, he might subject himself to discipline for an incident in which he had no involvement.

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Thomas finally relented and signed the pledge form on August 31, 2006, at which juncture the prison officials released him from the modified program and restored his exercise privileges.4 Thomas testified that he signed the pledge because he was tired, severely stressed, and losing weight. Prior to his singing the pledge, the prison officials had denied Thomas outdoor exercise for a total of 13 months and 25 days.

B. PROCEDURAL BACKGROUND

On June 5, 2006, while incarcerated at Centinela State Prison in California, Thomas filed a 42 U.S.C. § 1983 action against SVSP prison officials. Thomas amended this complaint on July 5, 2006. In his amended complaint Thomas alleged, inter alia, that prison officials Captain Ponder, Officer Kircher, and Warden Evans violated his Eighth Amendment rights by denying him access to the exercise yard for almost 14 months. None of the other allegations in his amended complaint is before us on this appeal.

The prison officials filed a motion for summary judgment on Thomas’ Eighth Amendment claim and the district court granted the motion. It stated that it recognized that “[e]xercise is one of the most basic human necessities protected by the Eighth Amendment” and that Thomas had shown that his deprivation was sufficiently serious for a valid Eighth Amendment claim. It concluded, however, that for two reasons Thomas had failed to show that the prison officials acted with “deliberate indifference,” an essential element of an Eighth Amendment claim. First, it concluded that Thomas could not show that the prison officials were “subjectively aware” of the risk to Thomas’s health posed by the extended deprivation of exercise because “the undisputed evidence shows they believed the risk of harm to [Thomas] was insub-

4Thomas asserts that this was the second time he signed a pledge form. The first time was July 26, 2006.

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stantial or nonexistent’ because [he] could have signed the pledge at any time and gained immediate access to outdoor exercise.” Second, it concluded that by keeping Thomas in the modified program, and denying him outdoor exercise, the prison officials had acted “reasonably,” because:

(1) Facility C was placed on lockdown and then modified program in response to a “genuine emergency,” (2) there was a rational connection between requiring inmates to sign the CDC-128-B pledge and restoring institutional security, (3) plaintiff repeatedly refused to sign the pledge, (4) plaintiff had a lengthy discipline history, which included refusing to obey staff orders and threatening staff and other inmates, and (5) as a result of plaintiff’s refusal to sign the pledge and his disciplinary history, defendants were unable to assess the level of threat plaintiff posed to staff and other inmates should he be returned to a normal program. Further, . . . almost a year after the July 14, 2005 stabbing incident, through June 2006, there were several other documented threats and assaults that took place at SVSP and in Facility C that threatened the safety and security of the institution and hindered the ability of staff to return to Facility C to normal programming.

Thomas timely appeals the summary judgment order as to his Eighth Amendment claim.

II. ANALYSIS

We review de novo a district court’s grant of summary judgment. McDonald v. Sun Oil Co. , 548 F.3d 774, 778 (9th Cir. 2008). The non-moving party’s evidence “is to be believed, and all justifiable inferences are to be drawn in [his] favor . . . . [his] version of any disputed issue of fact is thus presumed correct.” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456 (1992) (internal quotation

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marks omitted). At this stage of proceedings, we do “not weigh the evidence or determine the truth of the matter [asserted], but only determine[ ] whether there is a genuine issue for trial. ” Balint v. Carson City , 180 F.3d 1047, 1054 (9th Cir. 1999) (en banc). “We will not reverse a district court’s grant of summary judgment unless the party opposing summary judgment has identified the evidence establishing a genuine issue of material fact in its opposition to summary judgment.” LVRC Holdings LLC v. Brekka , 581 F.3d 1127, 1137 (9th Cir. 2009). An issue of material fact is genuine “if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. ” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

We construe liberally the filings and motions of a pro se inmate in a civil suit. Bias v. Moynihan , 508 F.3d 1212 (9th Cir. 2007) holds that an ordinary pro se litigant, like other litigants, must comply strictly with the summary judgment rules. Id. at 1219 (citing Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986)). Pro se inmates are, however, expressly exempted from this rule:

It is the element of “choice” which most clearly distinguishes pro se prisoner cases from [ordinary pro se cases] . . . . an inmate’s choice of selfrepresentation is less than voluntary; and, when that unwilling self-representation is coupled with the further obstacles placed in a prisoner’s path by his incarceration—for example his limited access to legal materials and to sources of proof—it seems appropriate to apply the requirements of the summary judgment rule with less than strict literalness.

Jacobsen, 790 F.2d at 1365 n.4 (internal citations and quotation marks omitted). We have, therefore, held consistently that courts should construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly. See also Frost v. Symington, 197

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F.3d 348, 352 (9th Cir. 1999). Liberal construction is thus the appropriate standard to apply to Thomas’s filings in this case.

A. The district court’s ruling that there was insufficient evidence to establish that the prison officials knew of a serious risk of substantial harm to Thomas’s mental and physical health is incorrect as a matter of law

[1] Under Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009), an inmate seeking to prove an Eighth Amendment violation must “objectively show that he was deprived of something ‘sufficiently serious,’ ” and “make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health or safety. ” Id. at 812 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second step, showing “deliberate indifference,” involves a two part inquiry. First, the inmate must show that the prison officials were aware of a “substantial risk of serious harm ” to an inmate’s health or safety. 5 Farmer, 511 U.S. at 837. This part of our inquiry may be satisfied if the inmate shows that the risk posed by the deprivation is obvious. See id. at 842 (“[A] factfinder may conclude that a prison official knew of a substantial risk [to a prisoner’s health] from the very fact that the risk was obvious.”). Second, the inmate must show that the prison officials had no “reasonable” justification for the deprivation, in spite of that risk. 6 See id. at 844 ( “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably.”).

5In its order, the district court erroneously considers whether the prison officials were aware that Thomas was “suffering serious harm from the deprivation” of exercise. The correct issue for consideration is, however, whether the prison officials were subjectively aware of a “serious risk of substantial harm.” Farmer, 511 U.S. at 837 (emphasis added); Helling v. McKinney, 509 U.S. 25, 32 (1993) (emphasis added) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”).
6We discuss the “reasonableness” arguments infra.

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[2] The district court concluded correctly that the prison officials’ denial of out-of-cell exercise to Thomas for 13 months and 25 days was “sufficiently serious” to constitute a valid claim under the Eighth Amendment. As the Supreme Court noted in Wilson v. Seiter, 501 U.S. 294 (1991), prison officials may violate an inmate’s Eighth Amendment rights when they deprive him of “a single identifiable human need such as food, warmth, or exercise. ” Id. at 304. Here, as the district court noted, Thomas satisfies Foster and Farmer’s objective test based on the undisputed fact that he was denied outdoor exercise for the 13 months and 25 days. We have held consistently that “ordinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation ” for Eighth Amendment purposes. LeMaire v. Maass , 12 F.3d 1444, 1457 (9th Cir. 1993). A prohibition on outdoor exercise of six weeks is a “sufficiently serious” deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith , 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (9th Cir. 1994).

After determining that an individual has shown objectively that he was deprived of something “sufficiently serious,” we must next consider whether the risk to the inmate was sufficiently “obvious” to the prison officials that they must have been aware of the severity of the deprivation, before we move on to consider whether the deprivation was nonetheless reasonable in light of all of the circumstances. The district court appears, however, not to have considered whether the risk to Thomas’s health was “obvious,” but instead determined that it was “insubstantial or nonexistent, ” because (i) Thomas could have signed the form at any time, and (ii) Thomas had a “substantial” disciplinary history and security conditions at the prison were “acute.” In so doing, it bypassed a necessary step in its inquiry, and proceeded instead directly to the question of reasonableness. We therefore turn, in the first instance, to the question that the district court erroneously omitted: whether the risk to Thomas’s health was “obvious” to the prison officials.

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[3] Any argument that the risk to Thomas’s health was not “obvious” fails as a matter of law. See Farmer, 511 U.S. at 842. Farmer’s obviousness requirement does not necessitate a showing that an individual prison official had specific knowledge that harsh treatment of a particular inmate, in particular circumstances, would have a certain outcome. Rather, we measure what is “obvious” in light of reason and the basic general knowledge that a prison official may be presumed to have obtained regarding the type of deprivation involved. Id. For example, for the purposes of an obviousness analysis, a prison warden is deemed to have the general knowledge that is expected, at a minimum, of an individual performing the functions of that job. He cannot disclaim an understanding that is essential to the performance of his duties and that has been announced in our cases for over 30 years. Id. (“if an Eighth Amendment plaintiff presents evidence showing that a substantial risk was . . . longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it ” such evidence suffices) (citations and quotations omitted).

[4] As the district court acknowledged, “[e]xercise is one of the most basic human necessities protected by the Eighth Amendment.” Like food, it is “a basic human need protected by the Eighth Amendment. ” Keenan v. Hall , 83 F.3d 1083, 1091 (9th Cir. 1996); see also Wilson, 501 U.S. at 304. Our case law uniformly stresses the vital importance of exercise for prisoners. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) ( “Exercise has been determined to be one of the basic human necessities protected by the Eighth Amendment.”); Spain v. Procunier , 600 F.2d 189, 199 (9th Cir. 1979) (“There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical wellbeing of the inmates. ”).7 As we held in Foster, “if an inmate

7At least one other circuit has reached a similar conclusion. See French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (holding that “[l]ack of

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presents evidence of very obvious and blatant circumstances indicating that the prison official knew [a substantial risk of serious harm] existed, then it is proper to infer that the official must have known of the risk. ” 554 F.3d at 814 (citation omitted).

[5] It is undisputed by the parties that the prison officials

knew the length and scope of Thomas’s confinement without

outdoor exercise. Prison officials made and reviewed the deci-

sion to keep Thomas confined without out-of-cell exercise,

and Thomas submitted repeated written and oral complaints

to prison officials about his deprivation of out-of-cell exer-

cise. For over thirty years, we have emphasized that “some

form of regular outdoor exercise is extremely important to the

psychological and physical wellbeing of the inmates. ” Spain,

600 F.2d at 199. California strictly regulates this “regular out-

door exercise,” ordinarily requiring prisons to provide inmates

held in the general population with at least three hours of

exercise per week and inmates held in segregation with at

least one hour of exercise per day. Cal. Code Regs. tit. 15,

§§ 1065, 3343(h) (2006). The same regulations prohibit disci-

plining inmates by depriving them of outdoor exercise for

more than ten days, absent extreme circumstances.

Id.

§ 3322(c).

[6] In light of the above, we conclude that the prison officials were aware as a matter of law of the potential consequences of depriving an inmate of out-of-cell exercise for an extended period of time. The mere fact of the total deprivation of Thomas’s right to out-of-cell exercise for almost fourteen months is sufficient, in light of the established law, to render it obvious to the prison officials that their actions posed a “substantial risk of serious harm ” to Thomas’s mental and

exercise may certainly rise to a constitutional violation. Where movement is denied and muscles are allowed to atrophy, the health of the individual is threatened and the state’s constitutional obligation is compromised ”).

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physical health. We therefore reject the district court’s ruling to the contrary.

B. A genuine issue of material fact exists as to whether the prison officials acted reasonably in depriving Thomas of all out-of-cell exercise for 13 months and 25 days in light of all the circumstances

[7] The district court concluded that there was insufficient evidence to establish that a genuine issue of material fact existed as to whether the prison officials’ deprivation of Thomas’s right to out-of-cell exercise was “reasonable.” Given the record before us, and the seriousness of the risk to which Thomas was subjected, it is difficult to conceive how the prison officials actions would be deemed “reasonable.” Nevertheless, the issue is one of fact that must be presented to a fact-finder.

The district court found that the prison officials acted reasonably in light of Thomas’s “lengthy disciplinary history ” and of other actual or threatened violence at Facility C in 2005 and 2006, and because Thomas could have signed the pledge form at any time. We reverse this ruling, as well. We hold that the evidence in the record demonstrates that Thomas, at the least, raised a genuine issue of material fact as to whether the prison officials acted reasonably in light of: the serious risk to Thomas’s mental and physical health; the level of documented assaults and threats at the facility during the last 11 months Thomas was deprived of exercise; Thomas’s limited disciplinary record; his execution of other forms provided by the prison in which he promised to “program nonviolently”; and the prison authorities’ failure to consider providing him with alternative opportunities to exercise.

In reaching its conclusion that the prison officials reasonably relied on Thomas’s disciplinary history when they decided to deprive him of exercise for almost 14 months, the district court relied on LeMaire v. Maass, 12 F.3d 1444 (9th

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Cir. 1993) in which a prisoner had attacked a prison guard, “savagely attacked” another inmate, assaulted numerous prison officers with hot water, toilet water, food, feces, and urine, had at least 25 major rule violations in a two year period, and attacked two prison officials as he exited an exercise cubicle (an act “he vowed to repeat ” if he were allowed to exercise again). Id. at 1448, 1458. The LeMaire court found that restricting such a prisoner’s exercise privileges was reasonable “because he both abused them and represent[ed] a grave security risk. ” Id. at 1458. However, Thomas’s disciplinary history, as it appears in the record before us, bears very little resemblance to LeMaire’s. Thomas’s record lists only two disciplinary infractions: one episode of battery of an inmate in 2003 and one threat of violence to an inmate in 2002. The only disciplinary infraction during Thomas’s 13month-25-day confinement without out-of-cell exercise was a report filed by a prison official charging him with “willfully obstructing a police officer” because he submitted a complaint to the prison Warden about the officials’ refusal to allow him to exercise. LeMaire, therefore, has little relevance to the present case.

Furthermore, the evidence in the record demonstrates that the sole reason that Thomas was kept on modified programming was his failure to sign the pledge form, not any fear that prison officials harbored about Thomas’s dangerousness. The very fact that as soon as Thomas signed the pledge form he was permitted to engage in out-of-cell exercise shows that the prison officials did not consider him to be intrinsically dangerous, but apparently thought that he was “dangerous” only as long as he refused to sign the form. Both the district court and the prison officials assert that if Thomas had “signed the pledge at any time ” he would have “gained immediate access to outdoor exercise. ”8 Thus, there was apparently nothing

8The prison officials concede as much in their brief, where they state that “as the district court noted . . . [Thomas] ‘could have signed the pledge at any time and gained immediate access to outdoor exercise’ . . . . access to outdoor exercise was easily attainable . . . all he had to do was simply sign the pledge form.’ ”

Case:C0a9s-e135:50262-cv-00375/1861/-2M0M10C DPoacguem: 1e7nt7o2f 25FiledI0D7:/72460/170519PageD1k7tEonft2ry5: 40-1

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about Thomas that warranted deprivation of out-of-cell exercise other than the absence of his signature on the pledge. In addition, the record also shows that, apart from his refusal to sign the pledge form, Thomas cooperated with the multiple interviewers, and committed in writing to non-violence in separate contemporaneous interview forms. The district court did not consider these contemporaneous signed interview forms,9 even though they pose a significant obstacle to the prison officials’ assertion that they deprived Thomas of outof-cell exercise because they were concerned that he posed a threat of violence to other inmates—a threat that they later say would have been alleviated had he signed the pledge itself.

In reaching its conclusion that the prison officials’ refusal to allow Thomas to exercise outdoors was reasonable, the district court also considered the history of violence at SVSP. According to the district court, the prison officials acted reasonably in depriving Thomas of exercise because they were responding to a “genuine emergency.” We have held previously that prisons may curtail inmates’ outdoor exercise “when a genuine emergency exists. ” Specifically, “prison officials may be more restrictive than they otherwise may be, and certain services may be suspended temporarily. ” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Such an emergency may occur following outbreaks of extraordinary levels of violence in a prison. Norwood v. Vance, 572 F.3d 626, 631 (9th Cir. 2009) ( “When violence rises to unusually high levels, prison officials can reasonably believe it is lawful to temporarily restrict outdoor exercise to help bring the violence under control. ”)

9The prison officials argue that the district court disregarded these forms because “Thomas never alerted the district judge that these forms were relevant to his outdoor-exercise claim. ” Thomas, however, cited these forms repeatedly in his opposition papers, including the first two pages of his declaration.

Case:C0a9s-e135:50262-cv-00375/1861/-2M0M10C DPoacguem: 1e8nt7o2f 25FiledI0D7:/72460/170519PageD1k8tEonft2ry5: 40-1

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In this case, the prison officials make no substantial argument that the “emergency” caused by the July 14, 2005 incident in which a Facility C inmate stabbed two correctional officers endured for the 13 months and 25 days that Thomas was deprived of out-of-cell exercise. To the contrary, they admit that the lockdown that the “emergency” precipitated lasted for less than two months, from July 14, 2005 to September 9, 2005. Thereafter, the authorities introduced the “modified program,” to which individual prisoners were subject until they signed the pledge. The record shows that no further lockdown occurred at the facility, and 148 other Facility C inmates returned to normal programming while the deprivation of Thomas’s out-of-cell exercise remained in force.

The prison officials’ contention that from July 14, 2005 through June 2006 “there were several other documented threats and assaults that took place at SVSP ” does not establish that following the end of the lockdown on September 9, 2005, there was a “state of emergency” in the prison. 10 Documented threats and assaults happen frequently in prisons. Given that an emergency is different from normal prison conduct, an emergency cannot be deemed to exist simply because there are documented threats and assaults from time to time— otherwise every prison would be in a constant state of emergency.

Indeed, Thomas’s case is readily distinguishable from our “genuine emergency” cases, upon which the district court relied. The district court cited, for example, Hayward v. Procunier, 629 F.2d 599 (9th Cir. 1980), a case in which we

10Thomas was deprived of exercise for a total of 13 months and 25 days. For the first two months, the prison was on lockdown, for the remaining 11 months and 25 days it was not. During some part of nine of those remaining 11 months, the “documented threats and assaults ” are alleged to have occurred. The prison officials offer no evidence that any incidents of any kind occurred during the final two months prior to the date on which Thomas signed the pledge and his exercise privileges were restored.

Case:C0a9s-e135:50262-cv-00375/1861/-2M0M10C DPoacguem: 1e9nt7o2f 25FiledI0D7:/72460/170519PageD1k9tEonft2ry5: 40-1

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ruled that a “genuine emergency” existed at San Quentin prison in 1974 following a series of extremely violent incidents. Id. at 600, 603. We held that a five-month lockdown of the prison, including restrictions on out-of-cell exercise— initially on all out of cell exercise, but with “[s]ome yard exercise . . . permitted within a month after the lockdown began”—was permissible in such circumstances. Id. at 600. The extremely violent incidents, including “82 assaults with weapons and 12 killings, as well as 71 cases of possession of weapons and 2 attempted escapes, ” id., at San Quentin in 1974 were, however, quite distinct from the single stabbing incident, albeit of two guards, that occurred while Thomas was a prisoner at SVSP.

Moreover, we held that the restrictions on outdoor exercise imposed in Hayward were permissible in part because they were temporary, and because the inmates in that case “were allowed approximately the minimum exercise mandated in Spain within a month after the imposition of the lockdown. ” Id. at 603. The prison officials contend that Thomas’s deprivation of out-of-cell exercise was, like that of Hayward, a “temporary” measure, because Thomas could have signed the pledge at any time. Thomas’s 13 month and 25 day confinement without out-of-cell exercise was not, however, “temporary.” Whether a deprivation is temporary depends on the expiration date, if any, of the prison’s policy, not on whether an individual can escape its application by one means or another. Here, the policy was of indefinite duration. In Thomas’s case the deprivation would have lasted even longer than the almost 14 months it did, had Thomas not capitulated and signed the form because the ban on exercise had begun to affect his health.

The district court’s conclusion that the prison officials’ policy was “reasonable” is also highly questionable in light of the absence of any evidence in the record that the prison officials considered whether there were any alternative means of providing Thomas out-of-cell exercise. Even where security con-

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THOMAS v. P ONDER

10307

cerns might justify a limitation on permitting a prisoner “to mingle with the general prison population ” such concerns “do not explain why other exercise arrangements [are] not made. ” Spain, 600 F.2d at 200; see also Lopez , 203 F.3d at 1133 (holding that even if denying Lopez access to the general recreation yard was reasonable, “it does not explain why Lopez was not given some other opportunity for outdoor exercise. ”). The prison officials argue that “Thomas was offered alternatives to no exercise, when Defendants offered him opportunities for outdoor exercise once in August 2005, once in September 2005, once in October 2005, twice in November 2005, and an unspecified number of times between January 2006 and June 2006. ” The occasions cited by the prison officials are, in each case, those on which Thomas was offered the pledge form and refused to sign, not occasions on which he was offered “some other opportunity for outdoor exercise,” and declined to accept that offer.

The prison officials’ repeated assertion that the deprivation of exercise was “reasonable” because Thomas could have signed the pledge form at any time and thereafter would been permitted to exercise misses the point completely and is entirely inconsistent with our previous holdings. See Foster, 554 F.3d at 814. As we discuss supra, we have held that deprivation of exercise may be “reasonable” in certain situations, such as during a “state of emergency ” in a prison, or when a prisoner poses such a threat to inmates or guards that his confinement without exercise is the only way to maintain the security of the facility. Under the circumstances present here, however, in which the punishment of deprivation of exercise appears clearly not to have been necessary to maintain order in the prison, it is difficult to conceive of how a deprivation of a “basic human necessity, ” LeMaire, 12 F.3d at 1457, may be deemed reasonable. Thomas testified that during the 13 month 25 day period of confinement without out-of-cell exercise he did not sign and had no intention of ever signing the pledge form. Like the inmate in Foster, Thomas refused repeatedly to abide by a prison policy, and

Case:C0a9s-e135:50262-cv-00375/1861/-2M0M10C DPoacguem: 2e1nt7o2f 25FiledI0D7:/72460/170519PageD2k1tEonft2ry5: 40-1

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THOMAS v. P ONDER

complained to prison officials about the deprivation inflicted upon him by prison officials in response to his refusal to adhere to the policy. 11 Foster, 554 F.3d at 812. In common with Foster, Thomas could have chosen to behave differently, but he did not, and in punishing him for that choice the prison officials placed him at risk of substantial physical and mental harm. Id. at 812-14. We therefore hold that, as in Foster, Thomas has, at the very least, raised a genuine issue of material fact as to whether the prison officials’ actions were reasonable.

[8] In sum, Thomas has, at the very least, raised a genuine issue of material fact as to whether the prison officials acted reasonably in denying him of all out-of-cell exercise for 13 months and 25 days. The record shows that Thomas had already promised to “program non-violently” in the separate interview forms that he signed. Neither Thomas’s own limited disciplinary record, nor the occasional documented threats or acts of other prisoners appears to have rendered it reasonable to deprive him of all out-of-cell exercise opportunities during the lengthy period involved. The record also reflects that the prison officials failed to consider other ways of providing Thomas with sufficient exercise that would not have implicated any of their purported security concerns. Finally, the prison authorities’ contention that Thomas could have signed the pledge form at any time would not appear to provide a justification for their actions over so long a period. We therefore hold that the district court erred in ruling that there was insuf-

11The prison officials do not argue explicitly that Thomas’s refusal to sign the pledge form demonstrated a dangerous resistance to authority or a failure to comply with or abide by the rules that justified his prolonged confinement without exercise. Even if the prison officials had made such an argument, however, and even if such an argument had merit, it would be highly unlikely to outweigh the prison officials’ responsibility to safeguard an inmate’s health. It is thus hard to envisage any circumstances in which the refusal to sign a form would justify jeopardizing an inmate’s health by depriving him of all opportunity to exercise for almost 14 months.

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THOMAS v. P ONDER

10309

ficient evidence to raise a genuine issue of material fact as to whether the prison officials acted reasonably. Accordingly, we reverse the district court’s ruling granting summary judgment to the prison officials.

We should add that we have difficulty in conceiving how the prison officials might be able to justify the deprivation of so critical a human necessity as exercise for a period of almost 14 months on the basis of “reasonableness,” as they would have been willing to allow Thomas to enjoy out-of-cell exercise throughout almost all of this period if he had signed the pledge form. Nevertheless, because we are asked to decide only whether the district court’s ruling on the prison officials’ motion for summary judgment was erroneous and because Thomas has not asked us to grant him relief in the form of summary judgment, we are reluctant to do more than reverse and remand for further proceedings.

C. We decline to reach the prison officials’ argument that they are entitled to qualified immunity

The district court did “not reach defendant’s argument that they are entitled to qualified immunity, ” because it found that Thomas had failed to make any actionable constitutional claims. The prison officials suggest that, irrespective of our ruling on Thomas’s constitutional claims, we should affirm the district court’s grant of summary judgment to the prison officials on the ground of qualified immunity.

In order to establish qualified immunity, a government official must show that his “conduct has not violated any ‘clearly established’ constitutional right of which a reasonable person would have known.” Foster, 554 F.3d at 812 (internal quotation marks omitted). Although the prison officials have raised this issue on appeal, they have not attempted to show how or why each of the named prison officials is entitled to qualified immunity, nor did they do so before the district court. Certainly none has shown any reason for such relief in light of

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our reversal and remand on the question of a constitutional violation.

[9] In light of the above, we decline to consider the question of qualified immunity for the first time on appeal, and remand the case to the district court to consider that issue in the first instance, at such time in the further proceedings as it may be appropriate to do so.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN LIGHT OF THIS OPINION.

FRIEDMAN, Circuit Judge, dissenting:
In my view, the appropriate and dispositive inquiry in this case is whether the prison officials abused their discretion or otherwise acted unreasonably in requiring the prison inmates, as a condition of their release from various restrictions imposed following a lockdown (including the ability to leave their cells for outdoor exercise, the restriction here at issue), to sign a pledge that they would not engage in violent conduct if they were so released. Since I conclude that the prison officials did not abuse their discretion, I would affirm the district court’s grant of summary judgment dismissing the inmate’s damage suit under 42 U.S.C. § 1983, alleging that denying him outdoor exercise for almost fourteen months because of his refusal to sign the pledge, subjected him to cruel and unusual punishment in violation of the Eighth Amendment.
The appellant Thomas was housed in a maximum security unit of a California state prison. The prison was locked down after another inmate in the unit stabbed and seriously wounded two correctional officers. The lockdown, during which prisoners were confined to their cells and could leave them only in emergencies or for extraordinary circumstances, was in effect for approximately two months.

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THOMAS v. P ONDER

10311

When the lockdown ended, the prison officials introduced a “modified” program containing many of the same restrictions that had existed during the lockdown, including the prohibition on leaving the cell for outdoor exercise. To leave the “modified” program and to return to a “normal” one, inmates were required to be interviewed and to sign a pledge. In his interviews, Thomas answered “yes” to the following questions on an interview form: “Programming on a level IV general population yard requires participation without violence. Are you willing to commit to this type of program? If not, give details?” “If the facility were returned to normal program, could you program without violence on a level IV general population yard with inmates from all races/ethnics [sic] or past or present gang affiliations? ” He answered “no” to the question “Do you have any safety concerns? ”

The pledge form that Thomas refused to sign for a substantial period, although he was asked to do so on several occasions and apparently informed that if he did so he could have outdoor exercise, contained the following statement:

By signing this document, I am advising staff that I want to participate in the program review process being implemented at this time. I am also stipulating that I want to “do my own time ” and will program by not participating in gang violence.

Prison officials, headed by the warden, are responsible for maintaining order and imposing discipline in the prison. They must protect the inmates and prison employees, including the guards and correctional officers, against violence and injury. In carrying out these responsibilities, they necessarily must have broad discretion in deciding how to run the prison and to determine what steps are appropriate and necessary to deal with particular situations and problems as they arise. Since the facility where Thomas was housed was a maximum security unit, one must assume that its inhabitants included many violent and dangerous prisoners.

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Considering all the circumstances, I cannot say that the prison officials abused their discretion or otherwise acted unreasonably in requiring the inmates of that maximum security unit to sign the pledge form containing the commitment not to engage in violence, as a condition of their returning to the regular prison program, which included outdoor exercise.

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court For the Northern District of California

8

OTIS THOMAS,

) No. C 06-3581 MMC (PR)

9

)

) ORDER DENYING PLAINTIFF’S

10

Plaintiff,

) MOTIONS TO COMPEL AND FOR

) SANCTIONS; GRANTING DEFENDANTS’

11

v.

) MOTIONS FOR PROTECTIVE ORDER

) AND TO STAY DISCOVERY; LIFTING

12 M.S. EVANS, Warden,

) STAY OF MOTION TO DISMISS AND

) SCHEDULING FURTHER BRIEFING

13

Defendants.

)

_______________________________ ) (Docket Nos. 21, 26, 30, 31, 32)

14

On June 5, 2006, plaintiff, a California prisoner currently incarcerated at Centinela 15

State Prison and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C. 16

§ 1983, alleging the violation of his constitutional rights by prison officials at Salinas Valley 17

State Prison. On July 5, 2006, plaintiff filed an amended complaint; on December 11, 2006, 18

the Court found plaintiff’s allegations stated cognizable claims for relief, ordered the 19

amended complaint served on defendants, and ordered defendants to file a dispositive motion 20

or indicate they were of the opinion that plaintiff’s claims could not be resolved by such a 21

motion. After being granted an extension of time, defendants filed two separate motions. 22

Specifically, on March 12, 2007, defendants filed a motion to dismiss plaintiff’s Eighth 23

Amendment claim pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the 24

ground plaintiff had failed to exhaust his administrative remedies, and on April 11, 2007, 25

defendants filed a motion for summary judgment on plaintiff’s First Amendment and Equal 26

Protection claims. 27

On April 9, 2007, plaintiff filed a motion to compel discovery and for sanctions. On 28

United States District Court For the Northern District of California

1 April 18, 2007, the Court ordered defendants to file an opposition to plaintiff’s motions, and

2 informed plaintiff he could file a reply to the opposition. The Court also entered a stay of

3 defendants’ motions to dismiss and for summary judgment pending resolution of the

4 discovery motions.

5

On May 7, 2007, defendants filed their opposition to plaintiff’s motions, and also filed

6 a motion for protective order and to stay further discovery. On May 25, 2007, plaintiff filed

7 three new motions to compel discovery and for sanctions. The Court now addresses the

8 parties’ pending motions.

9

DISCUSSION

10 A. Plaintiff’s Motions to Compel and For Sanctions

11

1. Motion Filed April 9, 2007 (Docket No. 21)

12

On March 23, 2007, plaintiff signed and dated his first motion to compel discovery

13 and for sanctions; the motion was filed in this court on April 9, 2007. In his motion, plaintiff

14 alleges that as of the date he prepared the motion defendants had not responded to any of

15 plaintiff’s January 30, 2007 discovery requests; he asks the Court to compel them to do so.

16

In response, defendants argue the motion should be denied because (1) plaintiff agreed

17 that defendants could have until March 30, 2007 to provide him with discovery responses,

18 but he then attempted to renege on that agreement and did not make a good-faith effort to

19 meet and confer with defendants’ counsel before seeking court intervention; and (2) plaintiff

20 filed his motion after defendants already had responded to his discovery requests, and he did

21 not acknowledge in the motion that they had done so.

22

Defendants offer the following evidence in support of their argument. During a

23 telephone conference on March 13, 2007, defendants and plaintiff reached an agreement that

24 defendants would respond to plaintiff’s discovery requests by March 30, 2007. (Decl. N.

25 Huynh Supp. Defs.’ Opp. (“Huynh Decl.”) ¶ 8 & Ex. 6.) Immediately after the telephone

26 conference, defendants’ counsel memorialized the agreement and faxed a copy to plaintiff. 27 (Id. ¶ 9 & Ex. 8.) The next day, March 14, 2007, plaintiff sent a meet-and-confer letter to 28 defendants’ counsel, stating his intention to file a motion to compel and for sanctions if

2

United States District Court For the Northern District of California

1 defendants did not respond to plaintiff’s discovery requests by March 19, 2007. (Id. ¶ 10 &

2 Ex. 7.) On March 20, 2007, defendants’ counsel sent plaintiff a response to plaintiff’s

3 March 14 letter, informing plaintiff that the letter appeared to renege on the March 13, 2007

4 agreement, and reminding him that defendants would respond to his discovery requests on or

5 before March 30, 2007, as the parties previously had agreed. (Id. ¶ 12 & Ex. 8.) On

6 March 30, 2007, defendants’ counsel mailed 179 pages of discovery responses to plaintiff.

7 (Id. ¶ 14 & Ex. 9.) On April 6, 2007, defendants’ counsel received plaintiff’s motion to

8 compel and for sanctions. (Id. ¶ 15.) The motion is signed and dated March 23, 2007, (Mot.

9 at 3), and the proof of service is dated April 4, 2007. (Proof of Service at 2.)

10

The Court will deny the motion to compel. If plaintiff had made a good-faith effort to

11 meet and confer with defendants after he received the March 20, 2007 letter in which

12 defendants’ counsel reiterated the parties’ March 13, 2007 discovery agreement, plaintiff

13 would have realized that the motion to compel was unnecessary because, in accordance with

14 said agreement, defendants would be providing plaintiff with their discovery responses by

15 March 30, 2007. Further, by the time plaintiff filed his motion, defendants already had

16 provided plaintiff with 179 pages of discovery responses, making the motion unnecessary.

17

Plaintiff seeks sanctions for defendants’ alleged discovery violations and also for

18 matters unrelated to discovery, concerning defendants’ involvement in the incidents which

19 form the basis for plaintiff’s underlying claims in this action. Because the Court has found

20 no discovery violations by defendants and sanctions are not a proper remedy for plaintiff’s

21 underlying claims of injury, the motion for sanctions will be denied.

22

2. Motions Filed May 25, 2007 (Docket Nos. 30-32)

23

On May 25, 2007, plaintiff filed three additional motions to compel discovery and for

24 sanctions. In these motions plaintiff seeks to compel defendants to provide further responses

25 to the following interrogatories: (1) interrogatories nos. 5, 6, 8, 9, 10 and 12 for defendant

26 Kirchner; (2) interrogatories nos. 5, 6, 9, 10, 12 and 14 for defendant Ponder; and 27 (3) interrogatories nos. 5, 6, 8, 9, 10, 11, 12, 15, 16 and 20 for defendant Evans. Plaintiff 28 also seeks sanctions for defendants’ alleged discovery violations.

3

United States District Court For the Northern District of California

1

Defendants oppose the motion to compel on the ground plaintiff failed to meet and

2 confer in good faith with defendants’ counsel before seeking court intervention. Specifically,

3 defendants assert, defendants’ counsel did not learn of plaintiff’s objections to defendants’

4 discovery responses until plaintiff filed the instant motion. (Opp. at 4 & Decl. N. Huynh

5 Supp. Opp. (“Huynh Decl.”) ¶ 3.)

6

Plaintiff may file a motion to compel discovery only after he satisfies the “meet and

7 confer” requirements of the discovery rules. See Fed. R. Civ. P. 37(a)(2)(A); L. R. 37-1(a).

8 It is clear from plaintiff’s motions that he has not done so. Accordingly, plaintiff’s additional

9 motions to compel and for sanctions will be denied as premature.

10 B. Defendants’ Motion for Protective Order and to Stay Discovery (Docket No. 26)

11

As noted above, defendants have filed two dispositive motions in this matter: (1) a

12 motion to dismiss plaintiff’s Eighth Amendment claim pursuant to Rule 12(b) of the Federal

13 Rules of Civil Procedure, on the ground plaintiff has failed to exhaust his administrative

14 remedies, and (2) a motion for summary judgment on plaintiff’s First Amendment and Equal

15 Protection claims, which motion includes, inter alia, defendants’ assertion of the defense of

16 qualified immunity. On May 7, 2007, defendants filed a motion to stay further responses to

17 discovery until both dispositive motions have been ruled on.

18

With respect to their motion to dismiss, defendants ask the Court to enter a protective

19 order, under Rule 26(c) of the Federal Rules of Civil Procedure, staying further responses to

20 discovery related to the issue of exhaustion. See Fed. R. Civ. P. 26(c) (providing court may

21 issue protective order staying discovery upon finding of good cause). Defendants argue a

22 stay is appropriate because: they have attached to their motion to dismiss all available

23 materials that are relevant to the issue whether plaintiff properly exhausted his available

24 administrative remedies; plaintiff has access to his central prison file, which contains his

25 inmate appeals; and, plaintiff has received defendants’ discovery responses, which were

26 served on plaintiff on March 30, 2007.

27

The Court finds good cause exists to grant defendants’ request; accordingly, the Court

28 will enter a protective order staying further responses to discovery related to the issue of

4

United States District Court For the Northern District of California

1 exhaustion until the Court has ruled on the motion to dismiss.

2

With respect to their motion for summary judgment, defendants ask the Court to stay

3 further responses to discovery related to the motion for summary judgment until the Court

4 has ruled on defendants’ qualified immunity defense. As a general rule, a district court

5 should stay discovery until the issue of qualified immunity is resolved. See Crawford-El v.

6 Britton, 523 U.S. 574, 598 (1998); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

7 Defendants’ motion for a stay of discovery will be granted; accordingly, the Court will enter

8 a stay of further responses to discovery related to the motion for summary judgment until the

9 Court has ruled on the issue of qualified immunity.

10 C. Previous Stay of Dispositive Motions

11

On April 18, 2007, the Court entered a stay of defendants’ motions to dismiss and for

12 summary judgment until plaintiff’s discovery motions had been resolved. In light of the

13 Court’s resolution, in this order, of all pending discovery motions, the Court will lift the stay

14 of defendants’ motion to dismiss plaintiff’s Eighth Amendment claim; a briefing schedule on

15 said motion is set forth below. The stay of defendants’ motion for summary judgment will

16 remain in effect, however, until the motion to dismiss has been resolved. If the motion to

17 dismiss is granted, the Court will lift the stay of the motion for summary judgment and set a

18 briefing schedule on that motion. If the motion to dismiss is denied, defendants will be

19 ordered to file a supplemental motion for summary judgment, addressing plaintiff’s Eighth

20 Amendment claim, and a briefing schedule on that motion and the currently pending motion

21 for summary judgment will be set.

22

CONCLUSION

23

For the reasons stated above, the Court orders as follows:

24

1. Plaintiff’s motions to compel discovery and for sanctions are hereby DENIED.

25 (Docket Nos. 21, 30, 31 and 32.)

26

2. Defendants’ motion for a protective order and to stay further discovery responses is

27 GRANTED. (Docket No. 26.)

28

3. The stay of defendants’ motions to dismiss entered on April 18, 2007 is hereby

5

United States District Court For the Northern District of California

1 LIFTED. The stay of defendants’ motion for summary judgment remains in effect. (Docket

2 No. 25.)

3

4. The briefing schedule on defendants’ motions to dismiss is SET as follows:

4

a. Plaintiff’s opposition to defendants’ motions to dismiss shall be filed with

5 the Court and served on defendants no later than thirty (30) days from the date of this order.1

6

b. Defendants shall file a reply brief to plaintiff’s opposition no later than

7 fifteen (15) days from the date the opposition is filed.

8

5. The motion shall be deemed submitted as of the date the reply brief is due. No

9 hearing will be held on the motion unless the Court so orders at a later date.

10

6. All communications by plaintiff with the Court must be served on defendants’

11 counsel by mailing a true copy of the document to defendants’ counsel.

12

7. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

13 informed of any change of address and must comply with the Court’s orders in a timely

14 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

15 pursuant to Federal Rule of Civil Procedure 41(b).

16

8. Any motion for an extension of time must be filed no later than the deadline sought

17 to be extended and must be accompanied by a showing of good cause.

18

19

1With respect to defendants’ unenumerated motion to dismiss under Rule 12(b), plaintiff is cautioned as follows:

20

The defendants have made a motion to dismiss pursuant to Rule 12(b) of

21

the Federal Rules of Civil Procedure, on the ground you have not exhausted your administrative remedies. The motion will, if granted, result in the

22

dismissal of your case. When a party you are suing makes a motion to dismiss for failure to exhaust, and that motion is properly supported by declarations (or

23

other sworn testimony) and/or documents, you may not simply rely on what your complaint says. Instead, you must set out specific facts in declarations,

24

depositions, answers to interrogatories, or documents, that contradict the facts shown in the defendant’s declarations and documents and show that you have

25

in fact exhausted your claims. If you do not submit your own evidence in opposition, the motion to dismiss, if appropriate, may be granted and the case

26

dismissed.

27

This notice is adapted from the summary judgment notice to be given to pro se prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

28 Wyatt v. Terhune, 315 F.3d at 1120 n.14.

6

United States District Court For the Northern District of California

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This order terminates Docket Nos. 21, 26, 30, 31 and 32.

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IT IS SO ORDERED.

3 DATED: January 14, 2008 4 5

_________________________ MAXINE M. CHESNEY United States District Judge

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court For the Northern District of California

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OTIS THOMAS,

) No. C 06-3581 MMC (PR)

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)

) ORDER GRANTING DEFENDANTS’

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Plaintiff,

) MOTIONS FOR SUMMARY

) JUDGMENT; DENYING PLAINTIFF’S

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v.

) MOTIONS FOR JUDICIAL NOTICE

)

13 M.S. EVANS, Warden, et al., )

)

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Defendants.

) (Docket Nos. 22, 43, 55 & 56)

____________________________ )

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16

On June 5, 2006, plaintiff, a California prisoner currently incarcerated at Centinela

17 State Prison and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C.

18 § 1983, alleging the violation of his constitutional rights by prison officials at Salinas Valley

19 State Prison (“SVSP”). On July 5, 2006, plaintiff filed an Amended Complaint (“AC”),

20 which is the operative pleading herein. In response to the AC, defendants have filed two

21 dispositive motions: (1) on April 11, 2007, defendants filed a motion for summary judgment

22 on plaintiff’s First Amendment and Equal Protection claims (“Motion for Summary

23 Judgment I”), and (2) on August 7, 2008, defendants filed a motion for summary judgment

24 on plaintiff’s Eighth Amendment claim (“Motion for Summary Judgment II”). Plaintiff has 25 filed opposition to each of defendants’ motions,1 and defendants have filed a reply. 26

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1As noted by defendants in their reply, the opposition filed by plaintiff on December

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17, 2008, in response to defendants’ Motion for Summary Judgment II, encompasses all of the arguments presented by plaintiff in his earlier opposition, filed February 13, 2008, to

United States District Court For the Northern District of California

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FACTUAL BACKGROUND2

2

The events underlying plaintiff’s claims occurred in 2005-2006 in Facility C, a level

3 IV maximum security housing unit at SVSP. At all relevant times herein, plaintiff was a

4 level IV prisoner housed in Facility C, defendant G. Ponder (“Ponder”) was the captain of

5 Facility C, defendant M. Kircher (“Kircher”) was a correctional officer in Facility C, and

6 defendant M.S. Evans (“Evans”) was the warden at SVSP. (AC at 2.)

7 A. Modified Program For Facility C Inmates

8

Inmates are housed in Facility C for various reasons, including a history of assaultive

9 behavior and disciplinary actions, gang-related convictions, and lengthy or life sentences.

10 (Decl. Def. Ponder Supp. Defs.’ Mot. Summ. J. I (“Ponder Decl.”) ¶ 4.) On July 14, 2005, in

11 Facility C, an inmate using a homemade knife stabbed and almost killed two correctional

12 officers. (Id. ¶ 18; Decl. Lt. Celaya Supp. Defs.’ Mot. Summ. J. II (“Celaya Decl.”) ¶ 3.) As

13 a result of the incident, SVSP was placed on lockdown. (Ponder Decl. ¶ 15; Celaya Decl. ¶

14 3.) Eventually, the lockdown was lifted for all housing units with the exception of Facility C

15 which, before the incident, had been in the process of returning to a normal program after a

16 previous violent incident. (Ponder Decl. ¶¶ 14-15.) Facility C remained on lockdown until

17 September 9, 2005, when it transitioned from lockdown to a “modified program.” (Id. ¶ 15.)

18

During a modified program, Facility C inmates are affected as follows: they are

19 restricted to and fed in their cells; certain privileges or activities such as quarterly packages,

20 visitations, and outdoor recreation are restricted, curtailed or modified; and the movement of

21 all inmates is in restraints and under escort. (Id. ¶ 6.) During the relevant period herein, the

22 modified program allowed non-contact visits only, suspended quarterly packages, and

23 curtailed outdoor recreation. (Id.)

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25 defendants’ Motion for Summary Judgment I. (Reply at 2:1-9.) Consequently, defendants,

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in their reply, refer only to the December 17, 2008 opposition. As that opposition comprehensively addresses the arguments made by defendants in both of their motions for

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summary judgment, the Court likewise will rely on the December 17, 2008 opposition in ruling on defendants’ motions.

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2Unless otherwise noted, the facts set forth in the following section are undisputed.

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United States District Court For the Northern District of California

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The primary objective of a prison lockdown and modified program is to provide a

2 secure and safe environment for both staff and other inmates. After the disturbance or

3 emergency that led to the lockdown and modified program is isolated and contained, an

4 investigation is conducted to collect evidence and gather information. The investigation may

5 involve: inmate interviews; searches of cells, common areas, yards, and buildings;

6 monitoring of incoming and outgoing mail; and other means of collecting information. At

7 the conclusion of the investigation phase, the facility captain is responsible for formulating a

8 plan to return the affected facility to a normal program. (Id. ¶ 17.)

9 B. Plan to Return Facility C to Normal Program

10

At the conclusion of the investigation phase following the July 14, 2005 stabbing

11 incident, defendant Ponder, the captain of Facility C, formulated and implemented a plan to

12 return Facility C inmates from a modified program to a normal program. (Id ¶¶ 7 & 16.) On

13 October 17, 2005, Ponder sent a memorandum to Facility C inmates, updating them on the

14 program status of Facility C and explaining what they would be required to do to be returned

15 to a normal program. The memorandum explained that the following steps were being taken

16 in response to a recent history of ongoing violence in Facility C:

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Prior to the attempted murder of the two Correctional Officers, the facility was

operating under four separate modified programs. Over the last few years C

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Facility has operated on continuing modification due to the violence within the

facility. The motives of each disturbance have varied, however the singular

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driving force behind each incident has been level IV inmate’s [sic] politics

which are predominately gang related. The inmate population succumbs to this

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peer pressure and condones this violence as acceptable in a level IV 180

general population setting. The attitude and violence has continued over a

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substantial period of time. During meetings with various inmates on the

facility during classification and tours of the units, inmates repeatedly have

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confirmed this verbally as well as by their actions to staff. This is

unacceptable. This jeopardizes the safety and welfare of every person who

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lives and works on the facility.

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Although incarcerated, each inmate is expected to be a law abiding citizen, the

choice to program and rehabilitate oneself falls directly on each individual

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inmate.

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I am developing a process to help the facility work towards providing inmates

that want to program without violence an opportunity to do so. The choice to

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program will be in the hands of each individual inmate. The first step in this

process will be interviews. The next step will be your commitment to program

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without violence and verification of this commitment by signing that fact. The

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United States District Court For the Northern District of California

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next process will involve Correctional Officers identifying inmates that have

shown willingness to program and providing a list of those inmates to

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supervisory staff.

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Inmates that fail to act in accordance with Departmental rules and Institution

procedures will result in housing and program changes. Inmates are advised

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that their privileges and access to programs will be curtailed until you as an

individual successfully comply with this process.

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In closing, your program is in your own hands. Program is available to any and

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all general population inmates. All you need is the willingness and

commitment to program without violence.

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(Decl. Csl. (Neah Huynh) Supp. Defs.’ Mot. Summ. Jud. II (“Huynh Decl.”) Ex. 2 Part 1

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(Def. Ponder’s Resp. Pl.’s Req. Produc. Docs.) RPD 0003.)

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Ponder’s plan included interviewing each inmate at least two times in order to gather

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intelligence and identify those inmates who were willing to program without violence.

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(Ponder Decl. ¶ 16; Celaya Decl. ¶ 4.) At each interview, the inmate would be asked to sign

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a CDC-128-B “pledge”3 as evidence of his willingness to follow the program without

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violence. (Id.) The CDC-128-B pledge stated: 14

I am currently housed within Facility ‘C’ Salinas Valley State Prison. I am

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also aware that this facility is on modified program status based upon several

acts of violence having occurred within the past 15 months. 16

By signing this document, I am advising staff that I want to participate in the

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program review process being implemented at this time. I am also stipulating

that I want to “do my own time” and will program by not participating in gang

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violence.

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I have been advised that my failure to act in accordance with institutional rules

and procedures may result in program and housing changes. I am aware that

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during the time I participate in the program review process, I will retain my

established work/privilege group.

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I am aware, if I am unassigned and I participate in the program review process

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that my participation does not constitute a credit earning assignment. Further, I

understand that my privileges and access to programs will be curtailed until I

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successfully complete this program and am returned to normal general

population program status.

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I have been advised that the program review process is ongoing and that I will 25

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3“CDC-128-B” is the form number used by the California Department of Corrections

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and Rehabilitation (“CDCR”) to identify departmental memoranda, but not the contents thereof. Consequently, for the purpose of clarity, the Court refers to the CDC-128-B

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attached as Exhibit 1 to defendant Ponder’s declaration, and constitutes the basis for much of the dispute herein, as the “CDC-128-B pledge.”

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United States District Court For the Northern District of California

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be expected to maintain compliance with regulations to participate. During the

program review process I will be required to interact with other inmates of all

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races and ethnicity during all out of cell activities. The process and my

participation in it, is on-going and monitered. [sic] During this period I

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understand that my progress and suitability to remain in the program will be

monitored and evaluated by staff.

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(Ponder Decl. Ex. 1.)

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The inmates who were found willing to program without violence typically were

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returned immediately to normal programming following the initial interview or signing of the

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CDC-128-B pledge. (Ponder Decl. ¶ 8; Celaya Decl. ¶ 4.) Inmates who did not 8

“meaningfully” participate in the interview process, such as those inmates who refused to 9

sign the CDC-128-B pledge or declined interviews, were identified either as failing to 10

successfully complete the interview process or interviewing in such a fashion that staff could 11

not determine the threat posed by those inmates to other inmates or staff. (Celaya Decl. ¶ 5.) 12

Such inmates were retained on modified program status, (Ponder Decl. ¶ 9), and received 13

closer scrutiny and further assessment of their risk and threat to prison staff and other 14

inmates, including close review of their central files for gang and disciplinary histories. 15

(Celaya Decl. ¶ 5.) Each inmate who refused to sign the CDC-128-B pledge would continue 16

to be interviewed either until all inmates in the affected facility signed the pledge or until the 17

facility captain deemed it safe to return the facility to a normal program based on intelligence 18

received during the investigation. (Ponder Decl. ¶ 10.) 19

C. Plaintiff’s Refusal To Sign the CDC-128-B Pledge 20

Following defendant Ponder’s implementation of the above plan to return Facility C to 21

a normal program, plaintiff was interviewed several times between August 2005 and June 22

2006. (See Huynh Decl. Ex. 1 Part 1 (Pl.s’ Depo.) at 141:25, 142:1-4, 147:4-8, 148:21-24, 23

152:6-9, 195:9-14.) Plaintiff does not remember if he was asked to sign the CDC-128-B 24

pledge at each of the interviews, but states that at each interview he either refused to sign the 25

pledge or, if prison officials had asked him to sign the pledge, he would have refused. (See 26

id. & Pl.’s Depo. at 151:11-14, 152:2-5.) 27

In particular, the record shows that during plaintiff’s November 2, 2005 interview he 28

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United States District Court For the Northern District of California

1 was asked to sign the CDC-128-B pledge but refused to do so. (Ponder Decl. ¶ 17.)

2 Subsequently, on November 4, 2005, Ponder sent a memorandum to plaintiff, informing him

3 that he had failed to complete the interview process or had interviewed in such a manner that

4 prison staff could not determine the level of threat he posed to staff or inmates. (Id. ¶ 18 &

5 Ex. 3.) As a result, plaintiff was informed:

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[Y]ou will remain on modified program status to include personal hygiene

canteen draw only, no quarterly packages, no special purchase. Also due

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to your refusal/failure to comply with the interview process and administrations

[sic] inability to ascertain your threat status you will be placed on non-contact

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visiting. These modifications will remain in effect until further notice.

9 (Ponder Decl. Ex. 3.) Further, plaintiff was informed he would be placed at the bottom of the

10 interview list to be reviewed for program potential. (Id.)

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Prison officials deemed plaintiff an unknown risk and threat to prison staff and other

12 inmates not only because he refused to sign the CDC-128-B pledge, but also because he had

13 a history of disciplinary problems and was suspected of gang involvement. (Celaya Decl. ¶

14 5, Huynh Decl. Ex. 2 Part 1 (Def. Ponder’s Resp. Pl.’s Req. Produc. Docs.) RPD 0004.)

15

Plaintiff remained on modified program status until August 31, 2006, when he signed

16 the CDC-128-B pledge and was returned to a normal program. (Ponder Decl. ¶ 18.) As a

17 result of being on modified program status, plaintiff was denied outdoor exercise for

18 approximately thirteen months.

19 D. Plaintiff’s Claims

20

Based on the above, plaintiff asserts the following claims for relief: (1) defendants

21 violated his First Amendment rights by requiring him to sign the CDC-128-B pledge in order 22 to be returned to a normal program, (2) defendants violated plaintiff’s right to equal 23 protection by denying him access to privileges afforded other inmates who also had refused 24 to sign the CDC-128-B pledge, and (3) defendants violated plaintiff’s Eighth Amendment 25 rights by depriving him of outdoor exercise for thirteen months while he was on modified 26 program status. 27

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United States District Court For the Northern District of California

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DISCUSSION

2 A. Legal Standard

3

Summary judgment is proper where the pleadings, discovery and affidavits show there

4 is “no genuine issue as to any material fact and that the moving party is entitled to judgment

5 as a matter of law.” See Fed. R. Civ. P. 56(c). Material facts are those that may affect the

6 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

7 dispute as to a material fact is genuine if the evidence is such that a reasonable jury could

8 return a verdict for the nonmoving party. See id.

9

The court will grant summary judgment “against a party who fails to make a showing

10 sufficient to establish the existence of an element essential to that party’s case, and on which

11 that party will bear the burden of proof at trial . . . since a complete failure of proof

12 concerning an essential element of the nonmoving party’s case necessarily renders all other

13 facts immaterial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also

14 Anderson v. Liberty Lobby, 477 U.S. at 248 (holding fact is material if it might affect

15 outcome of suit under governing law; further holding dispute about material fact is genuine

16 “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

17 party”). The moving party bears the initial burden of identifying those portions of the record

18 that demonstrate the absence of a genuine issue of material fact. The burden then shifts to

19 the nonmoving party to “go beyond the pleadings, and by his own affidavits, or by the

20 ‘depositions, answers to interrogatories, or admissions on file,’ designate ‘specific facts

21 showing that there is a genuine issue for trial.’” See Celotex, 477 U.S. at 324 (citing Fed. R.

22 Civ. P. 56(e)).

23

In considering a motion for summary judgment, the court must view the evidence in

24 the light most favorable to the nonmoving party; if, as to any given fact, evidence produced

25 by the moving party conflicts with evidence produced by the nonmoving party, the court

26 must assume the truth of the evidence set forth by the nonmoving party with respect to that 27 fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The court’s function on 28 a summary judgment motion is not to make credibility determinations or weigh conflicting

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United States District Court For the Northern District of California

1 evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec.

2 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

3 B. First Amendment Claim

4

Plaintiff claims that requiring him to sign the CDC-128-B pledge in order to be

5 returned to a normal program violated his First Amendment “right to political beliefs,”

6 because the pledge provides for “endless punishment” or “unspecified discipline” and asks

7 “questions about other inmates.” (AC at 2:24-27, 4:1-3, 4:26-28, 5:1-2.) Further, plaintiff

8 maintains, his First Amendment rights were violated because he was forced to choose

9 between signing the pledge or being punished, specifically, being retained on modified

10 program status. (Opp. at 15-16.)

11

Prisoners retain those First Amendment rights not inconsistent with their status as

12 prison inmates or with legitimate penological objectives of the corrections system. Turner v.

13 Safley, 482 U.S. 78, 95 (1987). Thus, when a prison regulation impinges on a prisoner’s

14 First Amendment rights, the regulation nonetheless is valid, and no constitutional violation

15 occurs, if the regulation is reasonably related to legitimate penological objectives. Id. at 89.

16

As an initial matter, defendants argue that requiring plaintiff to sign the CDC-128-B

17 pledge as a prerequisite to returning to a normal program did not unconstitutionally abridge

18 plaintiff’s First Amendment right to express his political beliefs because, contrary to

19 plaintiff’s assertions, the pledge does not impose “endless punishment” or “unspecified

20 discipline” on those who sign it, nor does it ask questions about other inmates. The Court

21 agrees. The language of the pledge requires only that the inmate document his intent to

22 program without violence and acknowledge that the program-review process is ongoing. See

23 supra at 4:14-5:3.

24

Defendants further assert that plaintiff has not produced evidence showing he was

25 forced, in violation of his First Amendment rights, to choose between signing the pledge or

26 being punished. In particular, defendants point out that for many months plaintiff chose not 27 to sign the pledge but was never subjected to punishment as a result. Rather, he simply was 28 maintained on modified program status. The Court agrees that plaintiff’s assertions of

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United States District Court For the Northern District of California

1 punishment are unsupported; the undisputed evidence shows the modified program was

2 implemented as a security measure and not as a form of punishment, and that inmates were

3 not forced to sign the pledge merely because they were offered the incentive of returning to a

4 normal program if they did so.

5

For the foregoing reasons, the Court finds plaintiff has not created a triable issue with

6 respect to whether the pledge requirement impinged upon his First Amendment rights. Even

7 if there was such an impingement, however, the Court further finds, as discussed below, that

8 no constitutional violation occurred, because the pledge requirement was reasonably related

9 to legitimate penological objectives.

10

1. The Turner Test

11

In Turner v. Safley, the Supreme Court identified four factors for courts to consider

12 when determining whether a regulation is reasonably related to legitimate penological

13 interests: (1) whether there is a “valid, rational connection between the prison regulation and

14 the legitimate governmental interest put forward to justify it”; (2) “whether there are

15 alternative means of exercising the right that remain open to prison inmates”; (3) “the impact

16 accommodation of the asserted constitutional right will have on guards and other inmates and

17 on the allocation of prison resources generally”; and (4) the “absence of ready alternatives,”

18 or, in other words, whether the rule at issue is an “exaggerated response to prison concerns.”

19 Turner, 482 U.S. at 89-90.

20

The task in considering the Turner factors is not to balance the four factors, but to

21 determine whether the state shows a reasonable, rather than simply logical, relationship

22 between the policy and legitimate penological objectives. Beard v. Banks, 548 U.S. 521, 533

23 (2006). While all justifiable inferences must be drawn in the prisoner’s favor with respect to

24 matters of disputed fact, in disputed matters of professional judgment the court’s inferences

25 must accord deference to the views of prison authorities. Id. at 529. Unless a prisoner can

26 point to evidence showing the policy is not reasonably related to legitimate penological 27 objectives, sufficient to allow him to prevail on the merits, he cannot prevail at the summary 28 judgment stage. Id. at 530.

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United States District Court For the Northern District of California

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a. First Turner Factor

2

With respect to the first Turner factor, the initial burden is on defendants to put forth a

3 “common-sense” connection between their policy and a legitimate penological interest. See

4 Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999). If defendants do so, plaintiff must

5 present evidence that refutes the connection. Id. Defendants must then present enough

6 counter-evidence to show that the connection is not “so remote as to render the policy

7 arbitrary or irrational.” Id.

8

Here, defendants argue that their policy of requiring inmates to interview and sign the

9 CDC-128-B pledge before returning to a normal program bears a common-sense connection

10 to the legitimate penological interest of maintaining prison security. It is undisputed that

11 prison security is a legitimate penological interest. See Turner, 482 U.S. at 91; Mauro v.

12 Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc), cert. denied, 529 U.S. 1018 (2000)

13 (“It is beyond question that both jail security and rehabilitation are legitimate penological

14 interests.”). Additionally, the Court finds, for the following reasons, that the undisputed

15 evidence produced herein shows the pledge requirement had a valid, rational connection to

16 institutional security.

17

As evidenced by the declarations of defendant Ponder and Lt. Celaya, prison officials

18 used interviews to investigate the July 14, 2005 stabbing, as well as to identify inmates

19 showing a willingness to participate in normal programming without violence. Additionally,

20 prison officials believed that inmates who agreed to sign the pledge were signaling their

21 willingness to program positively and not engage in violence, as well as their willingness to

22 participate in the program-review process. Inmates with unsuccessful interviews and those

23 who refused to sign the pledge were not considered eligible to return to a normal program

24 because prison officials either considered them a threat or could not assess what threat they

25 posed to other inmates or staff.

26

Further, the pledge requirement was not put in place simply as a routine matter in a

27 prison facility with no history of violence; instead, it was a considered response to a history

28 of violence at SVSP, and in particular in Facility C, that had led to lockdowns and modified

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United States District Court For the Northern District of California

1 programming for a number of years. As set forth in Ponder’s October 17, 2005

2 memorandum to Facility C inmates, the July 14, 2005 stabbing event was just the latest in a

3 string of violent incidents in Facility C. Moreover, the undisputed evidence shows that

4 following the stabbing incident and through June 2006, there were several other documented

5 threats and assaults that took place at SVSP, and in Facility C, which further threatened the

6 safety and security of the institution and hindered the ability of staff to return Facility C to

7 normal programming. (Celaya Decl. ¶¶ 7-13 (listing occurrences).)

8

Ponder’s October 17, 2005 memorandum also reflects the belief of prison officials that

9 the ongoing violence at SVSP was being tolerated by inmates due to gang politics and peer

10 pressure within the inmate population. As a result, prison officials determined they would

11 have to try to break that tolerance and, in so doing, the inmates’ acceptance of prison

12 violence. Consequently, the pledge requirement was used to differentiate between those

13 inmates who were willing to commit to programming non-violently and those who were not.

14

Although plaintiff claims the pledge requirement was used to punish him and,

15 therefore, was not rationally connected to legitimate penological objectives, he does not

16 dispute the following: (1) the pledge assisted prison officials in documenting and separating

17 inmates who were willing to program without violence; (2) even after he refused to sign the

18 pledge he was placed on a list for further administrative review of his programming potential;

19 and (3) in addition to refusing to sign the pledge, plaintiff had a disciplinary history of

20 disobeying orders and threatening inmates and staff, and of interacting with gang members

21 on the yard. (Pl.s’ Depo. at 129:21-23 (acknowledging he was accused of threatening

22 inmates), 131:22-124 (acknowledging fighting with inmate), 205:3-15 (acknowledging

23 “hanging out” with gang members on prison yard), 235:2-23 (acknowledging refusal to

24 work); 237:10-21 (acknowledging rules violation report and loss of credits for threatening

25 staff), 244:8-246:8 (acknowledging refusal to comply with direct order from staff), 249:21-

26 250:3 (acknowledging refusal to work), 252:11-20, 259:18-261:6 (acknowledging refusal to 27 participate in mandatory DNA testing), 261:9-262:2 (acknowledging battery on inmate), 28 264:2-22 (acknowledging he was found guilty of obstructing a peace officer).) Based on

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1 these undisputed facts, prison officials could rationally conclude, in the interest of

2 institutional security, that plaintiff should not be returned to a normal program until he signed

3 the pledge.

4

According deference to the views of prison authorities, see Beards, 548 U.S. at 530,

5 the Court finds the decision by prison officials to place inmates, such as plaintiff, who would

6 not sign the CDC-128-B pledge and had a disciplinary history of violations involving threats

7 and disobeying orders, at the bottom of the list for consideration to be returned to a normal

8 program, was a common-sense approach to addressing the systemic problem of unsafe prison

9 conditions in Facility C. As plaintiff does not present evidence that refutes a common-sense

10 connection between the pledge requirement and the legitimate penological objective of

11 institutional security, the first Turner factor weighs in favor of upholding the pledge

12 requirement.

13

b. Second Turner Factor

14

The second factor identified by Turner for purposes of determining the reasonableness

15 of a restriction “is whether there are alternative means of exercising the right that remain

16 open to the prison inmates.” Turner, 482 U.S. at 90. If such alternative means remain open,

17 the court should be particularly conscious of the measure of judicial deference owed to

18 corrections officials. Id.

19

Defendants argue that asking plaintiff to sign the CDC-128-B pledge as an indication

20 of his willingness to program without violence did not foreclose plaintiff from alternative

21 means of exercising his First Amendment right to express his political beliefs. In particular,

22 defendants point out that plaintiff remained free to refuse to sign the pledge and did so,

23 thereby exercising his First Amendment rights. Further, defendants argue, there is no

24 evidence that the pledge required plaintiff to adopt a position not already required by prison

25 rules and regulations, or that plaintiff was prohibited from complaining, officially or to other

26 inmates, about his objection to the pledge requirement.

27

In response, plaintiff asserts that the pledge foreclosed his ability to express his

28 political beliefs because his attempts to pursue administrative grievances and complaints

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1 about the pledge were rejected, he was threatened with discipline if he continued to pursue

2 the grievances, and the pledge itself required that he waive his First Amendment rights or be

3 punished.

4

Plaintiff has not produced evidence that creates a triable issue with respect to his claim

5 that the pledge foreclosed him from alternative means of exercising his First Amendment

6 rights. As noted, the language of the pledge itself neither requires an inmate to waive First

7 Amendment rights nor imposes punishment without a hearing. Rather, it merely requires the

8 inmate to pledge his intent to follow prison rules and regulations, not commit violence, and

9 acknowledge that the program-review process was ongoing. Further, while plaintiff’s

10 administrative appeals and complaints were rejected, it was not because he refused to sign

11 the pledge. The undisputed evidence produced by plaintiff shows his grievances either were

12 reviewed and rejected on the merits, or were rejected for procedural reasons, with plaintiff

13 being warned that if he did not follow proper procedures in the future he would face the

14 possibility of disciplinary action. (Opp. Exs. D & E.)

15

Accordingly, because the pledge did not foreclose plaintiff from exercising his First

16 Amendment right to express his political beliefs, the second Turner factor weighs in favor of

17 upholding the pledge requirement.

18

c. Third Turner Factor

19

The third Turner factor requires the Court to consider “the impact accommodation of

20 the asserted constitutional right will have on guards and other inmates and on the allocation

21 of prison resources generally.” Turner, 482 U.S. at 91. Defendants argue that

22 accommodating plaintiff’s asserted First Amendment right to refuse to sign the pledge and

23 still be returned to a normal program would negatively impact prison staff and other inmates

24 by interfering with defendants’ efforts to return Facility C to a normal program and maintain

25 the safety and security of the institution. Specifically, defendants assert that allowing an

26 inmate who refused to sign the pledge to return to a normal program would have made the 27 programming plan ineffective, as there would have been no incentive for any inmate to 28 interview or sign the pledge. Consequently, prison officials would not be able to obtain their

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United States District Court For the Northern District of California

1 goal of turning Facility C into a safer and more secure facility by identifying those inmates

2 who were willing to commit to programming without violence.

3

In response, plaintiff argues that allowing him to return to a normal program despite

4 his refusal to sign the pledge would not have adversely impacted prison officials’ attempts to

5 create a safe environment in Facility C, because other inmates who did not sign the pledge

6 were allowed to return to a normal program. In support of his contention, plaintiff submits

7 declarations from four inmates who state they were returned to normal programming without

8 being required to sign the pledge. (Opp. at 22-23 & Ex. H (Decls. of Clarke, Frazier, Dotton

9 and Brown).) Defendants contend these declarations are insufficient to create a triable issue

10 because they provide no information with respect to those inmates’ disciplinary histories,

11 propensities for violence, threat levels, or programming capabilities. By contrast, as noted

12 above, plaintiff has an undisputed disciplinary history of disobeying staff orders, making

13 threats, and committing violence in prison. Thus, defendants argue, in light of plaintiff’s

14 refusal to sign the pledge and his disciplinary history, it was reasonable for prison officials to

15 classify him as an unknown risk to prison staff and other inmates, and subject him to further

16 administrative review before he could be returned to a normal program.

17

The Court finds plaintiff has failed to produce evidence that creates a triable issue

18 with respect to plaintiff’s claim that accommodating his asserted First Amendment right to be

19 returned to a normal program without signing the pledge would not have adversely affected

20 prison officials’ attempts to return Facility C to a safe and secure facility. Accordingly, the

21 third Turner factor weighs in favor of upholding the pledge requirement.

22

d. Fourth Turner Factor

23

The fourth Turner factor requires the court to consider whether there is an absence of

24 ready alternatives to the prison regulation. The burden is on the prisoner challenging the

25 regulation, not on prison officials, to show there are obvious, easy alternatives to the

26 regulation. Turner, 482 U.S. at 91. “This is not a ‘least restrictive alternative’ test: prison 27 officials do not have to set up and then shoot down every conceivable alternative method of 28 accommodating the claimant’s constitutional complaint.” Id. Instead, the proper inquiry is

14

United States District Court For the Northern District of California

1 “whether the prisoner has pointed to some obvious regulatory alternative that fully

2 accommodates the asserted right while not imposing more than a de minimis cost to the valid

3 penological goal.” Overton v. Bazzetta, 539 U. S. 126, 135-36 (2003); see Mauro v. Arpaio,

4 188 F.3d 1054, 1063 (9th Cir. 1999) (finding in favor of defendants on fourth Turner factor

5 where plaintiff failed to point to alternative that accommodated his rights at de minimis cost

6 to security interests).

7

Plaintiff asserts the CDC-128-B pledge was an exaggerated response to institutional

8 security concerns because signing the pledge cannot prevent future violence. As an

9 alternative, plaintiff suggests that “an obvious and easy way” for prison officials to achieve

10 institutional security is to retain “dedicated” staff of “skilled” employees who have a “high

11 degree of morale.” (Opp. at 24-25.)

12

Defendants acknowledge the pledge was not a panacea for preventing prison violence;

13 they argue, however, that it was a reasonable means of attempting to create a safer and more

14 secure environment in Facility C, because it assisted prison officials in assessing an inmate’s

15 willingness to program without violence. Defendants further argue that plaintiff has not

16 shown an easy alternative to the pledge requirement because his suggested alternative does

17 not directly assist prison officials either with assessing which inmates have programming

18 potential or with returning the affected facilities to normal programming. Moreover,

19 defendants assert, plaintiff’s suggestion is not an “alternative” at all, because maintaining the

20 type of staff suggested by plaintiff has always been the policy of the CDCR. See Cal. Code

21 Regs., tit. 15, §§ 3391-3416 (governing employee conduct and hiring practices).

22

The Court finds plaintiff has not put forth a ready alternative to the pledge

23 requirement that would accommodate his First Amendment rights at a de minimis cost to

24 prison officials’ legitimate security concerns. Accordingly, the fourth Turner factor weighs

25 in favor of upholding the pledge requirement.

26

2. Conclusion

27

For the reasons discussed above, the Court concludes plaintiff has not created a

28 genuine issue of material fact with respect to his claim that defendants violated his First

15

United States District Court For the Northern District of California

1 Amendment rights by requiring that he sign the CDC-128-B pledge before being returned to

2 a normal program. In particular, plaintiff has not produced evidence that creates a triable

3 issue with respect to whether the pledge requirement infringed plaintiff’s right to express his

4 political beliefs. Moreover, defendants have shown that the pledge requirement is reasonably

5 related to legitimate penological objectives. Accordingly, defendants are entitled to summary

6 judgment on plaintiff’s First Amendment claim.

7 C. Fourteenth Amendment Claim

8

Plaintiff claims his right to equal protection under the Fourteenth Amendment was

9 violated when prison officials treated him differently than similarly situated inmates by

10 retaining him on modified program status when he refused to sign the CDC-128-B pledge.

11

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

12 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

13 essentially a direction that all persons similarly situated should be treated alike.” City of

14 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Where a prisoner claims his

15 right to equal protection has been violated, the proper question for this Court’s determination

16 is that set forth in Turner v. Safley, supra, specifically, whether the regulation or practice

17 claimed to violate the prisoner’s right to equal protection is reasonably related to legitimate

18 penological interests. See Washington v. Harper, 494 U.S. 210, 223-25 (1990); see, e.g.,

19 Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008) (holding Turner standard must be

20 applied to prisoner’s claim of disparate treatment based on religion).4 To succeed on an

21 equal protection claim, a prisoner must show that officials intentionally acted in a

22 discriminatory manner. See More v. Farrier, 984 F.2d 269, 271-72 (8th Cir. 1993) (holding

23 that absent evidence of invidious discrimination federal courts should defer to judgment of

24 prison officials). 25

26

4The one exception to application of the Turner standard to a prisoner’s equal

27

protection claims is implicated where a prisoner alleges the violation of his right to racial equality; prison officials must demonstrate that race-based classifications are narrowly

28

tailored to serve a compelling state interest. Johnson v. California, 543 U.S. 499, 511-13 (2005). No race-based classification is alleged herein.

16

United States District Court For the Northern District of California

1

Thus, to defeat summary judgment on his equal protection claim, plaintiff must set

2 forth specific facts showing there is a triable issue as to whether (1) he was treated differently

3 from similarly situated inmates; (2) such unequal treatment was not reasonably related to a

4 legitimate penological objective; and (3) such unequal treatment was the result of invidious

5 discrimination against plaintiff.

6

As an initial matter, plaintiff asserts he was treated differently than similarly situated

7 inmates who did not sign the CDC-128-B pledge but nevertheless were allowed to return to

8 normal programming. In support of this contention, plaintiff has submitted the declarations

9 of inmates Clarke and Frazier. (Opp. at 26 & Ex. H.) The declaration of Clarke, however,

10 cannot create a triable issue with respect to plaintiff’s claim because it is irrelevant thereto.

11 Specifically, as defendants point out, Clarke’s declaration pertains to his refusal, in 2001, to

12 interview or sign a pledge concerning the 2001 murder of an inmate in the Facility A dining

13 room at SVSP. (See Ex. H Clarke Decl.) The declaration thus has no bearing on prison

14 officials’ use of the pledge requirement with respect to the 2005 stabbing of two correctional

15 officers by an inmate in Facility C. Additionally, Frazier’s declaration is insufficient to

16 create a triable issue as to plaintiff’s claim of differential treatment because it provides no

17 information concerning Frazier’s disciplinary history or propensity for violence. As noted,

18 plaintiff had a history of disciplinary problems, which prison officials relied upon in addition

19 to plaintiff’s refusal to sign the CDC-128-B pledge when deciding to retain him on modified

20 program status.

21

Further, as discussed above in detail, plaintiff has not produced evidence that creates a

22 triable issue with respect to the legitimate penological objectives put forth by defendants to

23 justify the pledge requirement. In particular, the Court has found the decision herein at issue

24 was a common-sense approach to addressing the systemic problem of unsafe prison

25 conditions in Facility C, specifically, the decision by prison officials to place at the bottom of

26 the list for consideration to be returned to a normal program those inmates, such as plaintiff, 27 who would not sign the CDC-128-B pledge and had a disciplinary history of violations 28 involving threats and disobeying orders.

17

United States District Court For the Northern District of California

1

Finally, plaintiff’s argument that prison officials acted with discriminatory intent

2 because they allegedly failed to prevent the 2005 stabbing incident is without merit. Not

3 only is the assertion factually unsupported, it is irrelevant to plaintiff’s equal protection claim

4 because it has no bearing on defendants’ state of mind when they decided to retain plaintiff

5 on modified program status for refusing to sign the pledge.

6

In sum, plaintiff has failed to present evidence that creates a triable issue with respect

7 to his claim that he was treated differently from similarly situated inmates in violation of the

8 Fourteenth Amendment. Accordingly, defendants are entitled to summary judgment on

9 plaintiff’s equal protection claim.

10 D. Eighth Amendment Claim

11

As noted, plaintiff was denied outdoor exercise during the time he was on modified

12 program status, a period of approximately thirteen months. Plaintiff claims such denial

13 violated his rights under the Eighth Amendment.

14

The Constitution does not mandate comfortable prisons, but neither does it permit

15 inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner

16 receives in prison and the conditions under which he is confined are subject to scrutiny under

17 the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). Exercise is one of

18 the basic human necessities protected by the Eighth Amendment. LeMaire v. Maass, 12 F.3d

19 1444, 1457 (9th Cir. 1993).

20

A prison official violates the Eighth Amendment when two requirements are met:

21 (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the prison official

22 possesses a sufficiently culpable state of mind. Farmer, 511 U.S. at 834.

23

1. Sufficiently Serious Deprivation

24

In determining whether a deprivation of a basic necessity is sufficiently serious to

25 satisfy the objective component of an Eighth Amendment claim, a court must consider the

26 circumstances, nature, and duration of the deprivation. The Ninth Circuit has continuously 27 held that the long-term deprivation of outdoor exercise for prisoners constitutes a sufficiently 28 serious deprivation under the Eighth Amendment. See LeMaire, 12 F.3d at 1458 (holding

18

United States District Court For the Northern District of California

1 deprivation of outdoor exercise for “considerable periods of time” during five-year period of

2 incarceration meets objective requirement of Eighth Amendment claim); Lopez v. Smith, 203

3 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc) (holding denial of outdoor exercise for six and

4 one-half weeks meets objective prong of Eighth Amendment deliberate indifference claim);

5 Allen v. Sakai, 48 F.3d 1082, 1087-88 (9th Cir. 1994) (holding denial of outdoor exercise for

6 six weeks to prisoner in indefinite segregation sufficient to satisfy objective requirement of

7 Eighth Amendment analysis), cert. denied, 514 U.S. 1065 (1995); Toussaint v. Yockey, 722

8 F.2d 1490, 1493 (9th Cir. 1984) (holding denial of outdoor exercise for over one year to

9 prisoners assigned to administrative segregation raised “substantial constitutional question”).

10

Defendants argue that the denial of outdoor exercise to plaintiff for more than a year

11 was not a sufficiently serious deprivation within the meaning of the Eighth Amendment

12 because the denial resulted from plaintiff’s choosing not to sign the CDC-128-B pledge.

13 Specifically, defendants maintain, plaintiff was “the master of his own fate” and, therefore,

14 by his declining numerous opportunities to gain access to outdoor exercise by signing the

15 pledge, “it is logical to conclude that exercise must not have been necessary for him between

16 July 14, 2005 and August 31, 2006 (the period at issue).” (Reply at 4:27-5:2.)

17 Consequently, defendants reason, the deprivation could not have been sufficiently serious to

18 satisfy the objective component of an Eighth Amendment violation.

19

Under the facts alleged by plaintiff, and viewing them in the light most favorable to

20 him, the Court finds defendants’ argument unpersuasive. The Ninth Circuit has recently

21 made clear that a sufficiently serious deprivation may be established even when such

22 deprivation has resulted from an inmate’s refusal to abide by a prison policy that serves

23 legitimate penological interests. See Foster v. Runnels, No. 06-15719, 2009 WL 260972, at

24 *5 (9th Cir. Feb. 5, 2009) (finding prisoner established sufficiently serious deprivation under

25 objective prong of Eighth Amendment inquiry where he repeatedly was denied food due to

26 his refusal to comply with legitimate prison policy prohibiting inmates from covering cell

27 windows).

28

Accordingly, based on the undisputed fact that plaintiff was denied outdoor exercise

19

United States District Court For the Northern District of California

1 for the thirteen months he was on modified program status, the Court finds plaintiff has met

2 the objective requirement of the Eighth Amendment inquiry.

3

2. Sufficiently Culpable State of Mind

4

A prison official cannot be held liable under the Eighth Amendment for denying an

5 inmate humane conditions of confinement unless the standard for criminal recklessness is

6 met, i.e., the official knows of and disregards an excessive risk to inmate health or safety.

7 See Farmer, 511 U.S. at 837. The official must both be aware of facts from which the

8 inference could be drawn that a substantial risk of serious harm exists, and he must also draw

9 the inference. See id. Prison officials who lacked knowledge of a risk, however, cannot be

10 said to have inflicted punishment. Id. at 844. Consequently, prison officials can prove they

11 were unaware even of an obvious risk to inmate health or safety by showing, for example,

12 “that they did not know of the underlying facts indicating a sufficiently substantial danger

13 and that they were therefore unaware of a danger, or that they knew the underlying facts but

14 believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or

15 nonexistent.” Id.

16

Additionally, prison officials who actually knew of a substantial risk to inmate health

17 or safety may be found not to have acted with deliberate indifference if they responded

18 reasonably to the risk, even if the harm ultimately was not averted. Id. “A prison official’s

19 duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates

20 due regard for prison officials’ unenviable task of keeping dangerous men in safe custody

21 under humane conditions.” Id. at 844-45 (internal quotations and citations omitted).

22 Consequently, prison officials who act reasonably cannot be found liable for an Eighth

23 Amendment violation. Id. at 845.

24

Defendants first argue they did not know of and disregard an excessive risk to

25 plaintiff’s health and safety by denying him outdoor exercise because plaintiff could have

26 availed himself of exercise at any time by signing the CDC-128-B pledge and his refusal to 27 do so thus indicated he was not suffering serious harm from the deprivation. In response, 28 plaintiff asserts only that he was “excessively confined” to his cell for thirteen months.

20

United States District Court For the Northern District of California

1 (Opp. at 8.) Plaintiff, however, has not produced evidence showing that, other than prison

2 officials’ awareness of plaintiff’s general objection to the denial of exercise, such officials

3 had reason to believe plaintiff faced a substantial danger to his health from the lack of

4 exercise. Thus, even though prison officials knew plaintiff was being denied access to

5 outdoor exercise because of his refusal to sign the pledge, the undisputed evidence shows

6 they believed the risk of harm to plaintiff was “insubstantial or nonexistent,” Farmer, 511 at

7 844, because plaintiff could have signed the pledge at any time and gained immediate access

8 to outdoor exercise.

9

Defendants further argue they did not act with deliberate indifference because they

10 acted reasonably by denying plaintiff access to exercise based on legitimate security concerns

11 in Facility C. Prison officials may limit or deny exercise for security reasons. See LeMaire,

12 12 F.3d at 1458 (upholding long-term denial of outdoor exercise to prisoner who represented

13 “grave security risk” because of history of extensive serious misconduct); Hayward v.

14 Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (upholding five-month deprivation of outdoor

15 exercise following lockdown initiated in response to “genuine emergency”), cert. denied, 451

16 U.S. 937 (1981); cf. Spain, 600 F.2d at 199 (upholding right of inmates in indefinite

17 segregation to outdoor exercise “one hour per day, five days a week unless inclement

18 weather, unusual circumstances, or disciplinary needs made that impossible.”) (emphasis

19 added). Here, defendants have produced uncontradicted evidence of the following: (1)

20 Facility C was placed on lockdown and then modified program in response to a “genuine

21 emergency,” (2) there was a rational connection between requiring inmates to sign the CDC-

22 128-B pledge and restoring institutional security, (3) plaintiff repeatedly refused to sign the

23 pledge, (4) plaintiff had a lengthy disciplinary history, which included refusing to obey staff

24 orders and threatening staff and other inmates, and (5) as a result of plaintiff’s refusal to sign

25 the pledge and his disciplinary history, defendants were unable to assess the level of threat

26 plaintiff posed to staff and other inmates should he be returned to a normal program. Further, 27 it is undisputed that for almost a year after the July 14, 2005 stabbing incident, through June 28 2006, there were several other documented threats and assaults that took place at SVSP and

21

United States District Court For the Northern District of California

1 in Facility C that threatened the safety and security of the institution and hindered the ability

2 of staff to return Facility C to normal programming. (Celaya Decl. ¶¶ 7-13 (listing

3 occurrences).)

4

When restricting exercise privileges of inmates who pose security concerns, “prison

5 officials are authorized and indeed required to take appropriate measures to maintain prison

6 order and discipline and protect staff and other prisoners . . .” LeMaire, 12 F.3d at 1458. For

7 the reasons discussed above, the Court finds plaintiff has failed to create a triable issue with

8 respect to whether defendants subjectively acted with deliberate indifference when they

9 denied plaintiff access to outdoor exercise while he was on modified program status.

10 Accordingly, defendants are entitled to summary judgment on plaintiff’s Eighth Amendment

11 claim.5

12 E. Plaintiff’s Motions for Judicial Notice

13

Plaintiff has filed a motion asking the Court to take notice of portions of his

14 deposition transcript, which portions he asserts are not “true and correct” because they have

15 been tampered with by defendants. Plaintiff has not, however, specifically identified the

16 relevant portions or attached them to his motion, nor does he state that defendants have in

17 any way relied on such material in support of their summary judgment motions.

18

The Court previously explained to plaintiff, in response to a prior motion filed by

19 plaintiff in which he asked the Court to review the deposition transcript for errors, that if

20 plaintiff objects to defendants’ characterization of statements made by plaintiff at his

21 deposition, or their characterization of exhibits submitted by plaintiff at his deposition, and

22 such objections are relevant to plaintiff’s opposition to defendants’ motion for summary

23 judgment, plaintiff must raise his objections in his opposition and attach thereto a copy of

24 those portions of the deposition transcript or exhibits. (Order, filed Oct. 30, 2008, at 2:13-

25

26

5In light of the Court’s determination that defendants did not violate plaintiff’s constitutional rights under the First, Fourteenth or Eighth Amendments, the Court does not

27

reach defendants’ argument that they are entitled to qualified immunity on plaintiff’s claims. Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been

28

violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”)

22

United States District Court For the Northern District of California

1 17.)

2

As noted, however, plaintiff has not identified those portions of the deposition

3 transcript to which he objects and, more importantly, has not shown that defendants have

4 relied on such portions in support of their motions for summary judgment. Consequently, he

5 has not shown the alleged errors have any bearing on this Court’s determination of the merits

6 of defendants’ motions. Accordingly, plaintiff’s motion will be denied.

7

In addition to the above-described motion, plaintiff has filed a separate motion asking

8 the Court to take judicial notice, under Rule 201 of the Federal Rules of Evidence, of various

9 documents he filed in support of his December 17, 2008 opposition to defendants’ summary

10 judgment motions. As an initial matter, the Court notes that there is no need for the Court to

11 take judicial notice of the various sections of the California Code of Regulations submitted

12 by plaintiff, or the first page of the Court’s Order of Service in this matter, as they are not

13 “adjudicative facts” within the meaning of Rule 201.

14

With respect to the other documents submitted by plaintiff, which appear to be inmate

15 appeals or complaints submitted to prison officials after the instant action was filed, the

16 Court agrees with defendants that such documents do not meet the requirements for judicial

17 notice as the allegations therein are not facts that are “not subject to reasonable dispute.” See

18 Fed. R. Evid. 201(b). Further, many of the documents appear to be duplicative of documents

19 filed by plaintiff in support of his opposition to defendants’ motions for summary judgment.

20 Finally, to the extent plaintiff seeks judicial notice of documents concerning events that

21 occurred after this action was filed, plaintiff makes no showing as to their relevance to the

22 Court’s disposition of the claims raised by plaintiff herein. Accordingly, plaintiff’s motion

23 will be denied.

24

CONCLUSION

25

For the foregoing reasons, the Court orders as follows:

26

1. Defendants motions for summary judgment are hereby GRANTED and judgment

27 shall be entered in favor of each of the defendants. (Docket Nos. 22 & 43.)

28

2. Plaintiff’s motions for judicial notice are hereby DENIED. (Docket Nos. 55 & 56.)

23

United States District Court For the Northern District of California

1

This order terminates Docket Nos. 22, 43, 55 and 56.

2

The Clerk shall close the file.

3

IT IS SO ORDERED.

4 DATED: February 24, 2009 5 6

_____________________________ MAXINE M. CHESNEY United States District Judge

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 Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page1 of 18

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10

11 OTIS THOMAS,

) No. C 06-3581 MMC (PR)

)

12

) ORDER DENYING DEFENDANTS’

Plaintiff,

) MOTION FOR SUMMARY JUDGMENT

13

) ON QUALIFIED IMMUNITY GROUNDS;

v.

) DISMISSING AS MOOT PLAINTIFF’S

14

) CLAIMS FOR INJUNCTIVE RELIEF;

M.S. EVANS, Warden, et al., ) REFERRING CASE TO FEDERAL PRO

15

) BONO PROJECT FOR ASSIGNMENT OF

Defendants.

) COUNSEL; STAYING PROCEEDINGS

16

) PENDING APPOINTMENT OF

) COUNSEL; DIRECTIONS TO CLERK

17

)

)

18 ____________________________ ) (Docket No. 98)

19

20

On June 5, 2006, plaintiff, a California prisoner currently incarcerated at Centinela

21 State Prison and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C.

22 § 1983, alleging violation of his constitutional rights by prison officials at Salinas Valley

23 State Prison (“SVSP”). On July 5, 2006, plaintiff filed an Amended Complaint (“AC”),

24 which is the operative pleading herein.

25

In its Order Granting Defendants’ Motion for Summary Judgment, filed February 24,

26 2009, the Court granted summary judgment in favor of all defendants on plaintiff’s First

27 Amendment, Eighth Amendment and Equal Protection claims. (Docket No. 62.) Thereafter,

28 plaintiff appealed the Court’s ruling with respect to his Eighth Amendment claim.

Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page2 of 18

United States District Court For the Northern District of California

1

On appeal, the Ninth Circuit, in an opinion filed July 26, 2010, reversed the Court’s

2 grant of summary judgment on the Eighth Amendment claim. See Thomas v. Ponder, 611

3 F.3d 1144 (9th Cir. 2010). Specifically, the Ninth Circuit found, as a matter of law, that

4 prison officials knew of a substantial risk of serious harm to plaintiff’s physical and mental

5 health when they denied plaintiff exercise for a prolonged period during plaintiff’s

6 confinement in the maximum security housing unit. See id. at 1152. Additionally, the Ninth

7 Circuit found a triable issue of material fact existed, specifically, whether prison officials

8 acted reasonably when they denied plaintiff exercise during such period. See id. at 1153-55.

9 Accordingly, the Ninth Circuit remanded the case to this Court for further proceedings.

10

Thereafter, the Court reopened the action and referred the matter to Magistrate Judge

11 Nandor Vadas for settlement proceedings, which proceedings took place on March 22, 2011.

12 (Docket Nos. 78, 81.) The parties did not reach a settlement agreement. (Docket No. 89.)

13

Now pending before the Court is defendants’ motion for summary judgment on

14 grounds of qualified immunity (“Mot. Summ. J. III”).1 Plaintiff has filed an opposition to the

15 motion, and defendants have filed a reply.

16

FACTUAL BACKGROUND2

17

The events underlying plaintiff’s claims occurred in 2005 to 2006 in Facility C, a level

18 IV maximum security housing unit, at SVSP. At all relevant times herein, plaintiff was a

19 level IV prisoner housed in Facility C, defendant G. Ponder (“Ponder”) was the captain of

20 Facility C, defendant M. Kircher (“Kircher”) was a correctional officer in Facility C, and

21 defendant M. S. Evans (“Evans”) was the warden at SVSP. (AC at 2.)

22 //

23 //

24

25

1 The instant motion is defendants’ third motion for summary judgment in this action.

26

On April 11, 2007, defendants filed a motion for summary judgment on plaintiff’s First Amendment and Equal Protection claims (“Mot. Summ. J. I”); on August 7, 2008, defendants

27

filed a motion for summary judgment on plaintiff’s Eighth Amendment claim (“Mot. Summ. J. II”).

28

2 Unless otherwise noted, the facts set forth in this section are undisputed.

2

Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page3 of 18

United States District Court For the Northern District of California

1 A. Modified Program for Facility C Inmates

2

Inmates are housed in Facility C for various reasons, including a history of assaultive

3 behavior and disciplinary actions, gang-related convictions, and lengthy or life sentences.

4 (Decl. Def. Ponder Supp. Defs.’ Mot. Summ. J. III (“Ponder Decl.”) ¶¶ 26, 27.) On July 14,

5 2005, in Facility C, an inmate, using a homemade knife, stabbed and almost killed two

6 correctional officers. (Id. ¶¶ 7, 11.) As a result of the incident, SVSP was placed on

7 lockdown. (Id. ¶ 53.) Eventually, the lockdown was lifted for all housing units with the

8 exception of Facility C which, before the incident, had been in the process of returning to a

9 normal program after a previous violent incident. (Id. ¶¶ 53, 54.) Facility C remained on

10 lockdown until September 9, 2005, when it transitioned from lockdown to a “modified

11 program.” (Id.)

12

During a modified program, Facility C maintains essential services such as health

13 care, hygiene, meals, hearings, and access to courts. (Id. ¶ 14.) Other services such as

14 canteen, quarterly packages, recreation, visiting, phone calls, and religious services are

15 limited, suspended, or offered to certain inmates based on various risk-assessment factors.

16 (Id.)

17

A modified program allows time for staff to inspect the crime scene, collect and

18 preserve evidence, gather intelligence, identify suspects and witnesses, obtain statements,

19 document the incident, conduct searches, and evaluate overall operations. (Id. ¶ 13.)

20 B. Plan to Return Facility C to Normal Program

21

In October 2005, SVSP completed the investigation of the July 14, 2005 stabbing

22 incident. (Id. ¶ 56.) On October 17, 2005, Ponder sent a memorandum to Facility C inmates,

23 updating them on the program status of Facility C and explaining what they would be

24 required to do to be returned to a normal program. The memorandum explained the

25 following steps were being taken in response to a recent history of ongoing violence in

26 Facility C:

27

Prior to the attempted murder of the two Correctional Officers, the facility was

operating under four separate modified programs. Over the last few years C

28

Facility has operated on continuing modification due to the violence within the

3

Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page4 of 18

United States District Court For the Northern District of California

1

facility. The motives of each disturbance have varied, however the singular

driving force behind each incident has been level IV inmate’s [sic] politics

2

which are predominately gang related. The inmate population succumbs to this

peer pressure and condones this violence as acceptable in a level IV 180

3

general population setting. This attitude and violence has continued over a

substantial period of time. During meetings with various inmates on the

4

facility during classification and tours of the units, inmates repeatedly have

confirmed this verbally as well as by their actions to staff. This is

5

unacceptable. This jeopardizes the safety and welfare of every person who

lives and works on the facility.

6

Although incarcerated, each inmate is expected to be a law abiding citizen, the

7

choice to program and rehabilitate oneself falls directly on each individual

inmate.

8

I am developing a process to help the facility work towards providing inmates

9

that want to program without violence an opportunity to do so. The choice to

program will be in the hands of each individual inmate. The first step in this

10

process will be interviews. The next step will be your commitment to program

without violence and verification of this commitment by signing that fact. The

11

next process will involve Correctional Officers identifying inmates that have

shown willingness to program and providing a list of those inmates to

12

supervisory staff.

13

Inmates that fail to act in accordance with Departmental rules and Institution

procedures will result in housing and program changes. Inmates are advised

14

that their privileges and access to programs will be curtailed until you as an

individual successfully comply with this process. 15

In closing, your program is in your own hands. Program is available to any and

16

all general population inmates. All you need is the willingness and

commitment to program without violence.

17

(Ponder Decl., Ex. 1 at MSJ-QI 4.) 18

Ponder’s plan included interviewing each inmate in a private setting. (Ponder Decl. 19

¶ 58.) Each inmate was required to answer a set of pre-determined questions from an 20

interview form. (Id.) At the end of the interview, each inmate was required to sign his name 21

at the bottom of the interview form. (Id.) 22

At each interview, the inmate would also be asked to sign a CDC-128-B “pledge.”3 23

(Id. ¶ 60.) The CDC-128-B pledge stated: 24

25

26

3 “CDC-128-B” is the form number used by the California Department of Corrections

27

and Rehabilitation (“CDCR”) to identify departmental memoranda, but not the contents thereof. The Court refers to the CDC-128-B included in Exhibit 1 to defendant Ponder’s

28

declaration, and which constitutes the basis for much of the dispute herein, as the “CDC-128B pledge.”

4

Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page5 of 18

United States District Court For the Northern District of California

1

I am currently housed within Facility ‘C’ Salinas Valley State Prison. I am

also aware that this facility is on modified program status based upon several

2

acts of violence having occurred within the past 15 months.

3

By signing this document, I am advising staff that I want to participate in the

program review process being implemented at this time. I am also stipulating

4

that I want to “do my own time” and will program by not participating in gang

violence.

5

I have been advised that my failure to act in accordance with institutional rules

6

and procedures may result in program and housing changes. I am aware that

during the time I participate in the program review process, I will retain my

7

established work/privilege group.

8

I am aware, if I am unassigned and I participate in the program review process

that my participation does not constitute a credit earning assignment. Further, I

9

understand that my privileges and access to programs will be curtailed until I

successfully complete this program and am returned to normal general

10

population program status.

11

I have been advised that the program review process is ongoing and that I will

be expected to maintain compliance with regulations to participate. During the

12

program review process I will be required to interact with other inmates of all

races and ethnicity during all out of cell activities. The process and my

13

participation in it, is on-going and monitered. [sic] During this period I

understand that my progress and suitability to remain in the program will be

14

monitored and evaluated by staff.

15 (Ponder Decl. Ex. 1 at MSJ-QI 15.)

16

The inmates who completed the pledge program were returned to a normal program,

17 including outdoor exercise. (Ponder Decl. ¶ 57.) According to defendants, the pledge

18 program was not difficult to complete. (Id.)

19

Inmates who did not complete the pledge program were placed at the bottom of the list

20 for further program review. (Id. at ¶ 65.) Inmates who failed the pledge program after two

21 tries were referred to a classification committee for appropriate programming and housing

22 needs. (Id. at ¶ 66.)

23 C. Plaintiff’s Refusal to Sign the CDC-128-B Pledge

24

Following defendant Ponder’s implementation of the above plan, plaintiff was

25 interviewed on November 2, 2005. (Id. ¶ 67.) Plaintiff answered all of the questions on the

26 interview form, after which he and a prison official signed the form. (Id., Ex. 1 at MSJ-QI

27 16-17.) The interview form included the following statement and question: “Programming

28 on a level IV general population yard requires participation without violence. Are you

5

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1 willing to commit to this type of program? If no, give details?” In response to this question

2 plaintiff wrote “Yes.” (Id.) To the question “Do you have any safety concerns?” plaintiff

3 answered “No.” (Id.) The question “If the facility were returned to normal program, could

4 you program without violence on a level IV general population yard with inmates from all

5 races/ethnics [sic] or past or present gang affiliations?” also appeared on the form, and in

6 response to this question plaintiff answered “Yes.” (Id.)

7

Additionally, at plaintiff’s November 2, 2005 interview, he was asked to sign the

8 CDC-128-B pledge, but refused to do so. (Ponder Decl., ¶ 67 & Ex. 1 at MSJ-QI 15.)

9 Subsequently, on November 4, 2005, Ponder sent a memorandum to plaintiff, informing him

10 he had failed to complete the interview process or had interviewed in such a manner that

11 prison staff could not determine the level of threat he posed to staff or inmates. (Id. ¶ 68 &

12 Ex. 1 at MSJ-QI 6.) As a result, plaintiff was informed:

13

[Y]ou will remain on modified program status to include personal hygiene

canteen draw only, no quarterly packages, no special purchase. Also due

14

to your refusal/failure to comply with the interview process and administrations

[sic] inability to ascertain your threat status you will be placed on non-contact

15

visiting. These modifications will remain in effect until further notice.

16 (Id.) Further, plaintiff was informed he would be placed at the bottom of the interview list to

17 be reviewed for program potential. (Id.)

18

Plaintiff was interviewed several times after November 4, 2005 but continued to

19 refuse to sign the CDC-128-B pledge. (Ponder Decl. ¶ 68.)

20

Plaintiff remained on modified program status until August 31, 2006, when he signed

21 the CDC-128-B pledge. (Ponder Decl. ¶ 73.) Soon thereafter, he was returned to a normal

22 program, including outdoor exercise. (Id.) As a result of being on modified program status,

23 plaintiff was denied outdoor exercise for almost 14 months.

24

DISCUSSION

25 A. Legal Standard

26

Summary judgment is proper where the pleadings, discovery, and affidavits show

27 there is “no genuine dispute as to any material fact and the movant is entitled to judgment as

28 a matter of law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the

6

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1 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

2 dispute as to a material fact is genuine if the evidence is such that a reasonable jury could

3 return a verdict for the nonmoving party. See id.

4

The court will grant summary judgment “against a party who fails to make a showing

5 sufficient to establish the existence of an element essential to that party’s case, and on which

6 that party will bear the burden of proof at trial[,] . . . since a complete failure of proof

7 concerning an essential element of the nonmoving party’s case necessarily renders all other

8 facts immaterial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving

9 party bears the initial burden of identifying those portions of the record that demonstrate the

10 absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving

11 party to “go beyond the pleadings, and by [his] own affidavits, or by the ‘depositions,

12 answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that

13 there is a genuine issue for trial.’” See id at 324 (citing Fed. R. Civ. P. 56(e) (amended

14 2010)).

15

For purposes of summary judgment, the court must view the evidence in the light most

16 favorable to the nonmoving party; if the evidence produced by the moving party conflicts

17 with evidence produced by the nonmoving party, the court must assume the truth of the

18 evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158

19 (9th Cir. 1999). The court’s function on a summary judgment motion is not to make

20 credibility determinations or weigh conflicting evidence with respect to a disputed material

21 fact. See T.W. Elec. Serv. Inc., v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th

22 Cir. 1987).

23 B. Eighth Amendment Claim/Qualified Immunity

24

The defense of qualified immunity protects “government officials . . . from liability

25 for civil damages insofar as their conduct does not violate clearly established statutory or

26 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 27 457 U.S. 800, 818 (1982). The rule of qualified immunity protects “‘all but the plainly 28 incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S. 194, 202

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1 (2001)4 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Officials can have a

2 “reasonable, but mistaken,” belief about what the law requires in any given situation.

3 Saucier, 533 U.S. at 206. “Therefore, regardless of whether the constitutional violation

4 occurred, the [official] should prevail if the right asserted by the plaintiff was not ‘clearly

5 established’ or the [official] could have reasonably believed that his particular conduct was

6 lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

7

A court considering a claim of qualified immunity must determine: (1) whether “a

8 plaintiff has alleged . . . a violation of a constitutional right,” and (2) whether “the right at

9 issue was clearly established at the time of defendant’s alleged misconduct.” See Pearson,

10 555 U.S. at 232 (internal quotation and citation omitted). Courts may exercise their

11 discretion in deciding which prong of the test to address first, in light of the particular

12 circumstances of the case. Id. at 236.

13

As discussed above, the Ninth Circuit previously found plaintiff had alleged a

14 violation of his Eighth Amendment rights. Consequently, this Court proceeds to the second

15 question: whether the right at issue was clearly established at the time defendants acted.

16

1. Clearly Established Law

17

The inquiry of whether a constitutional right was clearly established must be

18 undertaken in light of the specific context of the case, not as a broad general proposition. See

19 Saucier, 533 U.S. at 202. The relevant, dispositive inquiry in determining whether a right is

20 clearly established is whether it would be “clear to a reasonable officer that his conduct was

21 unlawful in the situation he confronted.” Id. If the law did not put the officer “on notice”

22 that his conduct would be clearly unlawful, summary judgment based on qualified immunity

23 is appropriate. Id.

24

To determine whether a right was clearly established, the court looks to “Supreme

25 Court and Ninth Circuit law existing at the time of the alleged act.” Community House, Inc.

26 v. Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citing Osolinski v. Kane, 92 F.3d 934, 936 (9th

27

28

4 Overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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1 Cir. 1996)). It is not necessary that a prior decision rule “the very action in question”

2 unlawful for a right to be clearly established. Anderson v. Creighton, 483 U.S. 635, 640

3 (1987); see, e.g., Watts v. McKinney, 394 F.3d 710, 713 (9th Cir. 2005) (stating, in context

4 of excessive force claim, “[t]he Supreme Court did not need to create a catalogue of all the

5 acts by which cruel and sadistic purpose to harm another would be manifest”); Jackson v.

6 McIntosh, 90 F.3d 330, 331-32 (9th Cir. 1996) (rejecting, in context of medical indifference

7 claim, defendants’ contention they were entitled to qualified immunity because there was no

8 clearly established law requiring them to provide kidney transplant to prisoner on dialysis;

9 holding defendants stated issue too narrowly).

10

The Ninth Circuit has continuously held that the long-term denial of outdoor exercise

11 for prisoners constitutes a sufficiently serious deprivation under the Eighth Amendment. See

12 Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc) (holding denial of outdoor

13 exercise for six and one-half weeks meets objective prong of Eighth Amendment deliberate

14 indifference claim); Allen v. Sakai, 48 F.3d 1082, 1087-88 (9th Cir. 1994) (holding denial of

15 outdoor exercise for six weeks to prisoner in indefinite segregation sufficient to satisfy

16 objective requirement of Eighth Amendment analysis); Toussaint v. Yockey, 722 F.2d 1490,

17 1493 (9th Cir. 1984) (holding denial of outdoor exercise for over one year to prisoners

18 assigned to administrative segregation raised “substantial constitutional question”). See also

19 Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (“We have held consistently that

20 ordinarily the lack of outside exercise for extended periods is a sufficiently serious

21 deprivation for Eighth Amendment purposes.”) (internal quotation and citation omitted).

22

This Court therefore finds the state of the law requiring prisoners not be deprived of

23 some access to outdoor exercise for extended periods was sufficiently clear to put defendants

24 “on notice” that continuing to deprive plaintiff of such exercise for almost 14 months was

25 unlawful. Saucier, 533 U.S. at 202. Indeed, the Ninth Circuit has already held, “as a matter

26 of law” in this very action, “the serious risk to [plaintiff’s] health posed by this extended 27 deprivation of a basic human necessity was ‘obvious’ to the prison officials.” Thomas v. 28 Ponder, 611 F.3d 1144, 1146 (9th Cir. 2010).

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1 2. Reasonable Belief that Conduct Was Lawful

2

Even if the violated right is clearly established, qualified immunity shields an officer

3 from suit when he “makes a decision that, even if constitutionally deficient, reasonably

4 misapprehends the law governing the circumstances [he] confronted.” Brosseau v. Haugen,

5 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205-06. If “the officer’s mistake as to what

6 the law requires is reasonable . . . the officer is entitled to the immunity defense.” Saucier,

7 533 U.S. at 205.

8

Thus, if the law is determined to be clearly established, the next question is whether,

9 “in light of those principles, a reasonable officer in [the defendant’s] position could have

10 believed his actions were lawful.” Act Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir.

11 1993). The defendant “bears the burden of establishing that his actions were reasonable.”

12 Maraziti v. First Interstate Bank of California, 953 F.2d 520, 523 (9th Cir. 1992).

13

Whether a reasonable official could have believed the action taken was lawful is a

14 mixed question of law and fact: “It involves an objective test of whether a reasonable official

15 could have believed that his conduct was lawful in light of what he knew and the action he

16 took.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir.

17 1995). “If there are genuine issues of material fact in issue relating to the historical facts of

18 what the official knew or what he did, it is clear that these are questions of fact for the jury to

19 determine.” Id. If the essential facts are undisputed, or no reasonable juror could find

20 otherwise, however, “then the question is appropriately one for the court.” Id. at 1100 (citing

21 Hunter v. Bryant, 502 U.S. 224, 227-28 (1991)).

22

Here, defendants support their actions on two grounds: (1) the level of violence in

23 Facility C; and (2) plaintiff’s mental health record, criminal record, and prison disciplinary

24 history. The Court addresses each in turn.

25

First, defendants assert, prison violence was a problem in Facility C during the period

26 at issue. (Ponder Decl. ¶¶ 8-12, 33, 50-56.) Specifically, defendants report Facility C had 27 almost 130 “incidents” in 2005 and that the number of “incidents” rose to almost 170 in 28 2006. (Id. ¶ 50.) Defendants essentially argue the pledge program was reasonable because it

10

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1 was aimed to “change the inmates’ mindset about prison violence, give them an opportunity

2 to accept responsibility for their actions, and encourage them to rehabilitate and program

3 positively.” (Mot. Summ. J. III at 21.) Defendants fail to establish, however, that the level

4 of “incidents” they confronted constituted “unusually high levels” of violence or a “genuine

5 emergency.” See Norwood v. Vance, 591 F.3d 1062, 1069 (9th Cir. 2010) (“When violence

6 rises to unusually high levels, prison officials can reasonably believe it is lawful to

7 temporarily restrict outdoor exercise to help bring the violence under control.”); Hoptowit v.

8 Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) (noting, “when a genuine emergency exists, prison

9 officials may be more restrictive than they otherwise may be, and certain services may be

10 suspended temporarily”), abrogated in part on other grounds by Sandin v. Conner, 515 U.S.

11 472 (1995).

12

Indeed defendants admit violence in Facility C had prompted “constant program

13 modifications” for “a few years before the July 14, 2005 [assault],” undermining any

14 argument that violence had reached unusual levels. (Mot. Summ. J. III at 8). Defendants

15 also admit “Facility C is the most dangerous general-population unit at [SVSP].” (Ponder

16 Decl. ¶ 28.) Defendants refer to the documented “incidents” as “instances of violence and

17 threats.” (Ponder Decl. ¶ 75.) As noted by the Ninth Circuit, however, “[d]ocumented

18 threats and assaults happen frequently in prisons,” and “[g]iven that an emergency is

19 different from normal prison conduct, an emergency cannot be deemed to exist simply

20 because there are documented threats and assaults from time to time -- otherwise every

21 prison would be in a constant state of emergency.” Thomas, 611 F.3d at 1154. The record

22 shows the lockdown precipitated by the assault lasted less than two months, from July 14,

23 2005 to September 9, 2005. (Ponder Decl. ¶¶ 53-54.) Thereafter, Facility C transitioned to a

24 modified program, to which inmates were subject until they signed the CDC-128-B pledge.

25 (Id. ¶¶ 54, 57, 65-66.) The investigation of the assault had been completed by October 2005.

26 (Id. ¶ 56.) No further lockdowns occurred in Facility C during the time plaintiff was 27 deprived of outdoor exercise. (Evan Decl. Supp. Mot. Summ. J. III (“Evans Decl”) Ex. 1.) 28 In sum, there is a material issue of fact as to whether there was anything unusual about the

11

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1 violence levels in Facility C such that it was reasonable for defendants to deprive plaintiff of

2 exercise for a period of almost 14 months. See also Thomas, 611 F.3d at 1155-56 (“Under

3 the circumstances present here, however, in which the punishment of deprivation of exercise

4 appears clearly not to have been necessary to maintain order in the prison, it is difficult to

5 conceive of how a deprivation of a basic human necessity may be deemed reasonable.”)

6 (internal quotation and citation omitted).

7

Next, regarding the information defendants possessed concerning plaintiff himself,

8 defendants rely on the following factors to show plaintiff posed a security risk: (1) plaintiff’s

9 1997 commitment offense and criminal record; (2) plaintiff’s psychiatric diagnoses;

10 (3) plaintiff’s participation in a 1990 prison riot; (4) plaintiff’s anger and hostility toward

11 prison staff; and (5) plaintiff’s disregard for prison rules. (See Mot. Summ. J. III at 4-5.)

12 Again, however, defendants fail to show plaintiff’s personal history was unusual, such that he

13 presented a significantly higher threat as compared with other Facility C inmates who were

14 allowed outdoor exercise. Defendants themselves admit Facility C housed “the most

15 dangerous general-population unit at [SVSP],” that many of the inmates were there due to

16 convictions for serious offenses and long prison sentences, and that “Facility C inmates are

17 the most difficult to supervise, keep safe, and rehabilitate.” (Ponder Decl. ¶¶ 27-29.)

18

The Court has reviewed plaintiff’s disciplinary record, which was provided by

19 defendants. (See Counsel Decl. Supp. Mot. Summ. J. III (“Counsel Decl.”) Ex. 2.) While

20 plaintiff’s central file contains numerous rules violations reports, there are only two

21 infractions involving physical assault. The first took place in June 1990, more than 15 years

22 before the July 2005 assault on the Facility C correctional officers, and involved a physical

23 altercation among 16 inmates, including plaintiff. (Id. Ex. 2 at MSJ-QI 824-25.) The

24 second occurred in April 2003 and involved plaintiff’s striking another inmate on the face.

25 (Id. Ex. 2 at MSJ-QI 850.) Given the generally high levels of violence in Facility C

26 described by defendants, it appears plaintiff may have a comparatively minor disciplinary 27 history. Finally, the fact that plaintiff needed only to sign the pledge form to resume exercise 28 undermines defendants’ representations that they considered him a security risk. In sum,

12

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1 there is a material issue of fact as to whether plaintiff posed an unusually high safety concern

2 such that it was reasonable for defendants to believe it was lawful for them to deny him

3 outdoor exercise for a period of almost 14 months.

4

The cases on which defendants rely, Norwood v. Vance, 591 F.3d 1062 (9th Cir.

5 2010) and Noble v. Adams, 636 F.3d 525 (9th Cir. 2011), are distinguishable.5

6

The prisoner-plaintiff in Norwood was incarcerated at a California state prison during

7 an unusually violent period in that prison’s history. Norwood, 591 F.3d at 1065. Because of

8 prison violence, Norwood endured “four separate extended lockdowns over the course of two

9 years,” id.,with a denial of exercise in non-consecutive increments of three, three, four and a

10 half, and two months. Id. at 1065-66. The defendants therein presented evidence that the

11 four lockdowns were implemented as the result of “a series of inmate-on-inmate attacks,

12 including a homicide” as well as “serious inmate assaults on staff,” culminating in an

13 attempted murder of an officer. Id.6 After “the fourth major assault on staff in a 19-month

14 period, officers locked down all inmates and declared a state of emergency.” Id. The

15 defendants therein also presented evidence that when the prison “incrementally unlocked and

16 released [prisoners] to the small yards for exercise . . . violence continued to happen.” Id. at

17 1069. The Ninth Circuit described the situation confronted by the defendants in Norwood, as

18 “extraordinary violence gripping the prison [and] threaten[ing] staff and inmates alike.” Id.

19 at 1068. The court found the prison officials were entitled to qualified immunity, holding,

20 “[w]hen violence rises to unusually high levels, prison officials can reasonably believe it is

21

22

5 The Court also notes that Norwood and Noble were decided several years after the

23

events at issue in this case. Consequently, defendants cannot have relied on those cases in choosing their course of action.

24

6 The attacks included the following: (1) an attack by eleven Hispanic inmates on four

25

correctional officers, nearly killing one of them, in early 2002; (2) the stabbing of a correctional officer by a black inmate in May 2002; (3) the attempted murder of a

26

correctional officer by black inmates and a separate attack on staff members by black gangaffiliated inmates in late 2002; (4) the attempted murder of an officer by a black gang-

27

affiliated inmate in September 2003. Norwood, 591 F.3d at 1065. Assaults continued even during the lockdowns, including: a battery and attempted battery on officers during the

28

second lockdown, four batteries or attempted batteries of officers during the third lockdown, and five batteries or attempted murders of inmates during the third lockdown. Id.

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1 lawful to temporarily restrict outdoor exercise to help bring the violence under control.” Id.

2 at 1069.

3

In Noble, a violent armed riot against staff, described by a prison official as “the most

4 violent and savage attack he had observed in 20 years,” occurred on January 9, 2002. Noble,

5 646 F.3d at 1140. The Ninth Circuit described the situation as follows:

6

The riot in the exercise yard, which was started by a Crips gang member,

included an attempt by prisoners to kill one of the correction officers and

7

resulted in injuries to 21 staff. Nine staff members were taken to the hospital

for evaluation and treatment. The mass assault on staff was an unprecedented

8

event. It was unusual because of the normally antagonistic gangs acting

together. The Facility Captain said that this attack on staff was a “life changing

9

event.” According to Noble, “Numerous inmate manufactured weapons were

found [after the January 2002] riot on the Fac. ‘C’ exercise yard.” . . . This

10

violent riot occurred only one day after a previous prison-wide lockdown had

been lifted, a lockdown caused by intermittent prisoner riots during 2001.

11

Those riots, which involved Hispanic groups, created tension between prison

staff and African-American inmates because the latter felt they were being

12

arbitrarily punished for the acts of other groups. As recognized by the district

court, “African-American inmates at SATF were dissatisfied with the way they

13

were treated and became openly defiant of authority by being deliberately slow

to obey orders or submit to searches.”

14

Noble, 646 F.3d at 1140. 15

Following the riot, the warden declared a state of emergency and imposed a lockdown 16

on the entire prison. Id. The lockdown was released gradually starting with access to contact 17

visits on April 11, 2002. Id. at 1140, 1146. Finally, on August 1, 2002, all inmates were 18

given access to a modified program for outdoor exercise. Id. at 1141, 1146. Consequently, 19

Noble and other inmates were deprived of outdoor exercise for seven months. Following a 20

detailed review of the undisputed facts, the Ninth Circuit held the defendants were entitled to 21

qualified immunity, finding “[t]he record refutes the contentions that the lockdown was in 22

excess of what was required to restore order, was unrelated to the officials’ security and 23

safety responsibilities, and was kept in effect for a longer period than necessary.” Id. at 24

1144-48. 25

Here, on the record presented, defendants have not shown they were confronted with 26

situations equivalent to those described by the Ninth Circuit in Norwood and Noble. First, 27

the prison officials in those cases were able to present undisputed facts showing the violence 28

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1 levels they confronted were “unusually high,” justifying the measures taken in response. As

2 discussed above, defendants here have provided the Court with no basis for such a

3 comparison. Further, based on the record presently before the Court, the conditions

4 pertaining in Norwood and Noble were substantially more violent than the conditions

5 existing here.

6

Moreover, the plaintiffs in Norwood and Noble were deprived of exercise as part of a

7 prison-wide lockdown affecting all inmates. Norwood and Noble were able to resume

8 outdoor exercise once those lockdowns ended. Here, in contrast, the SVSP Facility C

9 lockdown ended in early September 2005, more than 11 months before plaintiff was allowed

10 to resume outdoor exercise. Moreover, although the pledge program followed on the heels of

11 the lockdown, there is a material issue of fact as to whether the pledge program was

12 instituted to respond to the assault that precipitated the lockdown. By defendants’ own

13 admission, the pledge program was intended to address a number of problems in Facility C,

14 including: (1) “an influx” of gang-affiliated inmates from Pelican Bay State Prison and

15 Corcoran State Prison; (2) repeated instances of violence between inmates affiliated with the

16 Fresno Bulldogs gang and other inmates; (3) SVSP’s “dangerously low” staffing levels; and

17 (4) overcrowding at SVSP. (Ponder Decl. ¶¶ 34-35, 38-45, 47, 49.) Also, as described by

18 defendant Ponder, the pledge program was “consistent with the CDCR’s renewed emphasis

19 on rehabilitation and evidence-based programming.” (Id. ¶ 55.) While the Court does not

20 question the prison’s need to find solutions to serious problems, there exists a factual dispute

21 as to whether the restriction on exercise mandated by the pledge program was necessary to

22 address the type of state of emergency contemplated by Norwood and Noble.

23

Finally, the periods during which exercise was curtailed were significantly shorter in

24 Norwood and Noble. Indeed, the Norwood court specifically noted, “[w]hen violence rises

25 to unusually high levels, prison officials can reasonably believe it is lawful to temporarily

26 restrict outdoor exercise.” Norwood, 591 F.3d at 1069 (emphasis added). The almost 14 27 month deprivation of exercise faced by plaintiff here was twice as long as Noble’s and lasted 28 more than three times longer than the longest single period during which Norwood’s exercise

15

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1 was restricted. In short, the restriction was not temporary. See also Thomas, 611 F.3d at

2 1155 (finding “13 month and 25 day confinement without out-of-cell exercise was not

3 []‘temporary’”; noting, “[w]hether a deprivation is temporary depends on the expiration date,

4 if any, of the prison’s policy, not on whether an individual can escape its application by one

5 means or another.”)

6

The Court also notes that the Ninth Circuit, in its July 2010 opinion, found material

7 factual issues existed as to whether defendants’ actions were reasonable, in light of “the

8 serious risk to Thomas’s mental and physical health; the level of documented assaults and

9 threats at the facility during the last 11 months Thomas was deprived of exercise; Thomas’s

10 limited disciplinary record; his execution of other forms provided by the prison in which he

11 promised to ‘program nonviolently’; and the prison authorities’ failure to consider providing

12 him with alternative opportunities to exercise.” Thomas, 611 F.3d at 1153.7 This Court,

13 after reviewing the papers submitted in support of and in opposition to the instant motion for

14 summary judgment, finds the material issues of fact identified in the Ninth Circuit’s opinion

15 remain, and that they preclude summary judgment on the grounds currently raised.

16

Accordingly, defendants’ motion for summary judgment on grounds of qualified

17 immunity will be denied.

18 C. Injunctive Relief

19

Plaintiff seeks both injunctive relief and money damages. (See AC at 1, 5.)

20 Defendants argue the Court should dismiss plaintiff’s claims for injunctive relief as moot,

21 because plaintiff no longer is housed at SVSP, the prison at which the events giving rise to

22 the instant action took place. (Mot. Summ. J. III at 25.) The Court agrees.

23

When an inmate has been transferred to another prison and there is no reasonable

24 expectation nor demonstrated probability that he again will be subjected to the conditions as

25 to which he seeks injunctive relief, the claim for injunctive relief should be dismissed as

26

27

7 Indeed, the Ninth Circuit stated: “Given the record before us, and the seriousness of the risk to which [plaintiff] was subjected, it is difficult to conceive how the prison

28

officials[’] actions would be deemed ‘reasonable.’ Nevertheless, the issue is one of fact that must be presented to a fact-finder.” Thomas, 611 F.3d at 1152.

16

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1 moot. See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). A claim that the inmate

2 might be re-transferred to the prison where the injury occurred is too speculative to overcome

3 mootness. Id.

4

Here, at the time plaintiff filed his Amended Complaint, he was incarcerated at SVSP;

5 he asserted claims alleging unconstitutional conditions pertaining during the period of his

6 confinement at SVSP in 2005 and 2006, and sought injunctive relief to remedy injuries

7 resulting therefrom. On March 11, 2009, plaintiff informed the Court he had been

8 transferred to Centinela State Prison. Because plaintiff has not been incarcerated at SVSP

9 since at least March 2009, to the extent he seeks injunctive relief from the conditions of his

10 confinement at SVSP, those claims will be dismissed as moot.8

11 D. Appealability

12

If the district court denies qualified immunity on a summary judgment motion, the

13 order is immediately appealable as a collateral order if the judgment is made as a matter of

14 law and “the issue appealed concerns whether the facts demonstrated a violation of clearly

15 established law.” Rodis v. City and County of San Francisco, 558 F.3d 964, 968 (9th Cir.

16 2009) (citation omitted). If the district court denies summary judgment on qualified

17 immunity because there remain genuine issues of material fact, then there is no right of

18 interlocutory appeal, because such an order is not a “final, immediately appealable order.”

19 Maropulos v. County of Los Angeles, 560 F.3d 974, 975 (9th Cir. 2009).

20

As discussed above, this Court finds there are genuine issues of material fact

21 precluding summary judgment on qualified immunity grounds. Accordingly, the ruling

22 herein is not immediately appealable, and the case should proceed to trial. As set forth in the

23 Conclusion section of this order, plaintiff will be referred to the Federal Pro Bono Project for

24 the purpose of locating trial counsel. 25

26

8 Should plaintiff seek to allege that some or all of his claims extend to the conditions

27

of his confinement at Centinela State Prison, those claims must be brought in a separate lawsuit in the United States District Court for the Southern District of California, the proper

28

venue for claims arising in Imperial County, where Centinela is located. See 28 U.S.C. § 1391(b); 28 U.S.C. § 84(d).

17

Case3:06-cv-03581-MMC Document108 Filed01/12/12 Page18 of 18

United States District Court For the Northern District of California

1

CONCLUSION

2

For the foregoing reasons, the Court orders as follows:

3

1. Defendants’ motion for summary judgment on grounds of qualified immunity are

4 hereby DENIED.

5

2. Plaintiff’s claims for injunctive relief are hereby DISMISSED as moot.

6

3. Plaintiff is hereby REFERRED to the Federal Pro Bono Project for the purpose of

7 locating counsel.

8

4. The Clerk shall forward to the Federal Pro Bono Project: (a) a copy of this order,

9 (b) a copy of the docket sheet, (c) a copy of the Amended Complaint, (d) a copy of the

10 Court’s December 11, 2006 order of service, and (e) a copy of the Ninth Circuit’s July 16,

11 2010 opinion in this case.

12

5. Upon an attorney being located to represent plaintiff, that attorney will be

13 appointed as counsel for plaintiff in this matter until further order of the Court.

14

6. All proceedings in this action are stayed until an attorney is appointed to represent

15 plaintiff. Once such attorney is appointed, the Court will schedule a case management

16 conference.

17

This order terminates Docket No. 98.

18

IT IS SO ORDERED.

19 DATED: January 12, 2012 20 21

_____________________________ MAXINE M. CHESNEY United States District Judge

22

23

24

25

26

27

28

18

 
 Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 1 of 12
ADRMOP,CLOSED,E−Filing,REFSET−NJV
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−03581−MMC

Thomas v. Ponder et al Assigned to: Hon. Maxine M. Chesney Referred to: Magistrate Judge Nandor J. Vadas (Settlement) Case in other court: 09−15522 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 06/05/2006 Date Terminated: 06/13/2012 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Otis Michael Thomas

represented by Caroline Nason Mitchell Jones Day 555 California Street 26th Floor San Francisco, CA 94104−1500 415 875 5712 Fax: 415 875 5700 Email: cnmitchell@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Jedediah Klepich Jones Day 1755 Embarcadero Rd Palo Alto, CA 94303 United Sta 650−739−3939 Email: mklepich@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Wallach Jones Day 555 California Street San Francisco, CA 94105 415−626−3939 Fax: 415−875−5700 Email: dwallach@jonesday.com ATTORNEY TO BE NOTICED

Michael Anderson Berry Jones Day 555 California Street 26th Floor San Francisco, CA 94104−1500 415−626−3939 Fax: 415−875−5700 Email: aberry@jonesday.com ATTORNEY TO BE NOTICED

V. Defendant Captain G. Ponder

represented by Jose Alfonso Zelidon−Zepeda Department of Justice 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5781 Fax: 415−703−5843

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 2 of 12

Email: Jose.ZelidonZepeda@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neah Huynh Attorney General's Office Correctional Law Section 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5720 Fax: 415−703−5843 Email: neah.huynh@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Sergeant M. J. Kircher

represented by Jose Alfonso Zelidon−Zepeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neah Huynh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Warden M. S. Evans

represented by Jose Alfonso Zelidon−Zepeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neah Huynh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/05/2006
06/05/2006 06/19/2006 07/05/2006
07/27/2006 08/16/2006 09/26/2006 12/11/2006

# Docket Text
1 COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. 1983 against G. Ponder, M. J. Kircher, M. S. Evans. Filed byOtis Michael Thomas. (aaa, Court Staff) (Filed on 6/5/2006) (Entered: 06/07/2006)
2 MOTION for Leave to Proceed in forma pauperis filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 6/5/2006) (Entered: 06/07/2006)
3 Letter dated 06/18/06; from Michael Thomas re Petitioner's personal property. (aaa, Court Staff) (Filed on 6/19/2006) (Entered: 06/22/2006)
4 AMENDED COMPLAINT against G. Ponder, M. J. Kircher, M. S. Evans. Filed byOtis Michael Thomas. (aaa, Court Staff) (Filed on 7/5/2006) (aaa, COURT STAFF). (Entered: 07/06/2006)
5 Letter dated 7/25/063; from Otis Michael Thomas re asking the court's assistance. (aaa, Court Staff) (Filed on 7/27/2006) (Entered: 07/28/2006)
6 Letter dated 08/07/06; from Otis M. Thomas re Memorandum of 07/03/06. (aaa, Court Staff) (Filed on 8/16/2006) (Entered: 08/17/2006)
7 Letter dated 9/24/06; from Otis Michael Thomas re 3 letter dated June 19, 2006. (aaa, Court Staff) (Filed on 9/26/2006) (Entered: 09/28/2006)
8 ORDER GRANTING 2 LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on December 11, 2006. (mmcsec, COURT STAFF) (Filed on 12/11/2006) (Entered: 12/11/2006)

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 3 of 12

12/11/2006
12/12/2006 12/12/2006 01/05/2007 01/17/2007 02/06/2007 02/07/2007 03/05/2007 03/05/2007 03/06/2007 03/12/2007 03/12/2007 03/12/2007 03/13/2007

9 ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the amended complaint in this matter, all attachments thereto, and a copy of this order upon Warden M.S. Evans, Sergeant M.J. Kircher and Captain G. Ponder at Salinas Valley State Prison. The Clerk shall also mail courtesy copies of the amended complaint and this order to the California Attorney General's Office. No later than ninety (90) days from the date of this order, defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint found to be cognizable above. Signed by Judge Maxine M. Chesney on December 11, 2006. (mmcsec, COURT STAFF) (Filed on 12/11/2006) Modified on 12/12/2006 (aaa, Court Staff). (Entered: 12/11/2006)
Sent by U.S. MAIL a certified copy of the 9 Order of Service and a certified copy of the 4 Amended Complaint to the Attorney General for the State of California. Re 9 Order (aaa, Court Staff) (Filed on 12/12/2006) (Entered: 12/12/2006)
Summons Issued as to G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 12/12/2006) (Entered: 12/12/2006)
10 Letter dated 1/3/07: from Otis Michael Thomas re Retaliation on Petitioner by Prison Staff. (aaa, Court Staff) (Filed on 1/5/2007) (Entered: 01/09/2007)
11 WAIVER OF REPLY AND DEMAND for Trial by Jury by G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 1/17/2007) (Entered: 01/18/2007)
12 Letter dated 02/04/07: from Otis Michael Thomas re Prison Retaliations. (aaa, Court Staff) (Filed on 2/6/2007) (Entered: 02/07/2007)
13 SUMMONS Returned Executed by Otis Michael Thomas. G. Ponder served on 2/6/2007, answer due 2/26/2007; M. J. Kircher served on 2/6/2007, answer due 2/26/2007; M. S. Evans served on 2/5/2007, answer due 2/26/2007. (aaa, Court Staff) (Filed on 2/7/2007) (Entered: 02/08/2007)
14 MOTION for Extension of Time to File a Dispositive Motion filed by G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 3/5/2007) (Entered: 03/06/2007)
15 Declaration of N. HUYNH in Support of 14 MOTION for Extension of Time to File A DISPOSITIVE MOTION filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 14 ) (aaa, Court Staff) (Filed on 3/5/2007) (Entered: 03/06/2007)
16 Letter dated 03/01/07: from Otis Thomas re Prison officials' retaliation and to inform the court of imposed Urine Test. Petitioner sent (attached) hair sample. (aaa, Court Staff) (Filed on 3/6/2007) (Entered: 03/07/2007)
17 NOTICE OF MOTION AND MOTION to Dismiss; MEMORANDUM OF POINTS AND AUTHORITIES filed by G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 3/12/2007) (Entered: 03/13/2007)
18 Declaration of N. HUYNH in Support of 17 MOTION to Dismiss filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 17 ) (aaa, Court Staff) (Filed on 3/12/2007) (Entered: 03/13/2007)
19 Declaration of N. GRANNIS in Support of 17 MOTION to Dismiss filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 17 ) (aaa, Court Staff) (Filed on 3/12/2007) (Entered: 03/13/2007)
20 ORDER by Judge Maxine M. Chesney granting 14 Motion for Extension of Time to File Dispositive Motion. Defendants Evans, Kircher and Ponder moved this Court for an extension of time to file a summary−judgment or other dispositive motion, up to and including April 11, 2007. After full consideration, and good cause appearing, Defendants' motion for extension of time is granted. Plaintiff shall file his opposition by May 11, 2007. If Defendants wish to file a reply, they shall do so by May 28, 2007. Absent further order, the motion will be submitted on May

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 4 of 12

04/09/2007
04/11/2007 04/11/2007 04/11/2007 04/18/2007 05/07/2007 05/07/2007 05/07/2007 05/11/2007
05/25/2007 05/25/2007

28, 2007 without a hearing. IT IS SO ORDERED. (aaa, Court Staff) (Filed on 3/13/2007) (Entered: 03/14/2007)
21 NOTICE OF MOTION AND MOTION to Compel DEFENDANTS EVANS, PONDER, AND KIRCHER TO ANSWER INTERROGATORIES WITHOUT OBJECTIONS; AND TO PRODUCE DOCUMENTS REQUESTED THROUGH REQUEST FOR PRODUCTION OF DOCUMENTS; PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULES 33, 34, 37 (a)., AND MONETARY SANCTIONS. ACCOMPANY PAPERS: MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; PROTECTIVE [PROPOSED] ORDER; [PROPOSED] ORDER filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 4/9/2007) (Entered: 04/10/2007)
22 NOTICE OF MOTION AND MOTION for Summary Judgment; MEMORANDUM OF POINTS AND AUTHORITIES filed by G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 4/11/2007) (Entered: 04/12/2007)
23 Declaration of N. HUYNH in Support of 22 MOTION for Summary Judgment filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 22 ) (aaa, Court Staff) (Filed on 4/11/2007) (Entered: 04/12/2007)
24 Declaration of PONDER in Support of 22 MOTION for Summary Judgment filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 22 ) (aaa, Court Staff) (Filed on 4/11/2007) (Entered: 04/12/2007)
25 ORDER SCHEDULING BRIEFING ON PLAINTIFF'S MOTIONS TO COMPEL, FOR SANCTIONS, AND FOR A PROTECTIVE ORDER; STAYING DEFENDANTS' DISPOSITIVE MOTIONS, DENYING AS MOOT PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME. Signed by Judge Maxine M. Chesney on April 18, 2007. (mmcsec, COURT STAFF) (Filed on 4/18/2007) (Entered: 04/18/2007)
26 NOTICE OF MOTION AND MOTION for Protective Order, MOTION to Stay DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES filed by G. Ponder, M. J. Kircher, M. S. Evans. (aaa, Court Staff) (Filed on 5/7/2007) (Entered: 05/08/2007)
27 NON−OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER; &MEMORANDUM in Opposition re 21 MOTION to Compel DISCOVERY AND FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 21 ) (aaa, Court Staff) (Filed on 5/7/2007) (Entered: 05/08/2007)
28 Declaration of N. HUYNH in Support of 26 MOTION for Protective Order MOTION to Stay Discovery, 27 Memorandum in Opposition to Plaintiff's Motion to Compel Discovery and for Sanctions filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 26 , 27 ) (aaa, Court Staff) (Filed on 5/7/2007) (Entered: 05/08/2007)
29 ORDER RE ELECTRONIC FILING IN CASES WITH UNREPRESENTED PARTIES: Case designated for electronic filing. Effective immediately all represented parties will e−file their submissions to the court. Represented parties will be required to serve paper copies by mail on unrepresented parties. Unrepresented litigants will continue to file and serve all submissions to the court in paper form unless prior leave is obtained from the assigned judge. Signed by Chief Judge Vaughn Walker dated 5/11/07. Copy mailed to counsel of record. (aaa, Court Staff) (Filed on 5/11/2007) (Entered: 05/17/2007)
30 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING ANSWERS TO INTERROGATORIES AND MOTION for Sanctions ; POINTS AND AUTHORITIES AND SUPPORTING DECLARATIION OF OTIS M. THOMAS Re Sergeant Kircher filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 5/25/2007) (Entered: 05/29/2007)
31 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING ANSWERS TO INTERROGATORIES AND FOR SANCTIONS; POINTS AND

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 5 of 12

05/25/2007 05/25/2007 06/07/2007 06/07/2007
06/12/2007
07/05/2007 01/14/2008 02/13/2008 02/20/2008 03/20/2008 04/18/2008

AUTHORITIES, AND SUPPORTING DECLARATION OF OTIS M. THOMAS, Re: Captain Ponder filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 5/25/2007) (Entered: 05/29/2007)
32 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING ANSWER TO INTERROGATORIES AND FOR SANCTIONS; POINTS AND AUTHORITIES AND SUPPORTING DECLARATION OF OTIS MICHAEL THOMAS: Re M.S. Evans filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 5/25/2007) (Entered: 05/29/2007)
33 CERTIFICATE OF SERVICE by Otis Michael Thomas re 30 MOTION to Compel MOTION for Sanctions MOTION for Sanctions, 31 MOTION to Compel MOTION for Sanctions MOTION for Sanctions, 32 MOTION to Compel MOTION for Sanctions MOTION for Sanctions (aaa, Court Staff) (Filed on 5/25/2007) (Entered: 05/29/2007)
34 Defendants' Opposition to Plaintiff's 30 , 31 &32 Motions for Order Compelling Answers to Interrogatories (Dockets 30−32); Memorandum of Points and Authorities filed by G. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 6/7/2007) Modified on 6/13/2007 (aaa, Court Staff). (Entered: 06/07/2007)
35 Declaration of N. Huynh in Support of 34 Opposition to Plaintiff's Motions for Order Compelling Answers to Interrogatories (Dockets 30−32); Memorandum of Points and Authorities MOTION to Compel Defendants' Opposition to Plaintiff's Motions for Order Compelling Answers to Interrogatories (Dockets 30−32); Memorandum of Points and Authorities filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 34 ) (Huynh, Neah) (Filed on 6/7/2007) Modified on 6/14/2007 (aaa, Court Staff). (Entered: 06/07/2007)
NOTICE re 34 MOTION to Compel Defendants' Opposition to Plaintiff's Motions for Order Compelling Answers to Interrogatories (Dockets 30−32); Memorandum of Points and Authorities MOTION to Compel Defendants' Opposition to Plaintiff's Motions for Order Compelling Answers to Interrogatories (Dockets 30−32); Memorandum of Points and Authorities was erroneously Posted the true attachment is an Opposition to Motion. The civil docket has been corrected to reflect the true attachment and the erroneous Posted Motion has been terminated. Failure to Hyper−Link(aaa, Court Staff) (Filed on 6/12/2007) (Entered: 06/13/2007)
36 NOTICE of Change of Address by Otis Michael Thomas (aaa, Court Staff) (Filed on 7/5/2007) (Entered: 01/11/2008)
37 ORDER DENYING 21 30 31 32 PLAINTIFF'S MOTIONS TO COMPEL AND FOR SANNCTIONS; GRANTING 26 DEFENDANTS' MOTIONS FOR PROTECTIVE ORDER AND TO STAY DISCOVERY; LIFTING STAY OF MOTION TO DISMISS AND SCHEDULING FURTHER BRIEFING. Signed by Judge Maxine M. Chesney on January 14, 2008. (mmcsec, COURT STAFF) (Filed on 1/14/2008) (Entered: 01/14/2008)
38 MEMORANDUM OF POINTS AND AUTHORITIES in Opposition TO 22 MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS' EVANS, KIRCHER AND PONDER filed byOtis Michael Thomas. (Attachments: # 1 Exhibit F pt1, # 2 Exhibit F pt2)(aaa, Court Staff) (Filed on 2/13/2008) (Entered: 02/14/2008)
39 MOTION to Withdraw Defendants' Notice of Withdrawal of Defendants' Motion to Dismiss (Docket 17) filed by G. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 2/20/2008) (Entered: 02/20/2008)
40 MOTION FOR THE COURT TO ORDER DEFENDANT FROM DELAYING THE PROCESS OF THE CASE filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 3/20/2008) (Entered: 03/20/2008)
41 Reply Memorandum re 40 MOTION Defendants' Response to Plaintiff's March 20, 2008 Motion (Docket 40) filed byG. Ponder, M. J. Kircher, M. S. Evans. (Attachments: # 1 Proposed Order Proposed Order)(Huynh, Neah) (Filed on 4/18/2008) (Entered: 04/18/2008)

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 6 of 12

05/09/2008
08/07/2008 08/07/2008 08/07/2008
08/07/2008 08/18/2008 08/27/2008 08/27/2008 08/27/2008 08/27/2008 09/05/2008 09/09/2008 10/30/2008

42 ORDER DENYING 40 PLAINTIFF'S MOTION TO ORDER DEFENDANTS NOT TO DELAY PROCEEDINGS; LIFTING STAYS OF DISCOVERY AND MOTION FOR SUMMARY JUDGMENT; SCHEDULING BRIEFING ON SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on May 9, 2008. (mmcsec, COURT STAFF) (Filed on 5/9/2008) (Entered: 05/09/2008)
43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim filed by G. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 8/7/2008) (Entered: 08/07/2008)
44 Declaration of Lt. Celaya in Support of 43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim filed byG. Ponder, M. J. Kircher, M. S. Evans. (Attachments: # 1 Attachment)(Related document(s) 43 ) (Huynh, Neah) (Filed on 8/7/2008) (Entered: 08/07/2008)
45 Declaration of Counsel in Support of 43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim filed byG. Ponder, M. J. Kircher, M. S. Evans. (Attachments: # 1 Exhibit 1 Part 1 of 2, # 2 Exhibit 1 Part 2 of 2, # 3 Exhibit 2 Part 1 of 2, # 4 Exhibit 2 Part 2 of 2, # 5 Exhibit 3)(Related document(s) 43 ) (Huynh, Neah) (Filed on 8/7/2008) (Entered: 08/07/2008)
46 Proposed Order re 43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim [Proposed] Order Granting Defendants' Motion for Summary Judgment on the Eighth Amendment Claim by G. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 8/7/2008) (Entered: 08/07/2008)
47 PLAINTIFF'S MOTION TO DEPUTY ATTORNEY GENERAL MR. NEAH HUYNH, DEPOSITION AND TO HONORABLE MS. MAXINE CHESNEY TO PLEASE TAKE NOTICE TO ORDER A COPY OF THE DEPOSITION filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 8/18/2008) (Entered: 08/19/2008)
48 Reply Memorandum re 47 MOTION Defendants' Opposition to Plaintiff's Motion Regarding His Deposition Transcript (Docket 47) filed byG. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 8/27/2008) (Entered: 08/27/2008)
49 Declaration of Counsel in Support of 48 Reply Memorandum filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 48 ) (Huynh, Neah) (Filed on 8/27/2008) (Entered: 08/27/2008)
50 EXHIBITS re 48 Reply Memorandum Courtesy Copy of Referenced Attachment in Support of Defendants' Opposition to Plaintiff's Motion Regarding His Deposition Transcript filed byG. Ponder, M. J. Kircher, M. S. Evans. (Attachments: # 1 Attachment)(Related document(s) 48 ) (Huynh, Neah) (Filed on 8/27/2008) (Entered: 08/27/2008)
51 CERTIFICATE OF SERVICE by G. Ponder, M. J. Kircher, M. S. Evans re 50 Exhibits, (Huynh, Neah) (Filed on 8/27/2008) (Entered: 08/27/2008)
53 MOTION TO DEPUTY ATTORNEY GENERAL NEAH HUYNH AND TO HONORABLE MAXINE M. CHESNEY TO PLEASE TAKE NOTICE TO ORDER A COPY OF THE DEPOSITION filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 9/5/2008) (Entered: 09/10/2008)
52 NOTICE by G. Ponder, M. J. Kircher, M. S. Evans Notice of Unavailability of Defendants' Counsel (Huynh, Neah) (Filed on 9/9/2008) (Entered: 09/09/2008)
54 ORDER DENYING 47 53 PLAINTIFF'S REQUEST FOR COURT TO OBTAIN AND REVIEW TRANSCRIPT OF PLAINTIFF'S DEPOSITION; SETTING NEW BRIEFING SCHEDULE ON PENDING MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on October 30, 2008. (mmcsec, COURT STAFF) (Filed on 10/30/2008) (Entered: 10/30/2008)

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12/10/2008
12/17/2008 12/17/2008 12/29/2008 12/29/2008 12/31/2008
12/31/2008
02/24/2009 02/24/2009
03/11/2009
03/17/2009 03/17/2009 03/17/2009 03/26/2009 04/30/2009

55 MOTION TO DEPUTY ATTORNEY GENERAL MR. NEAH HUYNH, DEPOSITION AND TO HONORABLE MS. MAXINE M. CHESNEY: TO PLEASE TAKE NOTICE THAT THE DEPOSITION HAS BEEN TAMPERED WITH: DECLARATION OF OTIS M. THOMAS; filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 12/10/2008) (Entered: 12/11/2008)
56 Request for Judicial Notice filed byOtis Michael Thomas. (aaa, Court Staff) (Filed on 12/17/2008) (Entered: 12/18/2008)
57 MEMORANDUM in Opposition re 43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim filed byOtis Michael Thomas. (Related document(s) 43 ) (aaa, Court Staff) (Filed on 12/17/2008) (Entered: 12/18/2008)
58 Letter dated 12/22/08: from Otis M. Thomas re Plaintiff's 57 Memorandum of Points and Authorities in Opposition. (aaa, Court Staff) (Filed on 12/29/2008) (Entered: 12/30/2008)
59 CERTIFICATE OF SERVICE by Otis Michael Thomas re 58 Letter (aaa, Court Staff) (Filed on 12/29/2008) (Entered: 12/30/2008)
60 RESPONSE in Support re 43 MOTION for Summary Judgment Defendants' Notice of Motion and Motion for Summary Judgment on the Eighth Amendment Claim Defendants' Reply in Support of Their Motions for Summary Judgment (Dockets 22 and 43) filed byG. Ponder, M. J. Kircher, M. S. Evans. (Huynh, Neah) (Filed on 12/31/2008) (Entered: 12/31/2008)
61 MEMORANDUM in Opposition re 56 Request for Judicial Notice Defendants' Opposition to Plaintiff's Motion for Judicial Notice Under Federal Rule of Evidence 201(b), (d), &(f) (Docket 56) filed byG. Ponder, M. J. Kircher, M. S. Evans. (Related document(s) 56 ) (Huynh, Neah) (Filed on 12/31/2008) (Entered: 12/31/2008)
62 ORDER GRANTING 43 DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; DENYING 55 PLAINTIFF'S MOTIONS FOR JUDICIAL NOTICE. Signed by Judge Maxine M. Chesney on February 24, 2009. (mmcsec, COURT STAFF) (Filed on 2/24/2009) (Entered: 02/24/2009)
63 CLERK'S JUDGMENT in favor of G. Ponder, M. J. Kircher, M. S. Evans against Otis Michael Thomas. 1. Defendants motion for summary judgment are hereby GRANTED and judgment shall be entered in favor of each of the defendants.2. Plaintiffs motions for judicial notice are hereby DENIED (tl, COURT STAFF) (Filed on 2/24/2009) (Entered: 02/24/2009)
64 NOTICE OF APPEAL and Change of Address re 63 Judgment, 22 Motion for Summary Judgment, 43 Motion for Summary Judgment, 55 Miscellaneous Motion &56 Request for Judicial Notice by Otis Michael Thomas. (aaa, Court Staff) (Filed on 3/11/2009) (Additional attachment(s) added on 3/26/2009: # 1 USCA NUMBER: 09−15522) (aaa, Court Staff). (Entered: 03/12/2009)
65 Cover Letter &Transmittal Form: Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 64 Notice of Appeal, (Attachments: # 1 Transmittal Form)(aaa, Court Staff) (Filed on 3/17/2009) (Entered: 03/17/2009)
66 Certificate of Record Mailed to USCA re appeal 64 Notice of Appeal, : (aaa, Court Staff) (Filed on 3/17/2009) (Entered: 03/17/2009)
67 Copy of 64 Notice of Appeal and Docket sheet mailed to all counsel and to parties without an e−mailing address. (aaa, Court Staff) (Filed on 3/17/2009) (Additional attachment(s) added on 3/17/2009: # 1 Docket Sheet) (aaa, Court Staff). (Entered: 03/17/2009)
68 USCA Case Number 09−15522 for 64 Notice of Appeal, filed by Otis Michael Thomas. (aaa, Court Staff) (Filed on 3/26/2009) (Entered: 03/26/2009)
69 ORDER of USCA: Appellant Otis Thomas, has been granted leave to proceed in forma pauperis in this appeal; as to 64 Notice of Appeal, filed by Otis Michael Thomas (aaa, COURT STAFF) (Filed on 4/30/2009) (Entered: 04/30/2009)

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08/04/2009 08/13/2009
07/26/2010 10/01/2010 11/17/2010
11/17/2010 11/22/2010 12/01/2010 01/03/2011
01/12/2011 01/28/2011
02/17/2011
02/24/2011
03/24/2011 03/29/2011
04/01/2011

70 Certified and Transmitted Record on Appeal to US Court of Appeals re 64 Notice of Appeal, (aaa, COURT STAFF) (Filed on 8/4/2009) (Entered: 08/05/2009)
71 RECEIPT OF ACKNOWLEDGMENT from the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RECORD TRANSMITTAL FORM. Re 64 Notice of Appeal. (aaa, COURT STAFF) (Filed on 8/13/2009) (Entered: 08/14/2009)
72 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT: OPINION re 64 Notice of Appeal, : (aaa, COURT STAFF) (Filed on 7/26/2010) (Entered: 07/26/2010)
73 MOTION for a Time Schedule Order for Trial filed by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 10/1/2010) (Entered: 10/04/2010)
74 MANDATE of USCA: The judgment of this Court, entered July 16, 2010, takes effect this date. This constitutes the formal mandate of this Court. FOR THE COURT; as to 64 Notice of Appeal, filed by Otis Michael Thomas (aaa, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)
75 CLERKS Letter Spreading Mandate to Counsel re 74 USCA Mandate (aaa, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)
76 Letter dated 11/18/10: from Otis Michael Thomas re Request for Mediation &[Proposed] Order. (aaa, COURT STAFF) (Filed on 11/22/2010) (Entered: 11/23/2010)
77 Appeal Record Returned: (aaa, COURT STAFF) (Filed on 12/1/2010) (Entered: 12/02/2010)
78 ORDER REOPENING CASE; REFERRING CASE FOR SETTLEMENT PROCEEDINGS; DENYING 73 MOTION FOR SCHEDULING ORDER. Signed by Judge Maxine M. Chesney on January 3, 2011. (mmcsec, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
80 Letter dated 1/5/11: from Otis Michael Thomas re Request for Pro Se Prisoner Mediation. (aaa, COURT STAFF) (Filed on 1/12/2011) (Entered: 01/12/2011)
81 Order Setting Settlement Conference before Magistrate Judge Nandor Vadas.Settlement Conference set for 3/22/2011 at 9:00 AM. at Solano State Prison. Signed by Judge Vadas on 1/28/11. (njvlc1, COURT STAFF) (Filed on 1/28/2011) (Entered: 01/28/2011)
82 Proposed Order re 81 Order Setting Settlement Conference Proposed Order and Writ of Habeas Corpus Ad Testificandum to Transport Inmate Otis Michael Thomas, CDCR #D−57701 by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 2/17/2011) (Entered: 02/17/2011)
83 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference on March 22, 2011, at Solano State Prison. Signed by Judge Vadas on 2/24/2011. (njvlc1, COURT STAFF) (Filed on 2/24/2011) (Entered: 02/24/2011)
84 MOTION FOR A TIME SCHEDULE ORDER FOR TRIAL filed by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 3/24/2011) (Entered: 03/25/2011)
85 RESPONSE (re 84 MOTION ) Defendants' Response to Plaintiff's Motion for a Trial Date; Defendants' Request for a Briefing Schedule for Their Anticipated Motion for Summary Judgment on Qualified−Immunity Grounds filed byM. S. Evans, M. J. Kircher, G. Ponder. (Attachments: # 1 Attachment 1)(Huynh, Neah) (Filed on 3/29/2011) (Entered: 03/29/2011)
86 ORDER DENYING 84 MOTION FOR TRIAL SCHEDULING ORDER; SETTING BRIEFING SCHEDULE FOR FILING OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON GROUNDS OF QUALILFIED IMMUNITY. Signed by Judge Maxine M. Chesney on April 1, 2011. (mmcsec, COURT STAFF) (Filed on 4/1/2011) (Entered: 04/01/2011)

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 9 of 12

04/05/2011 04/13/2011 04/14/2011 05/04/2011 05/04/2011 05/06/2011
05/12/2011 05/16/2011 05/25/2011
05/26/2011
05/31/2011
06/02/2011 06/02/2011
06/02/2011

87 Letter dated 3/30/11: from Otis Michael Thomas re Witness List. (aaa, COURT STAFF) (Filed on 4/5/2011) (Entered: 04/07/2011)
88 MOTION FOR A TIME SCHEDULE ORDER FOR TRIAL filed by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 4/13/2011) (Entered: 04/14/2011)
89 Minute Entry: Report of Pro Se Prisoner Early Settlement ProceedingSettlement Conference Case not settled(Date Filed: 4/14/2011). () (glm, COURT STAFF) (Date Filed: 4/14/2011) (Entered: 04/14/2011)
90 MOTION for Extension of Time to File Defendants' Notice of Motion and Motion for a 15−Day Extension of Time to File Their Summary−Judgment Motion; Declaration of Counsel; &Proposed Order filed by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 5/4/2011) (Entered: 05/04/2011)
91 Proposed Order Granting Defendants' Motion for a 15−Day Extension of Time to File Their Summary−Judgment Motion by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 5/4/2011) (Entered: 05/04/2011)
92 ORDER GRANTING 90 DEFENDANTS' REQUEST FOR EXTENSION OF TIME; DENYING 88 MOTION FOR TRIAL SCHEDULING ORDER. Signed by Judge Maxine M. Chesney on May 6, 2011. (mmcsec, COURT STAFF) (Filed on 5/6/2011) (Additional attachment(s) added on 5/6/2011: # 1 Certificate of Service) (tlS, COURT STAFF). (Entered: 05/06/2011)
93 MOTION FOR THE COURT TO ORDER DEFENDANTS FROM DELAYING THE PROCEEDING OF THE CASE FOR TRIAL; filed by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 5/12/2011) (Entered: 05/13/2011)
94 [PROPOSED] ORDER REFERRING LITIGANT TO FEDERAL PRO BONO PROJECT AND STAYING PROCEEDINGS PENDING APPOINTMENT OF COUNSEL by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 5/16/2011) (Entered: 05/17/2011)
95 MOTION for Extension of Time to File DEFENDANTS NOTICE OF MOTION AND MOTION FOR AN 8−DAY EXTENSION OF TIME TO FILE THEIR SUMMARY−JUDGMENT MOTION; ACCOMPANYING DECLARATION OF COUNSEL; &PROPOSED ORDER filed by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 5/25/2011) (Entered: 05/25/2011)
96 Proposed Order re 95 MOTION for Extension of Time to File DEFENDANTS NOTICE OF MOTION AND MOTION FOR AN 8−DAY EXTENSION OF TIME TO FILE THEIR SUMMARY−JUDGMENT MOTION; ACCOMPANYING DECLARATION OF COUNSEL; &PROPOSED ORDER [PROPOSED] ORDER GRANTING DEFENDANTS MOTION FOR AN 8−DAY by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 5/26/2011) (Entered: 05/26/2011)
97 ORDER GRANTING 95 DEFENDANTS' REQUEST FOR EXTENSION OF TIME; DENYING 93 MOTION FOR TRIAL SCHEDULING ORDER; DENYING PLAINTIFF'S REQUEST FOR COUNSEL. Signed by Judge Maxine M. Chesney on May 31, 2011. (mmcsec, COURT STAFF) (Filed on 5/31/2011) (Entered: 05/31/2011)
98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds filed by M. S. Evans, M. J. Kircher, G. Ponder. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
99 Declaration of G. Ponder in Support of 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds filed byM. S. Evans, M. J. Kircher, G. Ponder. (Attachments: # 1 Exhibit 1)(Related document(s) 98 ) (Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
100 Declaration of Evans in Support of 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds filed byM. S. Evans, M. J. Kircher, G. Ponder. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 10 of 12

06/02/2011 06/02/2011
06/02/2011 06/06/2011 07/01/2011 07/19/2011 11/30/2011 01/12/2012
01/13/2012 01/20/2012

5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Related document(s) 98 ) (Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
101 Declaration of Kircher in Support of 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds filed byM. S. Evans, M. J. Kircher, G. Ponder. (Related document(s) 98 ) (Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
102 Declaration of Neah Huynh in Support of 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds filed byM. S. Evans, M. J. Kircher, G. Ponder. (Attachments: # 1 Exhibit 1_Part1, # 2 Exhibit 1_Part2, # 3 Exhibit 2_Part1, # 4 Exhibit 2_Part2, # 5 Exhibit 3_Part1, # 6 Exhibit 3_Part2, # 7 Exhibit 3_Part3, # 8 Exhibit 3_Part4, # 9 Exhibit 3_Part5, # 10 Exhibit 3_Part6, # 11 Exhibit 3_Part7, # 12 Exhibit 3_Part8, # 13 Exhibit 3_Part9, # 14 Exhibit 3_Part10, # 15 Exhibit 3_Part11, # 16 Exhibit 3_Part12, # 17 Exhibit 3_Part13, # 18 Exhibit 3_Part14, # 19 Exhibit 4, # 20 Exhibit 5)(Related document(s) 98 ) (Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
103 Proposed Order re 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds by M. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 6/2/2011) (Entered: 06/02/2011)
104 MOTION TO THE HONORABLE JUDGE MS. MAXINE M. CHESNEY: TO LOOK BACK AT THE RECORD AND SEE THAT PLAINTIFF WAS AT ALL TIME HOUSED AT (C.S.P.−SOLANO) ON THE DATE THAT HONORABLE SENT (DOCKET NO. 84 ): TO PLAINTIFF AT (CENTINELA STATE PRISON); filed by Otis Michael Thomas. (aaa, COURT STAFF) (Filed on 6/6/2011) (Entered: 06/07/2011)
105 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION (re 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds ) filed byOtis Michael Thomas. (Attachments: # 1 Opposition Pt.02, # 2 Opposition Pt.03, # 3 Opposition Pt.04, # 4 Opposition Pt.05)(aaa, COURT STAFF) (Filed on 7/1/2011) (Additional attachment(s) added on 7/5/2011: # 5 Envelope) (aaa, COURT STAFF). (Entered: 07/05/2011)
106 REPLY (re 98 MOTION for Summary Judgment Defendants' Notice of Motion &Motion for Summary Judgmenton Qualified−Immunity Grounds ) filed byM. S. Evans, M. J. Kircher, G. Ponder. (Huynh, Neah) (Filed on 7/19/2011) (Entered: 07/19/2011)
107 Letter dated 11/23/11: from Otis Michael Thomas re Case Status. (aaa, COURT STAFF) (Filed on 11/30/2011) (Entered: 12/01/2011)
108 ORDER DENYING 98 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON QUALIFIED IMMUNITY GROUNDS; DISMISSING AS MOOT PLAINTIFF'S CLAIMS FOR INJUNCTIVE RELIEF; REFERRING CASE TO FEDERAL PRO BONO PROJECT FOR ASSIGNMENT OF COUNSEL; STAYING PROCEEDINGS PENDING APPOINTMENT OF COUNSEL; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on January 12, 2012. (mmcsecS, COURT STAFF) (Filed on 1/12/2012) (Additional attachment(s) added on 1/12/2012: # 1 Certificate of Service) (tlS, COURT STAFF). (Entered: 01/12/2012)
Sent VIA E−MAIL by the Pro Se Department pdf copie(s) of 108 Order; the Civil Docket; 4 Amended Complaint; 9 Order of Serice &72 Ninth Circuit's Opinion to the Federal Pro Bono Project. Re 108 Order (aaa, COURT STAFF) (Filed on 1/13/2012) (Entered: 01/13/2012)
109 Letter dated 01/17/12: from Otis Michael Thomas re Request for Case Status. Notice of Change of Address (aaa, COURT STAFF) (Filed on 1/20/2012) (Entered: 01/20/2012)

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 11 of 12

01/30/2012 01/30/2012
02/01/2012
03/08/2012 03/08/2012 03/13/2012 03/16/2012 03/23/2012
03/23/2012 03/26/2012 04/10/2012 05/11/2012 05/15/2012 05/16/2012

110 ORDER APPOINTING PRO BONO COUNSEL; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on January 30, 2012. (mmcsec, COURT STAFF) (Filed on 1/30/2012) (Additional attachment(s) added on 1/30/2012: # 1 Certificate of Service) (tlS, COURT STAFF). (Entered: 01/30/2012)
111 ***ERRONEOUS DOCKET ENTRY − PLEASE DISREGARD***ADR SCHEDULING ORDER: Case Management Statement due by 5/4/2012. Case Management Conference set for 5/11/2012 01:30 PM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Standing Order)(slh, COURT STAFF) (Filed on 1/30/2012) Modified on 1/31/2012 (slh, COURT STAFF). (Entered: 01/31/2012)
112 CASE MANAGEMENT SCHEDULING ORDER: Case Management Statement due by 3/16/2012. Initial Case Management Conference set for 3/23/2012 10:30 AM in Courtroom 7, 19th Floor, San Francisco.. Signed by Judge Maxine M. Chesney on 2/1/12. (Attachments: # 1 Standing Order of Judge Maxine M. Chesney)(tlS, COURT STAFF) (Filed on 2/1/2012) (Entered: 02/01/2012)
113 NOTICE of Appearance by Michael Anderson Berry (Berry, Michael) (Filed on 3/8/2012) (Entered: 03/08/2012)
114 NOTICE of Appearance by David L. Wallach (Wallach, David) (Filed on 3/8/2012) (Entered: 03/08/2012)
115 NOTICE of Appearance by Jose Alfonso Zelidon−Zepeda Defendants' Notice of Appearance of Counsel (Zelidon−Zepeda, Jose) (Filed on 3/13/2012) (Entered: 03/13/2012)
116 JOINT CASE MANAGEMENT STATEMENT filed by Otis Michael Thomas. (Wallach, David) (Filed on 3/16/2012) (Entered: 03/16/2012)
117 Minute Entry: Initial Case Management Conference held on 3/23/2012 before Maxine M. Chesney (Date Filed: 3/23/2012). Discovery due by 9/21/2012. Expert discovery due by 11/16/2012. Dispositive Motions due by 11/30/2012. Final Pretrial Conference set for 2/19/2013 03:00 PM in Courtroom 7, 19th Floor, San Francisco. Jury Trial (5 days) set for 3/4/2013 09:00 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney. Status Conference set for 1/11/2013 10:30 AM in Courtroom 7, 19th Floor, San Francisco before Hon. Maxine M. Chesney, joint statement due by 1/4/2013. (Not Reported.) (tlS, COURT STAFF) (Date Filed: 3/23/2012) (Entered: 03/23/2012)
118 AMENDED Minute Entry: Initial Case Management Conference held on 3/23/2012 before Maxine M. Chesney (Clerical correction of expert disclosure date)(Date Filed: 3/23/2012). (Not Reported.) (tlS, COURT STAFF) (Date Filed: 3/23/2012) (Entered: 03/23/2012)
119 PRETRIAL PREPARATION ORDER. Signed by Judge Maxine M. Chesney on 3/26/12. (tlS, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
120 Order Setting Settlement Conference before Magistrate Judge Vadas. Settlement Conference set for 6/20/2012 at 09:00 AM at Solano State Prison. Signed by Magistrate Judge Nandor J. Vadas on 4/10/12. (njvlc1, COURT STAFF) (Filed on 4/10/2012) (Entered: 04/10/2012)
121 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference. Signed by Magistrate Judge Nandor J. Vadas on 5/11/2012. (njvlc1, COURT STAFF) (Filed on 5/11/2012) (Entered: 05/11/2012)
122 MOTION for Leave to Appear At Settlement Conference Via Video Conference filed by Otis Michael Thomas. (Attachments: # 1 Declaration Declaration of Otis Thomas In Support of Motion for Leave to Appear at Settlement Conference Via Video Conference)(Wallach, David) (Filed on 5/15/2012) (Entered: 05/15/2012)
123 ORDER granting 122 Motion for Leave to Appear at settlement conference via video conferencing. Settlement conference set for June 20, 2012, vacated and writ vacated. Settlement conference to be reset as soon as court's calendar permits. (njvlc1, COURT STAFF) (Filed on 5/16/2012) (Entered: 05/16/2012)

Case: 3:06-cv-03581-MMC As of: 09/20/2013 08:22 AM PDT 12 of 12

05/23/2012 05/30/2012 06/05/2012 06/12/2012 06/13/2012
09/07/2012 09/27/2012 11/19/2012 11/20/2012

124 Order Setting Settlement Conference before Magistrate Judge. Settlement Conference set for 6/12/2012 at 11:00 AM. Settlement conference to be conducted via video conferencing. Signed by Magistrate Judge Nandor J. Vadas on 5/23/12. (njvlc1, COURT STAFF) (Filed on 5/23/2012) (Entered: 05/23/2012)
125 ORDER REQUIRING PARTIES TO MEET AND CONFER IN ADVANCE OF SETTLEMENT CONFERENCE. Signed by Magistrate Judge Nandor J. Vadas on May 30, 2012. (njvlc2, COURT STAFF) (Filed on 5/30/2012) (Entered: 05/30/2012)
126 ORDER returning document to Plaintiff entered by Magistrate Judge Nandor J. Vadas on 6/5/12. (njvlc1, COURT STAFF) (Filed on 6/5/2012) (Entered: 06/05/2012)
127 Minute Entry: REPORT OF PRO SE PRISONER EARLY SETTLEMENT PROCEEDING. Case Settled. Settlement Conference held (Date Filed: 6/12/2012). Status Conference set for 7/24/2012 01:45 PM before Magistrate Judge Nandor J. Vadas. () (glm, COURT STAFF) (Date Filed: 6/12/2012) (Entered: 06/12/2012)
128 ORDER OF DISMISSAL. Plaintiff's claims are dismissed without prejudice; provided, however, that if any party hereto shall certify to this Court, within ninety days, with proof of service of a copy thereon on opposing counsel, that the agreed consideration for the settlement has not been delivered, the foregoing order shall stand vacated and the action shall forthwith be restored to the calendar for further proceedings as appropriate. Signed by Judge Maxine M. Chesney on June 13, 2012. (mmclc2, COURT STAFF) (Filed on 6/13/2012) (Entered: 06/13/2012)
129 MOTION for settlement conference filed by Otis Michael Thomas. Responses due by 10/5/2012. Replies due by 10/19/2012. (far, COURT STAFF) (Filed on 9/7/2012) (Entered: 09/26/2012)
130 ORDER STRIKING FILING OF SEPTEMBER 7, 2012. Signed by Judge Maxine M. Chesney on September 27, 2012. (mmclc2, COURT STAFF) (Filed on 9/27/2012) (Additional attachment(s) added on 9/27/2012: # 1 Certificate of Service) (tlS, COURT STAFF). (Entered: 09/27/2012)
131 STIPULATION WITH PROPOSED ORDER to Dismiss with Prejudice filed by M. S. Evans, M. J. Kircher, G. Ponder, Otis Michael Thomas. (Huynh, Neah) (Filed on 11/19/2012) (Entered: 11/19/2012)
132 NOTIFICATION OF SATISFACTION OF SETTLEMENT; AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge Maxine M. Chesney on November 20, 2012. (mmclc2, COURT STAFF) (Filed on 11/20/2012) (Entered: 11/20/2012)