FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL ERIC HEBBE, 

Plaintiff-Appellant, No. 07-17265

v. D.C. No.

CV-00-00306-EFB CHERYL PLILER, Warden, CSP 

Sacramento; STEVEN VANCE, ORDER AND

Correctional Captain, CSP AMENDED

Sacramento, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Edmund F. Brennan, United States Magistrate Judge,

Presiding

Argued and Submitted

April 7, 2010—Pasadena, California

Filed July 29, 2010

Amended November 19, 2010

Before: Daniel M. Friedman,* Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge Friedman

*The Honorable Daniel M. Friedman, United States Circuit Judge for

the Federal Circuit, sitting by designation. 

18591
COUNSEL

Michael G. Williams (argued), U.C.L.A. School of Law Ninth

Circuit Clinic, Los Angeles, California, supervised by Charles

C. Lifland, Jeremy Maltby, Catalina Joos Vergara (argued),

O’Melveny & Myers, LLP, Los Angeles, California, for the

plaintiff-appellant.

Edmund G. Brown, Jr., Rochelle C. East, David Carrasco

(argued), Office of the California Attorney General, Sacramento, California, for the defendants-appellees.

ORDER

The opinion filed on July 29, 2010, and reported at 611

F.3d 1202, is hereby amended so as to conform with the

amended opinion filed herewith. The concurring opinion filed

on that date remains unchanged.

The petition for rehearing en banc remains pending before

the court and shall be deemed to apply to the amended opinion, unless within 14 days of the date of this order the appellees withdraw or amend their petition.

OPINION

REINHARDT, United States Circuit Judge:

Paul Hebbe, a prisoner in the California State PrisonSacramento C-Facility (“CSP”), appeals the district court’s

18594 HEBBE v. PLILER
grant of prison officials Cheryl Pliler, Warden of the CSP, and

Steven Vance, Correctional Captain of the CSP (individually

and collectively “the prison officials”) motion to dismiss his

42 U.S.C. § 1983 action under Federal Rule of Civil Procedure 12(b)(6). Hebbe appeals the district court’s ruling with

respect to two distinct constitutional claims. First, Hebbe

claims that the prison officials violated his constitutional right

of court access because they denied him use of the prison law

library without providing any alternative means of legal

research assistance during the limited time period in which he

was permitted to appeal his state court criminal conviction.

Second, Hebbe claims that subsequently the prison officials

violated his Eighth Amendment right to be free from cruel

and unusual punishment because they forced him to choose

between two constitutional rights, his right to exercise and his

right of court access, by allowing him out of his cell only two

hours per day, four days per week, for a period of eight

months. We reverse the district court’s ruling as to both

claims and remand the case for further proceedings.

I. BACKGROUND

Paul Hebbe was convicted, pursuant to a plea agreement, of

two counts of burglary. He was sentenced to a term of eighteen years and four months. He appealed his conviction to the

California Court of Appeal. The court appointed pro bono

counsel to represent him on appeal. 

On November 9, 1998, while Hebbe was imprisoned in the

CSP, a fight broke out and parts of the facility, including the

part in which he was held, were subjected to a “lockdown.”

During lockdowns, CSP inmates are confined to their cells at

almost all times and are not allowed to exercise outdoors or

use the institution’s law library. On November 18, 1998,

Hebbe’s pro bono appellate counsel withdrew and filed a “no

issue” Wende brief in the California Court of Appeal.1 The

1A Wende brief is one that an appellate counsel can file when he finds

no legitimate issues for appeal. See People v. Wende, 25 Cal.3d 436

(1979). When an attorney files a Wende brief the court is then obliged to

undertake an independent review of the record for valid claims. 

HEBBE v. PLILER 18595
court accepted the brief, and advised Hebbe of his right to

file, pro se, a supplemental appellate brief within thirty days,

by December 18, 1998. Hebbe states in his complaint that he

was still on lockdown, and thus had no access to the law

library for that entire thirty-day period. He asserts that he was

therefore unable to research and file a supplemental appellate

brief by the December 18, 1998 deadline. 

The CSP alleges that it provides inmates with emergency

library services during a lockdown through a paging system,

although this system offers extremely limited access to legal

materials.2 According to the prison officials, Hebbe was

allowed access to this paging system while he was on lockdown; according to Hebbe, however, the prison officials never

informed him of the program’s existence or that he had a right

to use the program to access legal reference materials. Hebbe

alleges that he did not learn of the existence of the paging system until January of 1999. Consequently, he asserts, he did

not file a supplemental brief before the California Court of

Appeal’s December 18, 1998, filing deadline. For the purposes of a motion to dismiss, we construe the pleading in the

light most favorable to the party opposing the motion, and

resolve all doubts in the pleader’s favor. See Hospital Bldg.

Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976). We

2Using the paging system, inmates with legal deadlines may forward

requests for legal references to the library, and library staff will deliver the

requested items to the inmates, beginning after the third day of lockdown.

However, the prison restricts each inmate to a maximum of three items at

a time, and these items may not be more than thirty pages each. If a document is larger than thirty pages then the prison will only deliver the document in thirty page increments. Further, the library staff will send only

items that the inmates must request by using a specific form of correct

citation, which it defines narrowly. If the citation is not sufficiently clear

then the library staff will deny the request. For example, the library staff

will deny a request for “Plessy v. Ferguson,” as it is not specific enough.

Also, the library staff will deny a request for “114 S. Ct. 2364, Heck v.

Humphrey” as it is not in the correct citation format. Other citation defects

that if found will result in the library staff ignoring the request are misspellings in case names and lack of all parallel citation. 

18596 HEBBE v. PLILER
therefore take the factual allegations in Hebbe’s complaint as

true. See Galbraith v. County of Santa Clara, 307 F.3d 1119,

1121 (9th Cir. 2002)

On March 8, 1999 Hebbe’s section of the prison was

removed from lockdown status and he was once again

allowed to access the prison’s law library. Shortly thereafter,

there was another disturbance and the prison officials put

Hebbe’s section of the prison back on lockdown, from March

28, 1999 until April 18, 1999. On April 20, 1999, Hebbe filed

a “continuance request,” with the California Court of Appeal

asserting that the lockdown had made it impossible for him to

research and draft an appellate brief. The California Court of

Appeal, which had dismissed Hebbe’s appeal after he failed

to file a supplemental brief by the court’s deadline, construed

the “continuance request” as a petition for rehearing and

denied it on May 5, 1999. 

From November 10, 1998 to February 14, 2000, a period

of a little more than 15 months, Hebbe spent approximately

seven months in lockdown, without access to the law library

and without an opportunity to exercise outdoors.3 For the

period of time totaling eight months in which Hebbe was not

on lockdown,4 the CSP allowed him two hours per day, four

days per week, during which he could either exercise outdoors

or use the law library. These eight hours per week were

Hebbe’s only opportunity to do either. 

On February 14, 2000, Hebbe filed a complaint in the district court under 42 U.S.C. § 1983 alleging that the prison

officials had violated his constitutional rights. Only two of the

3Hebbe was in lockdown between November 10, 1998 - March 8, 1999,

March 28, 1999 - April 18, 1999, and September 11, 1999 - November 10,

1999. ER II 104. However, Hebbe was not himself responsible for any of

the prison lockdowns. 

4Specifically: March 8, 1999 - March 28, 1999, April 18, 1999 - September 11, 1999, and November 10, 1999 - February 14, 2000. 

HEBBE v. PLILER 18597
claims listed in that complaint are relevant for purposes of this

appeal: the claim that the prison officials violated Hebbe’s

right of access-to-courts by preventing him from using the

law library during the lockdown, and his claim that the prison

officials violated his Eighth Amendment rights by forcing him

to choose between outdoor exercise and use of the law library

when he was not on lockdown.5

On April 10, 2001, the prison officials filed a Motion to

Dismiss for failure to state a claim upon which relief can be

granted. On February 20, 2002, the magistrate judge recommended dismissing Hebbe’s access-to-courts claim because

he “fail[ed] to allege he was unable to file a meritorious claim

as a result of his [law] library restrictions.” The magistrate

judge also recommended dismissing the claim that Hebbe was

forced to choose between library access and outdoor exercise

in contravention of the Eighth Amendment because Hebbe

“concede[d] he had yard time and used the law library, and

fail[ed] to allege an inability to file or a rejection of a meritorious claim resulted from his having to divide his recreation

time between the yard and the law library.”

On April 19, 2002, the district court summarily upheld the

findings and recommendations of the magistrate judge and

adopted them in full. The district court granted the prison officials’ Motion to Dismiss Hebbe’s claims, with prejudice, dismissing both his claim that the prison officials impermissibly

restricted his court access during the lockdowns and his claim

that they unconstitutionally forced him to choose between

using the law library and exercising outdoors when the facility in which he was incarcerated was not on lockdown.6

5Hebbe filed an amended complaint on July 17, 2000, reiterating these

claims. 

6The sole claim to survive the motion to dismiss was Hebbe’s claim that

the prison denied him yard time during the lockdown periods, in violation

of the Eighth Amendment. On September 27, 2007, a jury returned a verdict in favor of the prison officials on this Eighth Amendment claim. 

18598 HEBBE v. PLILER
Hebbe timely appeals the district court’s ruling on these two

distinct constitutional claims.

II. ANALYSIS

We “review de novo a district court’s disposition of a

motion to dismiss pursuant to Rule 12(b)(6).” Coto Settlement

v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010). We apply

the standard for reviewing complaints that the Supreme Court

recently adopted in Iqbal v. Ashcroft, namely, that a complaint

may survive a motion to dismiss only if, taking all wellpleaded factual allegations as true, it contains enough facts to

“state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). Because Hebbe is an

inmate who proceeded pro se, his complaint “must be held to

less stringent standards than formal pleadings drafted by lawyers,” as the Supreme Court has reaffirmed since Twombly.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when

evaluating them under Iqbal.

7

 While the standard is higher,

our “obligation” remains, “where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”

Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en

banc). 

7We therefore join the five other circuits that have determined that pro

se complaints should continue to be liberally construed after Iqbal. See

McGowan v. Hulick, 612 F.3d 636, 640-42 (7th Cir. 2010); Bustos v. Martini Club Inc., 599 F.3d 458, 461-62 (5th Cir. 2010); Casanova v. Ulibarri,

595 F.3d 1120, 1124 n.2, 1125 (10th Cir. 2010); Capogrosso v. Sup. Ct.

of N.J., 588 F.3d 180, 184 & n.1 (3d Cir. 2009); Harris v. Mills, 572 F.3d

66, 71-72 (2d Cir. 2009) (noting that even following Twombly and Iqbal,

“we remain obligated to construe a pro se complaint liberally”). 

HEBBE v. PLILER 18599
A. Hebbe’s court access claim survives the motion to 

dismiss

Hebbe alleges that the prison officials violated his constitutional right to court access, grounded in the First Amendment

right to petition and the Fourteenth Amendment right to due

process, by denying him access to the prison law library while

the facility was on lockdown, and that the denial prevented

him from filing a brief in support of his appeal of his state

court conviction. 

[1] In 1977 the United States Supreme Court held that “the

fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the preparation

and filing of meaningful legal papers by providing prisoners

with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828

(1977). Nineteen years later, in Lewis v. Casey, the Court reiterated that penal institutions have a duty to afford prisoners

“a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” 518

U.S. 343, 351 (1996) (citing Bounds, 430 U.S. at 825). However, the Lewis Court narrowed the scope of Bounds by holding that there is no “abstract, freestanding right to a law

library or legal assistance[. A]n inmate . . . must . . . demonstrate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal

claim.” Id. at 351, 353 n.3. 

[2] The Court explained that its “actual injury” requirement meant that the state was not required to provide library

access to “enable the prisoner to discover grievances” that

might be aired, id. at 354 (emphasis in original), but rather

was required to provide such access to facilitate the prisoner’s

pursuit of a certain “type of frustrated legal claim,” such as

“direct appeals from the convictions for which [he] w[as]

incarcerated” or “actions under 42 U.S.C. § 1983 to vindicate

‘basic constitutional rights.’ ” Id. (citing Wolff v. McDonnell,

18600 HEBBE v. PLILER
418 U.S. 539, 579 (1974)). Thus, the “tools” that Lewis and

Bounds “require[ ] to be provided are those that the inmates

need in order to attack their sentences, directly or collaterally,

and in order to challenge the conditions of their confinement.”

Id. at 355. Hebbe’s claim that he was frustrated in his desire

to use the law library facilities to research the pro se brief that

he wished to file on direct appeal of his state court conviction

plausibly alleges exactly the type of “actual injury” discussed

in Lewis. Hebbe did not wish to go on a “fishing expedition”

to discover grievances, rather he wished simply to appeal his

conviction, as was his fundamental right.

[3] When Hebbe’s pro bono appellate counsel filed a

Wende brief and withdrew from his case on November 18,

1998, the California Court of Appeal correctly advised him of

his right to file, pro se, a supplemental appellate brief. Hebbe

unquestionably had a right to use the legal materials available

in the prison to research which issues he might address in that

brief. The fact that Hebbe’s former attorney had filed a Wende

brief did not affect his right to file his own brief or his right

to use the prison library facilities to research that brief. Nor

did the former attorney’s filing of the Wende brief necessarily

demonstrate that there were no nonfrivolous claims that

Hebbe might raise on direct appeal. As we held in Delgado

v. Lewis, the filing of a Wende brief does not show dispositively that an appeal is without merit. 223 F.3d 976 (9th Cir.

2000).

[4] Similarly, the fact that Hebbe entered a guilty plea did

not affect his right to appeal, nor did it affect his right to use

the prison library to research the pro se brief that he wished

to file in support of that appeal. Under California law, individuals who have pleaded guilty may nonetheless prevail upon

appeal in certain circumstances. See Cal. Penal Code

§ 1237.5(a) (stating that individuals who enter guilty pleas

may appeal on the basis of “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”). Hebbe thus had a right to use the prison law

HEBBE v. PLILER 18601
library to research the constitutional, jurisdictional, or other

issues he might raise on appeal.

[5] Lewis may not have “guarantee[d] inmates the wherewithal to transform themselves into litigating engines capable

of filing everything from shareholder derivative actions to

slip-and-fall claims,” Lewis 518 U.S. at 355, but it did guarantee individuals like Hebbe the right to use the prison law

library to “attack their sentences, directly.” Id. If true, the

facts Hebbe alleges would establish that he was impermissibly

denied the opportunity to appeal his conviction, which denial

would fulfill Lewis’s “actual injury” requirement. We therefore reverse the district court’s ruling on Hebbe’s first claim.

B. Hebbe’s Eighth Amendment claim survives the

motion to dismiss

Hebbe also alleges that the prison officials violated his

Eighth Amendment right to be free from cruel and unusual

punishment during the period of time totaling eight months in

which he was permitted to leave his cell for only two hours

per day, four days per week. He asserts that, during that time,

the prison officials impermissibly forced him to choose

between spending the eight hours per week on either using the

law library or exercising outdoors. 

[6] Forcing a prisoner to choose between using the prison

law library and exercising outdoors is impermissible because

“an inmate cannot be forced to sacrifice one constitutionally

protected right solely because another is respected.” Allen v.

City and County of Honolulu, 39 F.3d 936, 940 (9th Cir. 1994).8

8The prison officials urge, erroneously, that our holding in Allen applies

only to individuals held in segregated housing units or otherwise severely

restrictive conditions of confinement. No published opinion of our court

advances such a proposition and it is of little merit for constitutional purposes. What matters for cases such as the one before us is the amount of

time the prisoner is allowed out of his cell to access the law library and

18602 HEBBE v. PLILER
As we discuss supra, the Supreme Court in Lewis emphasized

the continued vitality of this rule, but held that an inmate’s

constitutional right to use of a law library was not “freestanding,” but rather predicated upon the pursuit of an “arguably

actionable” legal claim. Id. at 351. 

[7] Here, as Hebbe’s counsel underscored at oral argument, Hebbe wished to use the law library to research and file

his § 1983 complaint. The prison officials do not dispute that

Hebbe’s § 1983 action involves one or more non-frivolous,

“arguably actionable” legal claims—nor could they, given

that one of those claims, Hebbe’s claim that his Eighth

Amendment rights were violated when he was denied all outof-cell exercise during the seven month period that he was

held on lockdown, was tried to a jury. In addition to that

claim, Hebbe had other nonfrivolous claims to research as

well. The two counts that are now on appeal before us are certainly not frivolous. Hebbe also wished to use the law library

to research the state habeas petition that he filed in Sacramento Superior Court, a purpose that falls squarely under

Lewis’s definition of nonfrivolous legal research. See Lewis,

518 U.S. at 355 (interpreting Bounds as requiring prisons to

provide inmates with the legal research facilities that they

“need in order to attack their sentences, directly or collaterally”). 

[8] That Hebbe used the law library to research the § 1983

action during the time that he specifies in his complaint—i.e.

for out-of-cell exercise, not any other limitation imposed upon his freedom

or conditions to which he is subjected. Moreover, we note that there are

many similarities between Hebbe’s conditions of confinement and Allen’s.

Hebbe was on and off lockdown over the course of a 15-month period.

During periods totaling seven of those 15 months, he had no access to the

library and no out-of-cell exercise at all. When he was released from lockdown, Hebbe was allowed to leave his cell for only eight hours per week

to either exercise or use the law library. Allen was, similarly, allowed to

leave his cell for six hours per week to either exercise or use the law

library. Allen, 39 F.3d at 939. 

HEBBE v. PLILER 18603
from November 1998 to February 2000—is apparent both

from the face of the complaint and the timing of its filing. The

same is true of Hebbe’s state habeas petition, which was filed

on May 20, 1999. Construing Hebbe’s pro se complaint liberally, as we are required to do under Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam), we hold that Hebbe has plausibly alleged for the purposes of surviving a motion to dismiss

that he wished to research a nonfrivolous legal claim and thus

had a cognizable constitutional right to use the law library.

For the purposes of surviving a motion to dismiss, Hebbe

has therefore sufficiently alleged that prison officials violated

his Eighth Amendment rights because they forced him to

choose between his constitutional right to exercise and his

constitutional right of access to the courts for at least eight

months. Allen, 39 F.3d at 940. We therefore reverse the district court’s ruling and remand for further proceedings.

REVERSED and REMANDED.

FRIEDMAN, Circuit Judge, concurring:

I agree that, under the precedents of this court, the district

court should not have dismissed the two claims here at issue.

I write separately, however, to point out another aspect of the

case.

For Hebbe to recover damages in his § 1983 suit, he would

have to show that, had it not been for the two alleged constitutional violations to which he was subjected, he probably

would have succeeded in overturning his conviction. In light

of the events in this case, he seems unlikely to be able to

make that showing.

Hebbe, represented by counsel, entered into a plea agreement with California prosecutors, under which he pleaded

18604 HEBBE v. PLILER
guilty to two counts of burglary and was sentenced to eighteen years imprisonment. The California Court of Appeal, to

which he appealed his conviction, appointed pro bono counsel

for him. His counsel filed a so-called “Wende” brief, stating

that counsel could find no legitimate issue to argue on appeal.

The Court of Appeal permitted Hebbe’s appellate counsel to

withdraw and informed Hebbe that he could file pro se a supplemental appellate brief within thirty days. Hebbe did not do

so within that deadline. 

Hebbe asserts that the reason was because he was on “lockdown” in prison during that thirty-day period. He contends

that because of the lockdown, he was unable to use the prison

law library to research his proposed appeal, and therefore did

not discover a California statute that would have permitted

him to withdraw his guilty plea. He also argues that he was

subjected to cruel and unusual punishment because, during

non-lockdown periods, he was permitted to leave his cell for

only eight hours a week, which he could use either in the

library or for outdoor exercise. He contends that this required

him to make an unconstitutional choice.

It is not enough for Hebbe to raise these challenges to entitle him to recover under his § 1983 complaint. I believe he

also must establish that he had credible claims that his conviction on his plea was improper. Here, his appointed appellate

counsel could find no basis for challenging his conviction,

and the California Court of Appeal agreed with that conclusion. I think Hebbe would be required to show that his conviction based upon his guilty plea itself could be reasonably

challenged. It seems unlikely that he could make that showing.

HEBBE v. PLILER 18605