Opinion

Goolsby v. San Diego, County of

Court: District Court, S.D. California
Filed: Feb 18, 2020
Cited by: 0 cases
Authority: More cited than 19.0%

“If the prison allots a 14 standard number of hours per week for exercise, the prison officials are aware that 15 denial of this exercise for a substantial period creates an excessive risk to a 16 prisoner’s health.”

How later courts described this case

“If the prison allots a 14 standard number of hours per week for exercise, the prison officials are aware that 15 denial of this exercise for a substantial period creates an excessive risk to a 16 prisoner’s health.”
“[I]t is only when execution of a 13 government’s policy or custom inflicts the injury that the municipality as an entity 14 is responsible”
finding it impermissible for 12 prisoners to choose between using the prison law library and exercising outdoors
violation found on allegations of 39 22 day deprivation of exercise

Written by the judges who cited it.

The opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

Case No.: 17cv564-WQH (NLS)

11 THOMAS GOOLSBY,

12 Plaintiff, REPORT AND

RECOMMENDATION FOR

13 v. ORDER GRANTING IN PART

AND DENYING IN PART

14 DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

15 COUNTY OF SAN DIEGO, et al.,

[ECF No. 137]

16 Defendants.

19 Before the Court is Defendants’ motion for summary judgment. ECF No.

20 137. For the reasons outlined below, the Court RECOMMENDS that the district

21 judge GRANT IN PART AND DENY IN PART Defendant’s motion for

22 summary judgment.

23 I. PROCEDURAL BACKGROUND

24 Plaintiff Thomas Goolsby (“Plaintiff”), a prisoner proceeding pro se and in

25 forma pauperis, filed this civil rights action under 42 U.S.C. § 1983 claiming that

26 Defendants violated his Eighth and Fourteenth Amendment rights stemming from

27 his incarceration at the George Bailey Detention Facility and San Diego County Jail

28 between December 12, 2016 and May 17, 2017. ECF No. 15 (Third Amended

1 Complaint). Plaintiff’s complaint alleges three claims: (1) lack of Fourteenth

2 Amendment due process in his classification and extended placement in

3 administrative segregation; (2) conditions of confinement that violate his Eighth

4 Amendment rights, specifically, depriving him of sleep; and (3) conditions of

5 confinement that violate his Eighth Amendment rights, specifically, depriving him

6 outdoor exercise.

7 Defendants filed a motion to dismiss in which the Court granted in part and

8 denied in part. ECF No. 97. The Court dismissed Plaintiff’s Eighth Amendment

9 claims regarding conditions of confinement based on sleep deprivation as to all

10 defendants, but permitted him to proceed on his Fourteenth Amendment claims

11 regarding placement in administrative segregation against the County of San Diego

and his Eighth Amendment claims regarding denial of outdoors and out of cell

exercise against the County of San Diego. Id. at 10. All other individual

defendants were dismissed from the case. Id.

After the close of discovery, Defendant County of San Diego filed a motion

for summary judgment. ECF No. 137. The Court notified Plaintiff of the

requirements for opposing summary judgment pursuant to Klingele v. Eikenberry,

849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)

(en banc). ECF No. 138. Plaintiff filed an opposition, Defendant filed a reply, and

Plaintiff filed a sur-reply. ECF Nos. 147, 150, 152.

II. FACTUAL BACKGROUND

The claims that remain in this litigation center around two events: (1)

Plaintiff’s placement into administrative segregation when he arrived at San Diego

Central Jail in December 2016, and (2) Plaintiff’s access to outdoor exercise at the

George Bailey Detention Facility and San Diego Central Jail, starting February 7,

2017.

1 A. Administrative Segregation

2 On December 12, 2016, Plaintiff was transferred from the California

3 Department of Corrections to San Diego County Central Jail. ECF 147 (Goolsby

4 Decl.) at 48, ¶ 5.1 Plaintiff was issued green clothing and a green wristband. Id. at

5 2, ¶ 6. At some point during Plaintiff’s intake and booking process, Deputy Frankie

6 Leon and Plaintiff spoke about Plaintiff’s prior housing placements, rules

7 violations, and gang affiliations. Id.; ECF 137-5 (Leon Decl.) at 3, ¶ 9. Prior to the

8 conversation, Deputy Leon familiarized himself with Plaintiff’s Jail Information

9 System History. Id. at 2, ¶ 7. During the conversation, Plaintiff indicated he was

10 previously identified as a gang member by an Institutional Gang Investigator while

11 in Tehachapi State Prison. Id. 3, ¶ 10. As a result of Plaintiff’s gang verification, a

field interview was conducted to document any tattoos. ECF 137-2 (Froistad Decl.)

at 5, ¶ 26. Deputy Campos conducted the field interview. ECF 137-2 (Exh. I) at

70-85.

Deputy Leon then drafted a report recommending that the Plaintiff be housed

in administrative segregation. ECF 137-2 (Exh. G) at 63-64. Sergeant Rose

approved the suggestion the following day. Id. Pursuant to Deputy Leon’s

recommendation, Plaintiff was transferred into administrative segregation. ECF

137-5 (Leon Decl.) at 4, ¶ 14. On December 14, 2016, Plaintiff filed a grievance

form contesting his placement in administrative segregation. ECF 137- 2 (Exh. H)

at 66-68. The following day, December 15, 2016, Sergeant Lawson received and

responded to Plaintiff’s grievance. ECF 137–2 (Exh. J) at 87-88. Sergeant Lawson

informed Plaintiff he was not deprived of due process or privileges as an inmate in

the County of San Diego. Id.

26 1 All page number references use the header generated by CM/ECF. For

27 references to the Plaintiff’s Third Amended Complaint in particular, paragraph

references are to the paragraphs as numbered by Plaintiff.

1 B. Outdoor Exercise

2 Plaintiff was housed at the George Bailey Detention Facility during the

3 period of February 7, 2017 to February 27, 2017 and from April 20, 2017 to May

4 17, 2017. ECF No. 137-6 (Mendoza Decl.) at 2, ¶ 6. He was housed in various

5 modules at San Diego Central Jail for the time in between, from February 27, 2017

6 to April 20, 2017. Id.

7 Plaintiff alleges and states during his deposition and in his declaration that he

8 never received any out of cell exercise or recreation yard time after February 7,

9 2017. ECF No. 15 at ¶ 108; ECF No. 147 (Goolsby Decl.) at 51-52, ¶ 16. He

10 further states that he never once refused yard time when he was offered. ECF No.

11 147 (Goolsby Declaration) at 52, ¶ 17.

Defendant instead presents evidence from Deputy Sheriff Mendoza that

Plaintiff was offered a total of 23 days of yard time between February 7 to May 17,

2017, for a total of 46.5 hours, averaging 3.875 hours per week. ECF No. 137-6

(Mendoza Decl.) at 2-3, ¶¶ 8-13. Of these offered days, Deputy Mendoza states

that Plaintiff started recreation time at least 12 times. Id. at 3, ¶¶ 10-11.

Plaintiff also alleges and states in his deposition and declaration that on

March 6, 2017, he filed a grievance regarding his lack of exercise time, which was

handed to and accepted by M.R. Meza. ECF No. 147 (Goolsby Decl.) at 52, ¶ 19;

ECF No. 137-2 (Goolsby Dep.) at 39:12-25, 40:21-41:1. Plaintiff states he did not

receive a response to this grievance. ECF No. 147 (Goolsby Decl.) at 52, ¶ 19;

ECF No. 137-2 (Goolsby Dep.) at 41:2-42:6. Plaintiff also states that later in

March or early April 2017, he wrote a letter to Sheriff Gore complaining about the

same issue and he also never received a response to this letter. ECF No. 147

(Goolsby Decl.) at 53, ¶ 24; ECF No. 137-2 (Goolsby Dep.) at 42:7-43:18.

1 III. Legal Standard

2 Summary judgment is appropriate “if the movant shows that there is no

3 genuine dispute as to any material fact and the movant is entitled to judgment as a

4 matter of law.” Fed. R. Civ. P. 56(a); Celotex. Corp. v. Catrett, 477 U.S. 317, 322

5 (1986). A fact is material when it affects the outcome of the case. Anderson v.

6 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

7 “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for

8 the nonmoving party. Id.

9 The moving party can establish an absence of a genuine issue of material fact

10 by (1) presenting evidence that negates an essential element of the non-moving

11 party’s case; or (2) demonstrating that the nonmoving party failed to establish an

essential element of that party’s case. Celotex, 477 U.S. at 322-323. The moving

party must identify the pleadings, depositions, affidavits or other evidence that the

party “believes demonstrates the absence of a genuine issue of material fact.” Id. at

323. If the moving party fails to bear the initial burden, summary judgment must

be denied and the court need not consider the nonmoving party’s evidence. Adickes

v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets its burden, the non-moving party must “go beyond

the pleadings and by his own affidavits, or by ‘the depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.

56(e)). “Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 US. 253, 289 (1968)). In making

this determination, the court must view the underlying facts in the light most

favorable to the party opposing the motion. Id. The court should not engage in

1 credibility determinations, weighing of evidence, or drawing of legitimate

2 inferences from the facts; these functions are for the trier of fact. Anderson, 477

3 U.S. at 255.

4 IV. Discussion

5 A. Administrative Segregation Placement

6 Defendant County of San Diego bears the burden of establishing the absence

7 of a genuine issue of material fact and demonstrating its entitlement to judgment as

8 a matter of law. See Celotex, 477 at 323. Here, the Defendant fails to satisfy its

9 initial burden. For the reasons explained below, the Court recommends the District

10 Judge deny Defendant’s motion for summary judgment as to this claim.

11 The Fourteenth Amendment provides, “[n]o State shall… deprive any person

of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,

§ 1. Prisoners who wish to invoke due process protections must establish the

existence of a protected interest and show it was denied without due process.

Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The Constitution itself does not

confer on inmates “a liberty interest in avoiding transfer to more adverse conditions

of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Administrative

segregation in and of itself typically does not implicate a liberty interest. Serrano v.

Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).

However, state regulations may create a liberty interest where the nature of the

confinement “imposes atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.”2 Id. at 222. In such cases where a liberty

interest does exist, due process requires:

Prison officials must hold an informal nonadversary hearing within a

25 reasonable time after the prisoner is segregated. The prison officials

26 2 The Court has previously found a sufficient liberty interest in this case, see

27 ECF No. 86 at 21, and neither party directly re-raises this issue on summary

judgment.

1 must inform the prisoner of the charges against the prisoner or the

2 reasons for considering segregation. Prison officials must allow the

prisoner to present his views.

Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). Due Process does not

require “detailed written notice of charges, representation by counsel or counsel-

substitute, an opportunity to present witnesses, or a written decision describing the

reasons for placing the prisoner in administrative segregation.” Id. at 1100–01.

Additionally, prison officials must have “some evidence” to support their decision

to place an inmate in segregation for administrative reasons. Bruce v. Ylst, 351

F.3d 1283, 1287 (9th Cir. 2003) (citing Superintendent v. Hill, 472 U.S. 445, 455

(1985)).

First, Defendant must demonstrate there is no genuine issue of material fact

regarding Plaintiff’s due process claims. See Anderson 477 U.S. at 247. Defendant

asserts no genuine issue of material fact exists because according to Plaintiff’s own

recitation of events, Plaintiff received the requisite due process protections. ECF

150 at 2-3. As set forth by Defendant, the facts that support granting summary

judgment are:

18 Plaintiff alleges that he spoke with two deputies including Deputy

Leon prior to his placement in administrative segregation [Plaintiff

Dec. ¶ 6]. He admits these deputies asked him several questions and

20 Plaintiff responded to those questions. Id. They allegedly asked

whether he was “slammed” in the state [Id.] Plaintiff responded no, he

was in general population, and that he had CDCR documents to prove

22 it. [Id.] Plaintiff had the opportunity to explain that during a previous

stay in County custody he was told that if he was housed in general

population at the CDCR, he would be in general population while in

24 County custody. [Id.] He also told the deputies that he was in

segregated housing during a previous stay in County custody due to

“bogus gang validations” and rule violations [Id.] One of the deputies

26 allegedly replied as long as Plaintiff was truthful[,] he could be housed

in general population. [Id.] “Very soon” after Plaintiff’s placement in

administrative segregation, he submitted a grievance [Plaintiff Dec. ¶

28 9] … Sergeant Lawson responded to that grievance, and Plaintiff soon

1 after submitted a second grievance. [NOL Exb. J, Sergeant Lawson’s

2 response to Plaintiff’s Grievance. [Exb. J]; Plaintiff Dec. ¶ 9.]

Id. at 2. From these facts, Defendant concludes “it is undisputed that Plaintiff

received the requisite due process protections prior [to] his placement in the

administrative segregation unit.” Id. at 3. Defendant also argues that the Plaintiff

had ample opportunities to present his views to jail staff and contest his housing

assignment, therefore “the classification evaluation, grievances, and grievance

reviews provided an informal non-adversarial process for Plaintiff to contest his ad-

seg placement.”3 ECF 137-1 at 13.

Plaintiff argues that Defendant did not provide the requisite due process for

multiple reasons. Specific to the informal nonadversary hearing requirement,

Plaintiff rejects the Defendant’s categorization of the classification evaluation as an

13 informal non-adversary hearing. ECF 147 at 8. Plaintiff also argues the hearing

14 was never held because Plaintiff did not have the opportunity to present his views

15 to the person with ultimate decision-making authority. Id. at 8:19–24.

16 Defendant fails to demonstrate the absence of a genuine issue of material

17 fact. The context of the interaction between Deputy Leon and Plaintiff is material

18 to determining whether a sufficient “informal nonadversary hearing” occurred. On

19 the one hand, Deputy Leon’s declaration consistently indicates an “interview” was

20 conducted between himself and Plaintiff before Plaintiff was placed in

21 administrative segregation. See ECF 137-5 (Leon Decl.) at 3, ¶¶ 9-11. According

22 to his declaration, he asked a series of questions to Plaintiff, which he answered,

23 and that at the end of the “interview,” he told Plaintiff that he would be placed in

24 administrative segregation because of his open admittance to being a member of a

25 prison gang. Id. at ¶ 10.

26 Plaintiff’s account does not dispute that there was an interaction between the

3 Defendant cites no case law to support this argument.

1 himself and Deputy Leon but raises questions about the meaningfulness of the

2 interaction and whether Plaintiff was aware that it was the actual classification

3 interview. See ECF 150, Pl.’s Decl., at ¶ 6. According to Plaintiff, the

4 conversation occurred when, “I [Plaintiff] was in the middle of stripping out when

5 he [Deputy Leon] came in and stuck his head in the door and said, “Hey, Goolsby,

6 where are you coming from?” ECF 137-2 (Goolsby Dep.) at 35-39. Plaintiff’s

7 declaration provides further details on his account of the interaction:

8 “I was given green colored jail clothing to dress in. As I was dressing,

9 two deputies came in, one asked me where I was coming from? I told

him Kern Valley State prison. He then asked me if I was slammed in

10 the State? I told him no, that I was on the general population yard and

11 had CDCR records with me to prove it. I told him I have been in the

past for a bogus gang validation and rule violations and was slammed

in County custody in 2008 because of it. But Sgt. Rose told me if I

13 could prove I was mainline in CDCR I can be mainline here. The

deputy told me as long as that was true I would be going to mainline

here, but he needed to talk to his supervisor who make housing

15 decisions, he can only make recommendations. The other deputy took

pictures of my tattoos and they both left.”

ECF No. 147 (Goolsby Decl.) at 48, ¶ 6.

The driving force of the requirements under Touissant and due process

generally is to ensure that a prisoner gets some notice of the reasons why he may be

placed in administrative segregation and to ensure he has some opportunity to be

heard in opposition. Plaintiff’s testimony as to the conversation—which happened

while he was changing clothes—raises some questions as to whether the

environment and context was sufficient for the inmate to receive the proper notice

and opportunity to present his or her view. Even the County Sheriff’s Department

Jail Population Management Unit Training Manual contemplates a more formal

26 interaction between an inmate and the deputy during the classification interview.

27 See ECF 147 (Exh. D) at 102. For example, the manual states, “the inmate will be

28 interviewed in one of the Classification interview booths,” that the inmate should

1 be seated at all times, and not be permitted to touch the interview desk. Id.

2 Taking the evidence in the light most favorable to the Plaintiff, a genuine

3 issue of material fact exists regarding whether an informal nonadversary hearing

4 occurred.4 It is thus more appropriate for the trier of fact to determine whether the

5 Toussaint factors were satisfied. The Court recommends that summary judgment

6 be denied on this claim.5

7 B. Exhaustion of Administrative Remedies Related to Outdoor

8 Exercise

9 The County next moves for summary judgment on the issue of whether

10 Plaintiff sufficiently exhausted his administrative remedies as to his recreation yard

11 claims. ECF No. 137-1 at 13-15.

12 When defendants seek summary judgment based on the plaintiff’s failure to

13 exhaust specifically, they must first prove that there was an available administrative

14 remedy and that plaintiff did not exhaust that available remedy. Williams v.

15 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino v. Baca, 747 F.3d

16 1162, 1172 (9th Cir. 2014) (quotation marks omitted). If they do, the burden of

17 production then shifts to the plaintiff “to show that there is something in his

18 particular case that made the existing and generally available administrative

19 remedies effectively unavailable to him.” Williams, 775 F.3d at 1191; see also

20 Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016). Only “[i]f the undisputed evidence

21 viewed in the light most favorable to the prisoner shows a failure to exhaust, [is] a

22 4 Additionally, Defendant cites to no case law to show that the interaction

23 between the two satisfied the minimum due process required for a prison inmate in

this situation.

24 5 Defendant filed objections to information in Plaintiff’s opposition to the

summary judgment motion related to this claim. ECF No. 150-2. First, Defendant

25 objected to Plaintiff’s arguments and evidence related to his 2019 stay in county

custody because this occurred after the claimed events. Id. at 3. Second, Defendant

26 objected to Plaintiff’s arguments and evidence related to 7-day reviews because it

was not encompassed in the Third Amended complaint. Id. at 4. Because the Court

27 does not rely on either of these arguments and evidence in its order, these

objections are overruled as moot.

1 defendant is entitled to summary judgment under Rule 56.” Albino, 747 F.3d at

2 1166.

3 The Prisoner Litigation Reform Act (“PLRA”) provides that “[n]o action

4 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

5 other Federal law, by a prisoner confined in any jail, prison, or other correctional

6 facility until such administrative remedies as are available are exhausted.” 42

7 U.S.C. § 1997e (a). Therefore, exhaustion is “mandatory” before bringing a federal

8 action. Ross, 136 S. Ct. at 1856; see Porter v. Nussle, 534 U.S. 516, 524 (2002). A

9 prisoner is not required to plead exhaustion in his complaint; it is an affirmative

10 defense that must be raised and proven by a defendant. Jones v. Bock, 549 U.S.

11 199, 216 (2007).

The Supreme Court has “held that to properly exhaust administrative

remedies prisoners must ‘complete the administrative review process in accordance

with the applicable procedural rules,’ []—rules that are defined not by the PLRA,

but by the prison grievance process itself.” Id. at 218 (quoting Woodford v. Ngo,

548 U.S. 81, 88 (2006) (internal citation omitted)). The exhaustion requirement

offers the prison a chance to resolve the issue on its own and “promotes efficiency”

by allowing claims to be resolved more quickly than litigation. Woodford, 548 U.S.

at 90. Thus, a prison’s own grievance process, not the PLRA, determines how

detailed a grievance must be to satisfy the exhaustion requirement. Jones, 549 U.S.

at 218.

Grievance procedures are available if they are “‘capable of use’ to obtain

‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting

Booth v. Churner, 532 U.S. 731, 738 (2001)); see also Williams, 775 F.3d at 1191

(“To be available, a remedy must be available ‘as a practical matter’; it must be

‘capable of use; at hand.’”) (quoting Albino, 747 F.3d at 1171).

1 i. Recreation Yard Claims at George Bailey Detention Facility

2 Plaintiff was housed at George Bailey Detention Facility between February

3 7, 2017 and February 27, 2017 and April 20, 2017 to May 17, 2018. ECF No. 150

4 at 7; ECF No. 137-6 (Mendoza Decl.) at 2, ¶ 6. Plaintiff himself does not dispute

5 that he did not file any grievances during this time period as to recreation yard

6 time.6 ECF No. 137-2 (Goolsby Decl.) at 95:5-19 (Plaintiff testifying at his

7 deposition that he did not file any such grievances). Plaintiff also does not contest

8 this in his opposition brief. Rather, his argument is that he did not do so because no

9 administrative remedies were available to him. ECF No. 147 at 23-25.

10 Specifically, Plaintiff argues that it was Defendant’s policy to not respond to

11 grievances, effectively making it futile for him to submit any. Id. As evidence of

this “policy,” Plaintiff cites to several grievances he filed that he claims were never

responded to, a letter to Sheriff Gore complaining that his grievances were going

unanswered, and declarations from two other prisoners that also complained about

grievances going unanswered. Id. at 23.

However, even if some grievances were going unanswered, Plaintiff does not

cite to any case that would suggest that this excuses him from having to at least

attempt to file a grievance in the first place. To the contrary, it appears that

Plaintiff did exactly that with the other grievances he filed. Specifically, as

discussed below, Plaintiff did file a grievance regarding lack of recreation time

when he was placed in San Diego Central Jail after his time at George Bailey.

Failing to file grievances in the first place defeats one of the primary purposes of

the grievance process—to put the prison on notice of an issue. See, e.g. Griffin v.

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“The primary purpose of a grievance

6 Plaintiff points to several grievances he filed in his opposition, but none

cover this issue of recreation yard time at George Bailey. See ECF No. 147 at 163

27 (Ex. N) (dated 2/7/2017 but referring to placement in solitary confinement); id. at

201-205 (Ex. S) (grievances dated June and September 2019).

1 is to alert the prison to a problem and facilitate its resolution.”). Further, at least

2 one court in the Ninth Circuit has rejected similar arguments as the one Plaintiff

3 makes here with regard to a widespread policy of not handling grievances properly

4 excusing the exhaustion requirement. See Wolf v. Otter, No. 1:12-CV-00526-BLW,

5 2014 WL 2504542, at *5 (D. Idaho June 3, 2014), aff’d sub nom. Wolf v. Idaho

6 State Bd. of Corr., 772 F. App’x 557 (9th Cir. 2019) (finding Plaintiff did not

7 sufficiently exhaust when he failed to submit a grievance in the first place because

8 “the allegation that some grievances filed by other inmates were not answered does

9 not give rise to an inference that Plaintiff [] exhausted all available remedies with

10 respect to his claims in this action”). Accordingly, the Court finds that Plaintiff has

11 not exhausted his administrative remedies as to his recreation yard claims while he

was held at George Bailey Detention Facility and recommends that summary

judgment be granted in favor of Defendant on this issue.

ii. Recreation Yard Claims at San Diego Central Jail

Defendant also moves for summary judgment on whether Plaintiff properly

exhausted his administrative remedies as to recreation yard time at San Diego

Central Jail. ECF No. 137-1 at 15. Defendant does not appear to dispute that a

grievance was filed. See id. However, rather than attach a copy of the grievance,

Defendant cites to Plaintiff’s allegations in his Third Amended Complaint and his

deposition for a description of the grievance. According to Plaintiff’s complaint, he

submitted a grievance to M.R. Mesa on March 6, 2017 for denial of out-of-cell

exercise. ECF No. 15 at ¶ 103. Plaintiff stated the same in his deposition. ECF

No. 137-2 (Goolsby Dep.) at 40:21-43:1. Plaintiff states that he never received a

response to this initial grievance and so he never appealed it any further. ECF No.

15 at ¶ 103; ECF No. 137-2 (Goolsby Dep.) at 41:2-4. This version of the facts as

Defendant puts forth is not disputed by Plaintiff.

1 Defendant argues that Plaintiff failed to exhaust his administrative remedies

2 because he failed to take further action after he received no response from the

3 original grievance he filed. For example, Defendant argues that Plaintiff could

4 have alerted a deputy to his outstanding grievance or filed another grievance about

5 the nonresponse. ECF No. 137-1 at 15.

6 However, many courts within the Ninth Circuit have held that as long as a

7 prisoner waits a reasonable amount of time for a response, the failure of the prison

8 to respond in a timely fashion sufficiently exhausts administrative remedies and

9 deems further relief at the administrative level “unavailable.” See, e.g. Rupe v.

10 Beard, No. CV-08-2454-EFS PC, 2013 WL 2458398, at *16 (E.D. Cal. June 6,

11 2013) (noting that a prisoner cannot file suit within “a mere one or two days after

an appeal-response deadline has passed” but that “after the inmate has waited a

reasonable period of time and has received no response or notice of delay, the

failure by prison officials to abide by inmate-grievance regulations must excuse the

inmate’s failure to exhaust; otherwise, prison officials could indefinitely delay

inmates from pursuing legal remedies simply by ignoring all inmate appeals”);

Cotton v. Cate, No. C 13-3744 WHA (PR), 2015 WL 1246114, at *3 (N.D. Cal.

Mar. 17, 2015) (rejecting the argument that a prisoner had to appeal to second and

third levels after receiving no response at the first level on summary judgment

because the prison “does not cite any authority that a California inmate who has

received no response at the first level of review may nevertheless proceed to the

second and third levels of review, or any authority that the PLRA requires inmates

generally to proceed to higher levels of review when prison officials do not respond

at the lower levels”); Courson v. Cochran, No. 08-CV-0871 JAH(LSP), 2009 WL

10725678, at *5–6 (S.D. Cal. Feb. 19, 2009), report and recommendation adopted,

No. 08CV0871 JAH (LSP), 2009 WL 10725718 (S.D. Cal. June 24, 2009) (“Prison

authorities cannot have it both ways - they cannot obstruct an inmate’s pursuit of

1 administrative remedies exhaustion by failing to comply with statutory procedure

2 on the one hand, and then claim that the inmate did not properly exhaust these

3 remedies on the other.”) (citation omitted); Exmundo v. Scribner, No. 1:06-CV-

4 00205-AWI, 2011 WL 3322608, at *1 (E.D. Cal. Aug. 2, 2011) (noting that “there

5 is authority for the proposition that if a prisoner submitted a timely inmate appeal in

6 compliance with the governing regulations and his appeal received no response, or

7 received a response only after an extraordinary delay, the prisoner has satisfied the

8 exhaustion requirement”); Jones v. Blanas, No. CIV S-03-0119DFLDADP, 2005

9 WL 1868826, at *3 (E.D. Cal. Aug. 3, 2005) (noting that “many Circuit Courts

10 have addressed the effect of prison officials’ failure to respond to grievances in a

11 timely manner, and have held that exhaustion occurs when prison officials fail to

respond to a grievance within the applicable time limits” and that “if an inmate

attempts to exhaust administrative remedies, but that effort is thwarted or ignored,

the exhaustion of “available” remedies has been satisfied”). Thus, against this legal

background, the Court cannot find that Defendant has met its burden to show the

absence of exhaustion if it cannot show that it responded to Plaintiff’s grievance in

a timely manner.

Defendant also argues that the grievance should have only covered the time

period through March 6, 2017 and nothing later—i.e. the time period from when

Plaintiff entered San Diego Central Jail to the date he filed the grievance. ECF No.

137-1 at 15. Defendant implores the Court to find that Plaintiff did not file a

grievance as to other time periods and therefore, failed to exhaust as to those time

periods. Id. Without submitting as evidence the actual grievance, the Court cannot

confirm whether the grievance itself mentions any dates. If not, the only reason a

date would be read into the grievance would be because it was filed on March 6,

2017. The only other evidence that is relevant to this issue is Plaintiff’s own

1 deposition testimony, where he states testified that the grievance was focused on

2 specific dates:

3 Q. And the grievance to M.R. Meza, did it -- was it alleging that

4 you never received any rec yard or was it focused on specifically

dates?

5 A. I believe it was specific dates. I have to double check. I haven't -

6 - I haven’t looked at it in a while, but I believe it was since -- I think

it’s February 7, that's usually the date because once I left 7-E, I didn't -

7 - because that was before I went back. So I believe -- yeah, since 7-E

8 that I haven’t received any out-of-cell exercise. I believe I put that on

there.

9 Q. Did you file any subsequent grievances while you were in --

10 regarding out-of-cell exercise while you were in 6-E or 5-E or George

Bailey 5-A?

11 A. I don’t believe so, no.

12 Q. Why did you decide not to file any subsequent grievances?

A. Because they weren’t -- the officers were not following the

grievance procedures and responding to my grievances so I felt it was

14 pointless and I had no available -- administrative remedies available.

ECF No. 137-2 (Goolsby Dep.) at 43:19-44:14.

The issue of what time period should be covered by Plaintiff’s grievance

presents a closer question. On one hand, Defendant does not cite to any authority

as to why the grievance must end on the date of its filing if it complains about an

ongoing issue. The grievance should be sufficient to place the prison on notice of

the problem generally and give officials an opportunity to investigate and remedy

the situation, fulfilling the purpose of the exhaustion requirement. Defendants do

not provide any argument as to why changing housing modules would have

necessarily changed the out of cell exercise regimen that Plaintiff would have faced.

On the other hand, Plaintiff’s own testimony suggests that he realized he could have

filed more grievances but the reason he did not was that he believed they would

have gone unanswered. Plaintiff also did testify that the grievance was to “specific

dates” but that he needed to check those dates. Later, he says that it was from the

1 time he left 7E—suggesting that maybe the specific date he was referring to might

2 refer to the start date but would not necessarily constrain an end date.

3 However, on summary judgment, the Court must view the evidence in the

4 light most favorable to the nonmoving party—here, Plaintiff—and the burden of

5 showing lack of exhaustion rests with Defendant. Plaintiff’s uncontroverted

6 grievance was sufficient to put the prison on notice of his complaints regarding lack

7 of out of cell exercise and Defendant has not provided any authority for why this

8 grievance must be considered to end on the day it was filed when it complains of an

9 ongoing issue. It is also not in dispute that the grievance was never answered by

10 the prison, and many courts within this circuit have found this sufficient to make

11 further action “unavailable” to the prisoner. See infra at 14-15. Accordingly, the

Court finds that Defendant has not shown on summary judgment that Plaintiff

failed to exhaust his administrative remedies as to his recreation yard claims while

he was held at San Diego Central Jail from February 27, 2017 to April 20, 2017

(see ECF No. 137-6 (Mendoza Decl.) at 2, ¶ 6) and recommends that summary

judgment be denied on this issue.

C. Denial of Outdoor Exercise

The County also moves for summary judgment on the issue of whether

Plaintiff has sufficiently stated a claim under the Eighth Amendment’s prohibition

against cruel and unusual punishment based on his lack of access to the outdoor

recreation yard. ECF No. 137-1 at 15-19.

An Eighth Amendment claim that a prison official has deprived inmates of

humane conditions of confinement must meet two requirements, one objective and

one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under the objective

requirement, the prison official’s acts or omissions must deprive an inmate of “the

minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman,

1 452 U.S. 337, 347 (1981)). The subjective requirement, relating to the defendant’s

2 state of mind, requires deliberate indifference. Farmer, 511 U.S. at 834.

3 Deprivation of outdoor exercise violates the Eighth Amendment rights of

4 inmates confined to continuous and long-term segregation.” Keenan v. Hall, 83

5 F.3d 1083, 1089 (1996); see also Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

6 1979) (“There is substantial agreement among the cases in this area that some form

7 of regular outdoor exercise is extremely important to the psychological and physical

8 well-being of the inmates.”).

9 Some cases where a constitutional violation was found involved situations

10 where inmates were in continuous and prolonged segregation where they rarely

11 received outdoor exercise. See, e.g., Spain, 600 F.2d at 199-200 (prisoners were in

segregation permanently and for four years); Toussaint v. Yockey, 722 F.2d 1490,

1492-93 (9th Cir. 1984) (prisoners were in cells for up to 23.5 hours per day and

most were in segregation for over a year); Thomas v. Ponder, 611 F.3d 1144, 1151

(9th Cir.2010) (prisoner was denied outdoor exercise for almost 14 months)..

However, cases within this district have found violations based on shorter periods

of deprivations as well. Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000)

(violation found where prisoners were denied all exercise for 6.5 weeks); Allen v.

Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994) (violation found where prisoners were

only provided 45 minutes of exercise a week for 6 weeks); Norwood v. Woodford,

583 F. Supp. 2d 1200, 1204 (S.D. Cal. 2008) (violation found on allegations of 39

day deprivation of exercise); but see Hayward v. Procunier, 629 F.2d 599, 603 (9th

Cir. 1980) (emergency lockdown necessitating 28 day exercise deprivation was

constitutional).

i. Objective Prong

Defendant argues that Plaintiff cannot show that he was deprived of “the

minimal civilized measure of life’s necessities” because he was provided sufficient

1 opportunities to have outdoor recreation time. In support, they submit as evidence a

2 declaration for Detentions Deputy Sheriff Mendoza who testifies that he reviewed

3 the records from the Jail Information Management System (JIMS) and deduced that

4 between February 7, 2017 to May 17, 2017, Plaintiff ultimately was offered

5 recreation time for 23 days, for a total of 46.5 hours, which averages 3.875 hours

6 per week.7 ECF No. 137-6 (Mendoza Decl.).8

7 Specifically, Mendoza testifies that between that time period, Plaintiff had 32

8 days of scheduled exercise time. Id. at ¶ 7. On 20 of these days, there was a record

9 in the system regarding exercise time. Id. at ¶ 8. Plaintiff was shown to have

10 refused recreation yard time 7 times, and started it 5 times—for a total of 12 times.

11 Id. at ¶ 10. No exercise time occurred on the remaining 8 days because of a reason

such as short staffing, critical incidents, inclement weather, or needing to use the

space as a holding cell. Id. at ¶¶ 8, 10. For the remaining 12 days, though Plaintiff

was scheduled to have exercise time, there was no entry in the system. Id. at ¶ 9.

Mendoza explains that this does not mean he did not have exercise time and it may

just not have been recorded in the system. Id. In addition to the scheduled days,

Mendoza testifies that Plaintiff received 11 additional unscheduled days as make up

for when the recreation yard was unavailable—out of these, Plaintiff started yard

time 7 times and refused 4 times. Id. at ¶ 11. Thus, Mendoza concludes that

Plaintiff was offered recreation time 23 days during the time period for a total of

7 The Court will accept this 3.875 hours number but notes that Defendant

does not explain how it is calculated. Between February 7, 2017 to May 17, 2017,

23 there are 99 days, which translates to 14 weeks and 1 day. 46.5 hours divided by 14

weeks is 3.32 hours per week.

24 8 The Court notes that part of this time period includes times for which

25 Plaintiff was at George Bailey Detention Facility which the Court recommends be

found not exhausted above. However, since no actual records were included by

Defendant and Mendoza only testifies as to this time period, the Court cannot

27 independently calculate exercise time for the remaining time period at San Diego

Central Jail. The Court will thus rely on this time period for this discussion.

1 46.5 hours.9 Over 23 days, that averages to 3.875 hours per week where exercise

2 time was offered. Id. Defendant argues that this record shows that Plaintiff was

3 offered a constitutionally appropriate amount of exercise time and that it also

4 comports with Title 15 regulations which require that county jails provide inmates

5 with a minimum of 3 hours of recreation time every seven days. See Minimum

6 Standards for Local Detention Facilities, Exercise and Recreation, Cal. Code Regs.

7 tit. 15, § 1065.

8 Plaintiff refutes this evidence.10 He argues that Defendant did not submit any

9 actual records from JIMS substantiating Mendoza’s declaration and instead, states

10 in his declaration that he never received any exercise time between February 7 to

11 May 15, 2017. ECF No. 147 at 30; id. at 51-52 (Goolsby Decl.) at ¶ 16. As

evidence, he submits some printouts from the San Diego Sheriffs Department’s

Inmate History Summary Report. One report, with a begin date of December 12,

2016 to May 17, 2017, shows that Plaintiff’s inmate status went to “RECS” only 4

times—on December 15 and 16 and January 12 and 27—none of which fall in the

17 9 Defendant does not provide an exact explanation at how Mendoza arrives

that this number, but explains that San Diego Central Jail had 1.5 hour exercise

18 increments and George Bailey Detention Facility had 3 hour exercise increments.

19 ECF No. 137-6 at ¶ 13.

10 In Defendant’s Objection to Information in Plaintiff’s Opposition,

20 Defendant requests that the Court disregard the arguments and evidence Plaintiff

21 submits on being offered recreation time at night and having to choose between

sleep and exercise. ECF No. 150-2 at 2. Defendant argues that Plaintiff’s

complaint did not include allegations between having to choose between sleep and

23 exercise and that his sleep deprivation claims have been dismissed. ECF No. 150-2

at 3-5. The Court overrules these objections. It is true that Plaintiff’s sleep

deprivation claims were dismissed but those claims related to the lighting schedule

25 at the jail, noise caused by mentally ill patients, volume of the television, and late

night razor drop-offs and cell counts. ECF No. 97 at 4-5. This claim is distinct

from the lack of sufficient exercise claim at issue here. The Court finds that the

27 evidence objected to here is encompassed and relevant to what Plaintiff raised in his

Third Amended Complaint.

1 time period at issue here. ECF No. 147 (Ex. Z) at 239. Another report covering the

2 same time period showed two dates for “RECU” events (“Rec yard unavailable”)

3 on the dates of December 31 and March 2. Id. (Ex. AA) at 241. A third report

4 from the same time period shows “RECR” events (“Rec yard refused”) 11 times

5 during the relevant time period, with timestamps varying from 8:05 p.m. to 2:45

6 a.m.11 Id. (Ex. AB) at 243. In his declaration, Plaintiff claims that he never refused

7 recreation yard time and even though he saw these records, he maintains that he

8 was never asked whether he wanted to go so deputies may have recorded these

9 entries without asking him because he was sleeping at that time. ECF No. 147

10 (Goolsby Decl.) at 52, ¶ 16.

11 As to the issue of how many hours Plaintiff actually received, based on this

record, the Court finds that there is a genuine dispute of material fact as to whether

Plaintiff received a constitutionally acceptable amount. Under Plaintiff’s version of

events, which the Court must consider viewing the evidence in the light most

favorable to him as the nonmoving party, Plaintiff never received any actual yard

time between February 7 and May 15—a period of 97 days. Not receiving any

outdoor exercise for such a duration could constitute a constitutional violation. See,

e.g., Lopez, 203 F.3d at 1133; Allen, 48 F.3d at 1088; Norwood, 583 F. Supp. 2d at

1204.

The records submitted by Plaintiff do show that he “refused” yard time 11

times during the relevant time period. All of the dates with a “refused” entry fall

within the time Plaintiff was at San Diego Central Jail and accepting that exercise

time at San Diego Central Jail is 1.5 hours, this would be 16.5 hours during the 99

25 11 The exact times show Plaintiff refusing recreation yard time on March 5 at

8:56 p.m., March 15 at 11:59 p.m., March 17 at 12:53 a.m., March 19 at 2:48 a.m.,

March 23 at 12:24 a.m., April 4 at 2:30 a.m., April 6 at 2:50 a.m., April 11 at 2:05

27 a.m., April 13 at 3:45 a.m., April 14 at 10:09 p.m., and April 15 at 8:05 p.m. ECF

No. 147 at 243.

1 days, 14 week period—effectively equating to 1.18 hours per week. This would cut

2 close to the 45 minutes for 6 weeks that the Ninth Circuit to meet the objective

3 element of deprivation of a basic human need in Allen v. Sakai. 48 F.3d at 1088.

4 Even more problematic here is that Plaintiff did not actually receive this exercise

5 time—the records show that he refused it and by his own testimony, he states that

6 he was never asked because he may have been sleeping during those times. ECF.

7 No. 147 (Goolsby Decl.) at 52, ¶ 17. Out of the 11 times, 8 occurred at around

8 midnight or later. See ECF No. 147 (Ex. AB) at 243. The Ninth Circuit has

9 previously held that “an inmate cannot be forced to sacrifice one constitutionally

10 protected right solely because another is respected.” See Allen v. City and County

11 of Honolulu, 39 F.3d 936, 940 (9th Cir. 1994) (finding it impermissible for

prisoners to choose between using the prison law library and exercising outdoors);

see also Hebbe v. Pliler, 627 F.3d 338, 343-44 (9th Cir. 2010) (finding same).

Similarly here, “[i]nmates are also entitled to confinement conditions which do not

result in chronic sleep deprivation.” Grizzle v. County of San Diego, 2018 WL

1603212, at *6 (S.D. Cal. April 3, 2018) (citing Keenan, 83 F.3d at 1090). Given

the records showing when Plaintiff supposedly refused exercise yard time and his

testimony that he was not actually asked whether he wanted to exercise during

those early hours of the morning, a genuine dispute of material fact here precludes

summary judgment as to the objective inquiry under the Eighth Amendment.

Defendant also argues that even if Plaintiff could show he was not provided

with constitutionally permissible outdoor exercise time, he still cannot show that he

suffered any medical effects. ECF No. 137-1 at 18-19. In his complaint, Plaintiff

alleged that he suffered from headaches, breathing difficulties, muscle and ligament

tightening, cardiovascular regression, weight gain, and depression as a result of the

denial of exercise. ECF No. 15 at ¶ 102. Defendant submits an expert report from

emergency medicine physician, Richard Stennes, M.D., who states that, based on

1 his review of Plaintiff’s records, Plaintiff failed to complain of any of his alleged

2 symptoms to any medical personnel. ECF No. 137-2 (Ex. N) at 108. He further

3 opined that a five month deprivation of sunlight exposure would not be long

4 enough to cause or exacerbate any of the issues Plaintiff alleged in his complaint.

5 Id.

6 Plaintiff objects to this evidence, noting that Dr. Stennes never examined him

7 and only reviewed his records. ECF No. 147 at 31; id. (Goolsby Decl.) at 52-53, ¶

8 21. Plaintiff further states in his declaration that he suffered from the same physical

9 ailments he alleged in his complaint and the reason he never sought medical

10 attention was because he knew that that medical could not give him more exercise

11 time. Id. at 52-53, ¶¶ 20, 22. Generally, while a party’s declaration may be self-

serving, courts may only reject such evidence if it “states conclusions and not facts

that would be admissible into evidence.” Nigro v. Sears, Roebuck & Co., 784 F.3d

495, 497-98 (9th Cir. 2015); see also S.E.C. v. Phan, 500 F.3d 895, 909 (9th

Cir.2007); F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th

Cir.1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any

supporting evidence, is insufficient to create a genuine issue of material fact.”).

Plaintiff’s declaration, standing alone, is conclusory as to the ailments he alleges he

suffered, essentially mirroring his allegations in his complaint. However, Plaintiff

does submit other declarations from other prisoners who provide some additional

corroborating evidence on this point. For example, Elliot Grizzle states that he

would sometimes talk to Plaintiff in the dayroom and that he “complained of severe

headaches, fatigue, depression, inability to concentrate and/or think clearly, as well

as high levels of stress as well as other physical and psychological issues.” ECF

No. 147 (Grizzle Decl.) at 58, ¶ 9. Another inmate, Samuel Hardcastle, stated that

“I seen [Plaintiff] physical and well being deteriorated rapidly. He complained of

headaches and abdominal pain. Looked extremely tired all the time and listless.

1 [Plaintiff] became sick as well. He looked very stressed and depressed.” ECF No.

2 147 (Hardcastle Decl.) at 61, ¶ 4. In addition, Plaintiff testified in his deposition

3 that he started having headaches in February 2017 and that he would have them

4 approximately 3 to 5 times a week. ECF No. 147 at 71:4-25. Plaintiff also testified

5 that he was suffering from asthma attacks 2 to 3 times a week, experiencing pain

6 and problems with joint movement in his elbows and wrists, cramping in his

7 muscles, particularly in the limbs, and suffering from tight hamstrings. Id. at 72:2-

8 9.

9 Again, with this record in mind, the Court finds that there is a dispute of

10 material fact as to whether Plaintiff suffered the harm he alleged. Thus, the Court

11 finds that, based on the conflicting evidence that has been presented by the parties,

a rational fact finding might find that Defendant has not provided Plaintiff with his

constitutionally permitted outdoor exercise time during the relevant time period,

14 meeting the objective prong of the Eighth Amendment violation requirements.12

ii. Subjective Prong

In its reply brief, Defendant focuses on the issue of whether there is a triable

issue of fact as to whether the prison acted with deliberate indifference, as required

under the Eighth Amendment. ECF No. 150 at 9-10. This inquiry is a two-part

20 12 Defendant also raises one additional issue in its brief—regarding whether

21 the yard space provided for prisoners during yard time is sufficiently “outdoor.”

ECF No. 137-1 at 22-23. Specifically, Defendant argues that because San Diego

Central Jail is in an urban setting, the recreation area provides for fresh air and

23 sunlight to come in, but is not the open roof space that a prison in a rural area might

provide. Id. Defendant additionally argues that the facilities met the requirements

under Title 24 standards. Id. at 9; see also ECF No. 137-2 at 157. Plaintiff refutes

25 this argument, pointing to Spain’s language that “[t]he cost or inconvenience of

providing adequate facilities is not a defense to the imposition of a cruel

punishment.” 600 F.2d at 200. Because the Court concludes that Plaintiff did not

27 receive the required amount of exercise time, regardless of the sufficiency of the

yard space itself, it will not reach this issue at the summary judgment stage.

1 inquiry, where the prisoner must first show that prison officials were aware of a

2 “substantial risk of serious harm” to his health or safety. Farmer v. Brennan, 511

3 U.S. 825, 837 (1994); see also Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.

4 2010). This could be met if it is shown that the risk posed by the deprivation was

5 obvious. Id. at 842. The second part of this inquiry is to show that prison officials

6 has no “reasonable” justification for that deprivation, in spite of the risk. Id. at 844.

7 This question presents a close call. There is some evidence that Plaintiff

8 attempted to make prison officials aware of his denial of outdoor exercise. Plaintiff

9 testified, and Defendant does not appear to dispute, that he filed a grievance on

10 March 6, 2017 regarding this issue, which he submitted to M.R. Meza. ECF No.

11 137-2 (Goolsby Dep.) at 39-12-41:1; see also ECF No. 147 (Goolsby Decl.) at 52, ¶

19. When he did not receive a response, Plaintiff testified that he wrote and sent a

letter to Sherriff William Gore in late March or early April complaining about the

denial of out of cell exercise. ECF No. 137-2 (Goolsby Dep.) at 42:7-25, 43:10-18;

ECF No. 147 (Goolsby Decl.) at 53, ¶ 24. A copy of the letter was not submitted to

the Court and Plaintiff testifies that he tried to get a copy of the letter but he was not

allowed while in county jail. ECF No. 137-2 (Goolsby Dep.) at 42:12-19. Plaintiff

also testified that he “continually asked several officers for out-of-cell exercise and

th[at] I’ve been denied all outside and out-of-cell exercise.” Id. at 42:25-43:2.

Based on this evidence, there is triable issue as to whether prison officials were

sufficiently aware of Plaintiff’s complaints regarding outdoor exercise.

Defendant’s argument in the reply brief seems to center more on the issue of

whether prison officials would have been aware of a “substantial risk or harm” to

Plaintiff’s health. Specifically, Defendant argues that Plaintiff himself admits in his

declaration and deposition that he never complained to any jail staff about the

health issues he alleges he suffered. ECF No. 150 at 14; see also ECF No. 147

(Goolsby Decl.) at 53, ¶ 22; ECF No. 137-2 (Goolsby Dep.) at 45:12-23.

1 Defendant also argues that that these alleged health injuries would not have been

2 patently obvious if he never reported them. ECF No. 150 at 10. However, the

3 inquiry here does not focus on whether a prison official would have “specific

4 knowledge that harsh treatment of a particular inmate, in particular circumstances,

5 would have a certain outcome.” Thomas, 611 F.3d at 1151. “Rather, we measure

6 what is ‘obvious’ in light of reason and the basic general knowledge that a prison

7 official may be presumed to have obtained regarding the type of deprivation

8 involved.” Id. In Thomas, the court noted the importance of exercise as a “basic

9 human need” and specifically pointed out that California regulations require three

10 hours of exercise a week. Id.; see also Allen, 48 F.3d at 1088 (noting that

11 defendants “had a goal of providing five hours exercise per week and that, despite

their awareness of this goal, they knowingly failed to provide” the sufficient hours);

Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (“If the prison allots a

standard number of hours per week for exercise, the prison officials are aware that

denial of this exercise for a substantial period creates an excessive risk to a

prisoner’s health.”). Thus, even without evidence of actual knowledge regarding

Plaintiff’s alleged health injuries, a jury could conclude that the length of duration

of the deprivation coupled with the prison’s own policies show sufficient

knowledge of the risk to health.

The second part of this subjective inquiry is whether the prison officials may

have a “reasonable” justification for the deprivation. Defendant does not advance

any argument in its briefing as to whether there is a reasonable ground for any

alleged deprivation of Plaintiff’s right to outdoor exercise. However, in an exhibit

submitted by Plaintiff, Administrative Sergeant at the San Diego Central Jail

responded to another prisoner’s similar complaint about having to choose between

yard time and sleep and stated, “due to everyday jail procedures and population

1 needs this is the time that is available for administrative segregation inmates to use

2 the recreation yard.” ECF No. 147 at 184-85.

3 Courts in the Ninth Circuit have found such nonspecific arguments

4 insufficient at the summary judgment stage. For example, the Court in Allen

5 rejected defendant’s similar argument, pointing to logistical problems, and found

6 that such vague explanation was not sufficient at the summary judgment stage to

7 justify the deprivation. 48 F.3d at 1088 (“A rational fact-finder after hearing the

8 evidence might determine that the defendants acted with at least deliberate

9 indifference to [Plaintiff’]s basic human needs . . . by placing inconsequential

10 logistical concerns that might be no more than matters of convenience above [his]

11 need for exercise.”); see also Grizzle, 2018 WL 1603212, at *6 (finding

constitutional violation possible where defendant did not provide a valid reason for

scheduling recreation time during the same time period where lights are dimmed to

permit sleeping).

Thus, the Court finds that a rational fact finder could find, based on the

evidentiary record before it, that Defendant had sufficient knowledge of the

deprivation and its health effects without a valid reason. The Court recommends

that summary judgment be denied on this issue.

D. Municipal Liability

Finally, the County moves for summary judgment on the issue of whether it

can be held liable for either the administrative segregation placement claim or

recreation yard claim under municipal liability.13 ECF No. 137-1 at 19-25.

A municipality may be liable under § 1983 for deprivations of constitutional

rights resulting from their formal policies or customs or as the result of a pervasive

13 Previously, on ruling on Defendants’ motion to dismiss, the Court

dismissed all the individual defendants and allowed the administrative segregation

27 placement claim and recreation claim to proceed against the County. See ECF No.

97 at 10.

1 practice. Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 690-

2 91 (1978); City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989). A

3 municipality cannot be held liable under § 1983 “solely because it employs a

4 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

5 a respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis original); see

6 also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (“We have

7 consistently refused to hold municipalities liable under a theory of respondeat

8 superior.”). Liability only attaches where the municipality itself causes the

9 constitutional violation through “execution of a government’s policy or custom,

10 whether made by its lawmakers or by those whose edicts or acts may fairly be said

11 to represent official policy.” Monell, 436 U.S. at 694; Long v. Cnty. of Los Angeles,

442 F.3d 1178, 1185 (9th Cir. 2006) (“[I]t is only when execution of a

government’s policy or custom inflicts the injury that the municipality as an entity

is responsible”). Plaintiff must establish that “the local government had a deliberate

policy, custom, or practice that was the moving force behind the constitutional

violation [they] suffered.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631,

636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)).

A “policy” is a “deliberate choice to follow a course of action . . . made from

among various alternatives by the official or officials responsible for establishing

final policy with respect to the subject matter in question.” Fogel v. Collins, 531

F.3d 824, 834 (9th Cir. 2008); Long, 442 F.3d at 1185.

There are three ways to show a policy or custom of a

23 municipality: (1) by showing ‘a longstanding practice or

custom which constitutes the standard operating

procedure of the local government entity’; (2) ‘by

25 showing that the decision-making official was, as a matter

of state law, a final policymaking authority whose edicts

or acts may fairly be said to represent official policy in

27 the area of decision’; or (3) ‘by showing that an official

1 with final policymaking authority either delegated that

2 authority to, or ratified the decision of, a subordinate.’”

3 Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008) (quoting

4 Ulrich v. Cty. & Cnty. of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)). A

5 policy “need only cause [the] constitutional violation; it need not be

6 unconstitutional per se.” Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994)

7 (citations omitted); see also Koistra v. Cnty. of San Diego, 310 F. Supp. 3d 1066,

8 1085 (S.D. Cal. 2018).

9 As a preliminary matter, Defendant correctly states that municipal liability

10 can only be found if there is constitutional violation in the first place. See, e.g.,

11 Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (“While liability of

12 municipalities doesn’t turn on the liability of individual officers, it is contingent on

13 a violation of constitutional rights.”). This threshold is met here on summary

14 judgment because, for the reasons stated above, the Court finds that there are

15 disputes of material fact that preclude granting summary judgment in favor of

16 Defendant on both the administrative segregation placement due process claim and

17 the Eighth Amendment outdoor exercise claim.

18 Defendant advances similar arguments as to why there cannot be municipal

19 liability against it for either of Plaintiff’s claims: 1) the individual deputies (i.e.,

20 Leon in the case of administrative segregation placement and various individual

21 deputies in charge of administering the exercise program) involved were not

22 policymakers, 2) no individual with policy making violated or ratified a

23 subordinate’s unconstitutional decision, including Sheriff Gore, who cannot be said

24 to have “ratified” decisions based solely on Plaintiff’s letters to him, and 3) the

25 county’s written policies with regards to exercise or placement cannot be said to be

26 unconstitutional because they comply with state guidelines and inspections, and to

1 the extent Plaintiff suffered an unconstitutional deprivation, he had not put forth

2 evidence to show that it was widespread . ECF No. 137-1 at 22-25.

3 The Court agrees with Defendant on the first issue—Plaintiff has not put

4 forth any evidence or argument that any of the individual deputies had any policy

5 making authority or that they were delegated that authority by a policy maker. The

6 Court also agrees on the second issue. Plaintiff’s evidence of his testimony stating

7 that he sent Sheriff Gore letters complaining about his placement and lack of

8 outdoor exercise is not sufficient to establish that Sherriff Gore ratified either

9 decision.14 “A policymaker’s knowledge of an unconstitutional act does not, by

10 itself, constitute ratification. Instead, a plaintiff must prove that the policymaker

11 approved of the subordinate’s act.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir.

1999). Here, a letter mailed to Sheriff Gore, at best, could potentially show that he

received it and read it—but Plaintiff does not have any further evidence of any

further action.

Plaintiff’s main arguments as to why the county may be held accountable are

based on policy arguments, so the Court will address this for each claim in turn.

i. Exercise Claim

Plaintiff’s main argument as to why municipal liability should be found is

that Defendant has a policy of only allowing inmates in administrative segregation

to exercise during the middle of the night. ECF No. 147 at 37; see also ECF No.

147 (Ex. Y) at 236-37 (“Exercise Programs and Yard Schedule” stating that inmates

would have exercise between 1900 hours (7:00 p.m.) to 0500 hours (5:00 a.m.)).

25 14 Plaintiff argues in his opposition that Sheriff Gore also ratified the decision

by signing off on San Diego County Sheriff’s Department’s Jail Population

Management Unit Training Manual. ECF No. 147 at 39. This argument, however,

27 is more apropos to the policy issue versus the individual action of any individual

subordinate.

1 Plaintiff argues that this policy is the reason he was shown to have “refused” yard

2 time when he actually was likely asleep and was not asked. Id. at 38.

3 Defendant objects to Plaintiff’s inclusion of the policy as to exercise times,

4 arguing that it should not be considered because his complaint does not include any

5 allegations about being forced to exercise at night. ECF No. 150 at 17; ECF No.

6 150-2. However, as the Court discussed above, see infra at 20 n.10, this is

7 sufficiently encompassed in his claim of not having any outdoor exercise time

8 during the relevant time period. Defendant argues that its own policies dictate that

9 inmates like Plaintiff should get at least 3 hours of outdoor exercise per week,

10 which is sufficient to pass constitutional muster. However, a rational fact finder

11 could find that the policy of offering exercise time during the late evening and early

morning hours could have the practical effect of resulting in a lot of “REC YARD

REFUSED” times, as it did for Plaintiff, undermining Defendant’s policy of

providing 3 hours a week of outdoor exercise. The Court is, of course, not making

any ruling as to the actual constitutionality of this policy at this stage but on

summary judgment, cannot find that, as a matter of law, a jury could not find

municipal liability if it were to find a constitutional violation in the first place. This

does not end the inquiry on summary judgment however—the Court must also

consider whether the policy caused the injury as the moving force behind the

violation. Monell, 436 U.S. at 694. This requires a “direct causal link” between the

policy and injury. See Koistra v. Cty. of San Diego, 310 F. Supp. 3d 1066, 1086

(S.D. Cal. 2018). Here, the records submitted by Plaintiff during the relevant time

period show only that he was offered and refused exercise time during the hours as

encompassed in the exercise time policy, whereas Defendant states that Plaintiff

was offered more than the required outdoor exercise time but without specific

details on summary judgment as to what times of the day that time occurred. Based

on this record, a rational fact-finder could find that the timing of the exercise

1 offered caused the deprivation that Plaintiff alleges. Accordingly, the Court

2 recommends that Defendant’s request for summary judgment on municipal liability

3 as to the outdoor exercise claim be denied.

4 ii. Administrative Segregation Placement Claim

5 Plaintiff’s argument in his opposition regarding this claim appears to be

6 partly that some of Defendant’s policies were not adhered to (for example, the

7 written policy calls for a written notice J-72 form to be given to segregated inmates,

8 but Plaintiff claims he never received one), but also partly that the policy itself, as

9 written, does not require some of the constitutionally required elements, such as a

10 “hearing,” opportunity to be actually heard, or a reason for the placement. ECF No.

11 147 at 37-38.

As stated above, the Court found that there is a material dispute as to exactly

what factually happened that resulted in Plaintiff’s initial placement in

administrative segregation. Defendant does state though, through its declarant

Sergeant Froistad, that based on his review of the records, Plaintiff’s classification

into administrative segregation “complied with policies and procedures.” ECF No.

137-4 (Froistad Decl.) at ¶ 32. In its reply in response to Plaintiff’s factual

description of events as he believed they occurred, Defendant characterizes the

differences as disputes on “minutiae” of the process, but does not change its

position as to policy compliance and states that Plaintiff’s version of events would

not have complied with its policy. In addition, there is a direct causal link because

it is the exact placement policy and procedures that Plaintiff objects to.

Accordingly, the Court recommends that Defendant’s request for summary

judgment on municipal liability as to the administrative segregation due process

claim also be denied.

1 V. Conclusion

2 For the foregoing reasons, the Court, RECOMMENDS that Defendants’

3 motion for summary judgment be GRANTED IN PART AND DENIED IN

4 PART as follows:

5 (1) Summary Judgment on Plaintiff’s Due Process Claim related to his

6 placement in administrative segregation be DENIED;

7 (2) Summary Judgment on whether Plaintiff exhausted his outdoor

8 exercise claim while at George Bailey Detention Facility be

9 GRANTED;

10 (3) Summary Judgment on whether Plaintiff exhausted his outdoor

11 exercise claim while at San Diego Central Jail be DENIED;

(4) Summary Judgment on Plaintiff’s Eighth Amendment Claim related to

denial of outdoor exercise be DENIED; and

(5) Summary Judgment on municipal liability be DENIED.

This report and recommendation is submitted to the United States District

Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).

IT IS ORDERED that no later than March 3, 2020, any party to this action

may file written objections and serve a copy on all parties. The document should be

captioned “Objections to Report and Recommendation.”

IT IS FURTHER ORDERED that any reply to the objections must be filed

and served on all parties no later than March 10, 2020.

1 The parties are advised that failure to file objections within the specified time

2 may waive the right to raise those objections on appeal of the Court’s order.

Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991).

4 IT IS ORDERED.

5 Dated: February 18, 2020

Lin JZ Li o55z~

7 Hon. Nita L. Stormes

8 United States Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.