# Goolsby v. San Diego, County of

> District Court, S.D. California · February 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10080591

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10080591

## How later opinions describe it (automated extraction)

- finding it impermissible for 12 prisoners to choose between using the prison law library and exercising outdoors

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
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.

17
18
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
12
and his Eighth Amendment claims regarding denial of outdoors and out of cell
13
exercise against the County of San Diego. Id. at 10. All other individual
14
defendants were dismissed from the case. Id.
15
After the close of discovery, Defendant County of San Diego filed a motion
16
for summary judgment. ECF No. 137. The Court notified Plaintiff of the
17
requirements for opposing summary judgment pursuant to Klingele v. Eikenberry,
18
849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)
19
(en banc). ECF No. 138. Plaintiff filed an opposition, Defendant filed a reply, and
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Plaintiff filed a sur-reply. ECF Nos. 147, 150, 152.
21
II. FACTUAL BACKGROUND
22
The claims that remain in this litigation center around two events: (1)
23
Plaintiff’s placement into administrative segregation when he arrived at San Diego
24
Central Jail in December 2016, and (2) Plaintiff’s access to outdoor exercise at the
25
George Bailey Detention Facility and San Diego Central Jail, starting February 7,
26
2017.
27
//
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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
12
field interview was conducted to document any tattoos. ECF 137-2 (Froistad Decl.)
13
at 5, ¶ 26. Deputy Campos conducted the field interview. ECF 137-2 (Exh. I) at
14
70-85.
15
Deputy Leon then drafted a report recommending that the Plaintiff be housed
16
in administrative segregation. ECF 137-2 (Exh. G) at 63-64. Sergeant Rose
17
approved the suggestion the following day. Id. Pursuant to Deputy Leon’s
18
recommendation, Plaintiff was transferred into administrative segregation. ECF
19
137-5 (Leon Decl.) at 4, ¶ 14. On December 14, 2016, Plaintiff filed a grievance
20
form contesting his placement in administrative segregation. ECF 137- 2 (Exh. H)
21
at 66-68. The following day, December 15, 2016, Sergeant Lawson received and
22
responded to Plaintiff’s grievance. ECF 137–2 (Exh. J) at 87-88. Sergeant Lawson
23
informed Plaintiff he was not deprived of due process or privileges as an inmate in
24
the County of San Diego. Id.
25

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.
28
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.
12
Defendant instead presents evidence from Deputy Sheriff Mendoza that
13
Plaintiff was offered a total of 23 days of yard time between February 7 to May 17,
14
2017, for a total of 46.5 hours, averaging 3.875 hours per week. ECF No. 137-6
15
(Mendoza Decl.) at 2-3, ¶¶ 8-13. Of these offered days, Deputy Mendoza states
16
that Plaintiff started recreation time at least 12 times. Id. at 3, ¶¶ 10-11.
17
Plaintiff also alleges and states in his deposition and declaration that on
18
March 6, 2017, he filed a grievance regarding his lack of exercise time, which was
19
handed to and accepted by M.R. Meza. ECF No. 147 (Goolsby Decl.) at 52, ¶ 19;
20
ECF No. 137-2 (Goolsby Dep.) at 39:12-25, 40:21-41:1. Plaintiff states he did not
21
receive a response to this grievance. ECF No. 147 (Goolsby Decl.) at 52, ¶ 19;
22
ECF No. 137-2 (Goolsby Dep.) at 41:2-42:6. Plaintiff also states that later in
23
March or early April 2017, he wrote a letter to Sheriff Gore complaining about the
24
same issue and he also never received a response to this letter. ECF No. 147
25
(Goolsby Decl.) at 53, ¶ 24; ECF No. 137-2 (Goolsby Dep.) at 42:7-43:18.
26
//
27
//
28
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
12
essential element of that party’s case. Celotex, 477 U.S. at 322-323. The moving
13
party must identify the pleadings, depositions, affidavits or other evidence that the
14
party “believes demonstrates the absence of a genuine issue of material fact.” Id. at
15
323. If the moving party fails to bear the initial burden, summary judgment must
16
be denied and the court need not consider the nonmoving party’s evidence. Adickes
17
v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
18
If the moving party meets its burden, the non-moving party must “go beyond
19
the pleadings and by his own affidavits, or by ‘the depositions, answers to
20
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
21
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
22
56(e)). “Where the record taken as a whole could not lead a rational trier of fact to
23
find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita
24
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
25
First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 US. 253, 289 (1968)). In making
26
this determination, the court must view the underlying facts in the light most
27
favorable to the party opposing the motion. Id. The court should not engage in
28
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
12
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
13
§ 1. Prisoners who wish to invoke due process protections must establish the
14
existence of a protected interest and show it was denied without due process.
15
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The Constitution itself does not
16
confer on inmates “a liberty interest in avoiding transfer to more adverse conditions
17
of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Administrative
18
segregation in and of itself typically does not implicate a liberty interest. Serrano v.
19
Francis, 345 F.3d 1071, 1078 (9th Cir. 2003).
20
However, state regulations may create a liberty interest where the nature of the
21
confinement “imposes atypical and significant hardship on the inmate in relation to
22
the ordinary incidents of prison life.”2 Id. at 222. In such cases where a liberty
23
interest does exist, due process requires:
24
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.
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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.
3
Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). Due Process does not
4
require “detailed written notice of charges, representation by counsel or counsel-
5
substitute, an opportunity to present witnesses, or a written decision describing the
6
reasons for placing the prisoner in administrative segregation.” Id. at 1100–01.
7
Additionally, prison officials must have “some evidence” to support their decision
8
to place an inmate in segregation for administrative reasons. Bruce v. Ylst, 351
9
F.3d 1283, 1287 (9th Cir. 2003) (citing Superintendent v. Hill, 472 U.S. 445, 455
10
(1985)).
11
First, Defendant must demonstrate there is no genuine issue of material fact
12
regarding Plaintiff’s due process claims. See Anderson 477 U.S. at 247. Defendant
13
asserts no genuine issue of material fact exists because according to Plaintiff’s own
14
recitation of events, Plaintiff received the requisite due process protections. ECF
15
150 at 2-3. As set forth by Defendant, the facts that support granting summary
16
judgment are:
17
18 Plaintiff alleges that he spoke with two deputies including Deputy
Leon prior to his placement in administrative segregation [Plaintiff
19
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
21
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
23
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
25
“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
27
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
3
received the requisite due process protections prior [to] his placement in the
4
administrative segregation unit.” Id. at 3. Defendant also argues that the Plaintiff
5
had ample opportunities to present his views to jail staff and contest his housing
6
assignment, therefore “the classification evaluation, grievances, and grievance
7
reviews provided an informal non-adversarial process for Plaintiff to contest his ad-
8
seg placement.”3 ECF 137-1 at 13.
9
Plaintiff argues that Defendant did not provide the requisite due process for
10
multiple reasons. Specific to the informal nonadversary hearing requirement,
11
Plaintiff rejects the Defendant’s categorization of the classification evaluation as an
12
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
27
3 Defendant cites no case law to support this argument.
28
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
12
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
14
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.”
16
ECF No. 147 (Goolsby Decl.) at 48, ¶ 6.
17
The driving force of the requirements under Touissant and due process
18
generally is to ensure that a prisoner gets some notice of the reasons why he may be
19
placed in administrative segregation and to ensure he has some opportunity to be
20
heard in opposition. Plaintiff’s testimony as to the conversation—which happened
21
while he was changing clothes—raises some questions as to whether the
22
environment and context was sufficient for the inmate to receive the proper notice
23
and opportunity to present his or her view. Even the County Sheriff’s Department
24
Jail Population Management Unit Training Manual contemplates a more formal
25
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.
28
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).
12
The Supreme Court has “held that to properly exhaust administrative
13
remedies prisoners must ‘complete the administrative review process in accordance
14
with the applicable procedural rules,’ []—rules that are defined not by the PLRA,
15
but by the prison grievance process itself.” Id. at 218 (quoting Woodford v. Ngo,
16
548 U.S. 81, 88 (2006) (internal citation omitted)). The exhaustion requirement
17
offers the prison a chance to resolve the issue on its own and “promotes efficiency”
18
by allowing claims to be resolved more quickly than litigation. Woodford, 548 U.S.
19
at 90. Thus, a prison’s own grievance process, not the PLRA, determines how
20
detailed a grievance must be to satisfy the exhaustion requirement. Jones, 549 U.S.
21
at 218.
22
Grievance procedures are available if they are “‘capable of use’ to obtain
23
‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting
24
Booth v. Churner, 532 U.S. 731, 738 (2001)); see also Williams, 775 F.3d at 1191
25
(“To be available, a remedy must be available ‘as a practical matter’; it must be
26
‘capable of use; at hand.’”) (quoting Albino, 747 F.3d at 1171).
27
//
28
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
12
this “policy,” Plaintiff cites to several grievances he filed that he claims were never
13
responded to, a letter to Sheriff Gore complaining that his grievances were going
14
unanswered, and declarations from two other prisoners that also complained about
15
grievances going unanswered. Id. at 23.
16
However, even if some grievances were going unanswered, Plaintiff does not
17
cite to any case that would suggest that this excuses him from having to at least
18
attempt to file a grievance in the first place. To the contrary, it appears that
19
Plaintiff did exactly that with the other grievances he filed. Specifically, as
20
discussed below, Plaintiff did file a grievance regarding lack of recreation time
21
when he was placed in San Diego Central Jail after his time at George Bailey.
22
Failing to file grievances in the first place defeats one of the primary purposes of
23
the grievance process—to put the prison on notice of an issue. See, e.g. Griffin v.
24
Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“The primary purpose of a grievance
25
6 Plaintiff points to several grievances he filed in his opposition, but none
26
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).
28
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
12
was held at George Bailey Detention Facility and recommends that summary
13
judgment be granted in favor of Defendant on this issue.
14
ii. Recreation Yard Claims at San Diego Central Jail
15
Defendant also moves for summary judgment on whether Plaintiff properly
16
exhausted his administrative remedies as to recreation yard time at San Diego
17
Central Jail. ECF No. 137-1 at 15. Defendant does not appear to dispute that a
18
grievance was filed. See id. However, rather than attach a copy of the grievance,
19
Defendant cites to Plaintiff’s allegations in his Third Amended Complaint and his
20
deposition for a description of the grievance. According to Plaintiff’s complaint, he
21
submitted a grievance to M.R. Mesa on March 6, 2017 for denial of out-of-cell
22
exercise. ECF No. 15 at ¶ 103. Plaintiff stated the same in his deposition. ECF
23
No. 137-2 (Goolsby Dep.) at 40:21-43:1. Plaintiff states that he never received a
24
response to this initial grievance and so he never appealed it any further. ECF No.
25
15 at ¶ 103; ECF No. 137-2 (Goolsby Dep.) at 41:2-4. This version of the facts as
26
Defendant puts forth is not disputed by Plaintiff.
27
28
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
12
an appeal-response deadline has passed” but that “after the inmate has waited a
13
reasonable period of time and has received no response or notice of delay, the
14
failure by prison officials to abide by inmate-grievance regulations must excuse the
15
inmate’s failure to exhaust; otherwise, prison officials could indefinitely delay
16
inmates from pursuing legal remedies simply by ignoring all inmate appeals”);
17
Cotton v. Cate, No. C 13-3744 WHA (PR), 2015 WL 1246114, at *3 (N.D. Cal.
18
Mar. 17, 2015) (rejecting the argument that a prisoner had to appeal to second and
19
third levels after receiving no response at the first level on summary judgment
20
because the prison “does not cite any authority that a California inmate who has
21
received no response at the first level of review may nevertheless proceed to the
22
second and third levels of review, or any authority that the PLRA requires inmates
23
generally to proceed to higher levels of review when prison officials do not respond
24
at the lower levels”); Courson v. Cochran, No. 08-CV-0871 JAH(LSP), 2009 WL
25
10725678, at *5–6 (S.D. Cal. Feb. 19, 2009), report and recommendation adopted,
26
No. 08CV0871 JAH (LSP), 2009 WL 10725718 (S.D. Cal. June 24, 2009) (“Prison
27
authorities cannot have it both ways - they cannot obstruct an inmate’s pursuit of
28
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
12
respond to a grievance within the applicable time limits” and that “if an inmate
13
attempts to exhaust administrative remedies, but that effort is thwarted or ignored,
14
the exhaustion of “available” remedies has been satisfied”). Thus, against this legal
15
background, the Court cannot find that Defendant has met its burden to show the
16
absence of exhaustion if it cannot show that it responded to Plaintiff’s grievance in
17
a timely manner.
18
Defendant also argues that the grievance should have only covered the time
19
period through March 6, 2017 and nothing later—i.e. the time period from when
20
Plaintiff entered San Diego Central Jail to the date he filed the grievance. ECF No.
21
137-1 at 15. Defendant implores the Court to find that Plaintiff did not file a
22
grievance as to other time periods and therefore, failed to exhaust as to those time
23
periods. Id. Without submitting as evidence the actual grievance, the Court cannot
24
confirm whether the grievance itself mentions any dates. If not, the only reason a
25
date would be read into the grievance would be because it was filed on March 6,
26
2017. The only other evidence that is relevant to this issue is Plaintiff’s own
27
28
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
13
grievance procedures and responding to my grievances so I felt it was
14 pointless and I had no available -- administrative remedies available.

15
ECF No. 137-2 (Goolsby Dep.) at 43:19-44:14.
16
The issue of what time period should be covered by Plaintiff’s grievance
17
presents a closer question. On one hand, Defendant does not cite to any authority
18
as to why the grievance must end on the date of its filing if it complains about an
19
ongoing issue. The grievance should be sufficient to place the prison on notice of
20
the problem generally and give officials an opportunity to investigate and remedy
21
the situation, fulfilling the purpose of the exhaustion requirement. Defendants do
22
not provide any argument as to why changing housing modules would have
23
necessarily changed the out of cell exercise regimen that Plaintiff would have faced.
24
On the other hand, Plaintiff’s own testimony suggests that he realized he could have
25
filed more grievances but the reason he did not was that he believed they would
26
have gone unanswered. Plaintiff also did testify that the grievance was to “specific
27
dates” but that he needed to check those dates. Later, he says that it was from the
28
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
12
Court finds that Defendant has not shown on summary judgment that Plaintiff
13
failed to exhaust his administrative remedies as to his recreation yard claims while
14
he was held at San Diego Central Jail from February 27, 2017 to April 20, 2017
15
(see ECF No. 137-6 (Mendoza Decl.) at 2, ¶ 6) and recommends that summary
16
judgment be denied on this issue.
17
C. Denial of Outdoor Exercise
18
The County also moves for summary judgment on the issue of whether
19
Plaintiff has sufficiently stated a claim under the Eighth Amendment’s prohibition
20
against cruel and unusual punishment based on his lack of access to the outdoor
21
recreation yard. ECF No. 137-1 at 15-19.
22
An Eighth Amendment claim that a prison official has deprived inmates of
23
humane conditions of confinement must meet two requirements, one objective and
24
one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under the objective
25
requirement, the prison official’s acts or omissions must deprive an inmate of “the
26
minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman,
27
28
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
12
segregation permanently and for four years); Toussaint v. Yockey, 722 F.2d 1490,
13
1492-93 (9th Cir. 1984) (prisoners were in cells for up to 23.5 hours per day and
14
most were in segregation for over a year); Thomas v. Ponder, 611 F.3d 1144, 1151
15
(9th Cir.2010) (prisoner was denied outdoor exercise for almost 14 months)..
16
However, cases within this district have found violations based on shorter periods
17
of deprivations as well. Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000)
18
(violation found where prisoners were denied all exercise for 6.5 weeks); Allen v.
19
Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994) (violation found where prisoners were
20
only provided 45 minutes of exercise a week for 6 weeks); Norwood v. Woodford,
21
583 F. Supp. 2d 1200, 1204 (S.D. Cal. 2008) (violation found on allegations of 39
22
day deprivation of exercise); but see Hayward v. Procunier, 629 F.2d 599, 603 (9th
23
Cir. 1980) (emergency lockdown necessitating 28 day exercise deprivation was
24
constitutional).
25
i. Objective Prong
26
Defendant argues that Plaintiff cannot show that he was deprived of “the
27
minimal civilized measure of life’s necessities” because he was provided sufficient
28
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
12
such as short staffing, critical incidents, inclement weather, or needing to use the
13
space as a holding cell. Id. at ¶¶ 8, 10. For the remaining 12 days, though Plaintiff
14
was scheduled to have exercise time, there was no entry in the system. Id. at ¶ 9.
15
Mendoza explains that this does not mean he did not have exercise time and it may
16
just not have been recorded in the system. Id. In addition to the scheduled days,
17
Mendoza testifies that Plaintiff received 11 additional unscheduled days as make up
18
for when the recreation yard was unavailable—out of these, Plaintiff started yard
19
time 7 times and refused 4 times. Id. at ¶ 11. Thus, Mendoza concludes that
20
Plaintiff was offered recreation time 23 days during the time period for a total of
21
7 The Court will accept this 3.875 hours number but notes that Defendant
22
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
26
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.
28
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
12
evidence, he submits some printouts from the San Diego Sheriffs Department’s
13
Inmate History Summary Report. One report, with a begin date of December 12,
14
2016 to May 17, 2017, shows that Plaintiff’s inmate status went to “RECS” only 4
15
times—on December 15 and 16 and January 12 and 27—none of which fall in the
16

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
22
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
24
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
26
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.
28
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
12
record, the Court finds that there is a genuine dispute of material fact as to whether
13
Plaintiff received a constitutionally acceptable amount. Under Plaintiff’s version of
14
events, which the Court must consider viewing the evidence in the light most
15
favorable to him as the nonmoving party, Plaintiff never received any actual yard
16
time between February 7 and May 15—a period of 97 days. Not receiving any
17
outdoor exercise for such a duration could constitute a constitutional violation. See,
18
e.g., Lopez, 203 F.3d at 1133; Allen, 48 F.3d at 1088; Norwood, 583 F. Supp. 2d at
19
1204.
20
The records submitted by Plaintiff do show that he “refused” yard time 11
21
times during the relevant time period. All of the dates with a “refused” entry fall
22
within the time Plaintiff was at San Diego Central Jail and accepting that exercise
23
time at San Diego Central Jail is 1.5 hours, this would be 16.5 hours during the 99
24

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.,
26
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.
28
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
12
prisoners to choose between using the prison law library and exercising outdoors);
13
see also Hebbe v. Pliler, 627 F.3d 338, 343-44 (9th Cir. 2010) (finding same).
14
Similarly here, “[i]nmates are also entitled to confinement conditions which do not
15
result in chronic sleep deprivation.” Grizzle v. County of San Diego, 2018 WL
16
1603212, at *6 (S.D. Cal. April 3, 2018) (citing Keenan, 83 F.3d at 1090). Given
17
the records showing when Plaintiff supposedly refused exercise yard time and his
18
testimony that he was not actually asked whether he wanted to exercise during
19
those early hours of the morning, a genuine dispute of material fact here precludes
20
summary judgment as to the objective inquiry under the Eighth Amendment.
21
Defendant also argues that even if Plaintiff could show he was not provided
22
with constitutionally permissible outdoor exercise time, he still cannot show that he
23
suffered any medical effects. ECF No. 137-1 at 18-19. In his complaint, Plaintiff
24
alleged that he suffered from headaches, breathing difficulties, muscle and ligament
25
tightening, cardiovascular regression, weight gain, and depression as a result of the
26
denial of exercise. ECF No. 15 at ¶ 102. Defendant submits an expert report from
27
emergency medicine physician, Richard Stennes, M.D., who states that, based on
28
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-
12
serving, courts may only reject such evidence if it “states conclusions and not facts
13
that would be admissible into evidence.” Nigro v. Sears, Roebuck & Co., 784 F.3d
14
495, 497-98 (9th Cir. 2015); see also S.E.C. v. Phan, 500 F.3d 895, 909 (9th
15
Cir.2007); F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th
16
Cir.1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any
17
supporting evidence, is insufficient to create a genuine issue of material fact.”).
18
Plaintiff’s declaration, standing alone, is conclusory as to the ailments he alleges he
19
suffered, essentially mirroring his allegations in his complaint. However, Plaintiff
20
does submit other declarations from other prisoners who provide some additional
21
corroborating evidence on this point. For example, Elliot Grizzle states that he
22
would sometimes talk to Plaintiff in the dayroom and that he “complained of severe
23
headaches, fatigue, depression, inability to concentrate and/or think clearly, as well
24
as high levels of stress as well as other physical and psychological issues.” ECF
25
No. 147 (Grizzle Decl.) at 58, ¶ 9. Another inmate, Samuel Hardcastle, stated that
26
“I seen [Plaintiff] physical and well being deteriorated rapidly. He complained of
27
headaches and abdominal pain. Looked extremely tired all the time and listless.
28
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,
12
a rational fact finding might find that Defendant has not provided Plaintiff with his
13
constitutionally permitted outdoor exercise time during the relevant time period,
14 meeting the objective prong of the Eighth Amendment violation requirements.12
15
ii. Subjective Prong
16
In its reply brief, Defendant focuses on the issue of whether there is a triable
17
issue of fact as to whether the prison acted with deliberate indifference, as required
18
under the Eighth Amendment. ECF No. 150 at 9-10. This inquiry is a two-part
19

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
22
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
24
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
26
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.
28
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, ¶
12
19. When he did not receive a response, Plaintiff testified that he wrote and sent a
13
letter to Sherriff William Gore in late March or early April complaining about the
14
denial of out of cell exercise. ECF No. 137-2 (Goolsby Dep.) at 42:7-25, 43:10-18;
15
ECF No. 147 (Goolsby Decl.) at 53, ¶ 24. A copy of the letter was not submitted to
16
the Court and Plaintiff testifies that he tried to get a copy of the letter but he was not
17
allowed while in county jail. ECF No. 137-2 (Goolsby Dep.) at 42:12-19. Plaintiff
18
also testified that he “continually asked several officers for out-of-cell exercise and
19
th[at] I’ve been denied all outside and out-of-cell exercise.” Id. at 42:25-43:2.
20
Based on this evidence, there is triable issue as to whether prison officials were
21
sufficiently aware of Plaintiff’s complaints regarding outdoor exercise.
22
Defendant’s argument in the reply brief seems to center more on the issue of
23
whether prison officials would have been aware of a “substantial risk or harm” to
24
Plaintiff’s health. Specifically, Defendant argues that Plaintiff himself admits in his
25
declaration and deposition that he never complained to any jail staff about the
26
health issues he alleges he suffered. ECF No. 150 at 14; see also ECF No. 147
27
(Goolsby Decl.) at 53, ¶ 22; ECF No. 137-2 (Goolsby Dep.) at 45:12-23.
28
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
12
their awareness of this goal, they knowingly failed to provide” the sufficient hours);
13
Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (“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.”). Thus, even without evidence of actual knowledge regarding
17
Plaintiff’s alleged health injuries, a jury could conclude that the length of duration
18
of the deprivation coupled with the prison’s own policies show sufficient
19
knowledge of the risk to health.
20
The second part of this subjective inquiry is whether the prison officials may
21
have a “reasonable” justification for the deprivation. Defendant does not advance
22
any argument in its briefing as to whether there is a reasonable ground for any
23
alleged deprivation of Plaintiff’s right to outdoor exercise. However, in an exhibit
24
submitted by Plaintiff, Administrative Sergeant at the San Diego Central Jail
25
responded to another prisoner’s similar complaint about having to choose between
26
yard time and sleep and stated, “due to everyday jail procedures and population
27
28
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
12
constitutional violation possible where defendant did not provide a valid reason for
13
scheduling recreation time during the same time period where lights are dimmed to
14
permit sleeping).
15
Thus, the Court finds that a rational fact finder could find, based on the
16
evidentiary record before it, that Defendant had sufficient knowledge of the
17
deprivation and its health effects without a valid reason. The Court recommends
18
that summary judgment be denied on this issue.
19
D. Municipal Liability
20
Finally, the County moves for summary judgment on the issue of whether it
21
can be held liable for either the administrative segregation placement claim or
22
recreation yard claim under municipal liability.13 ECF No. 137-1 at 19-25.
23
A municipality may be liable under § 1983 for deprivations of constitutional
24
rights resulting from their formal policies or customs or as the result of a pervasive
25
13 Previously, on ruling on Defendants’ motion to dismiss, the Court
26
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.
28
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,
12
442 F.3d 1178, 1185 (9th Cir. 2006) (“[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”). Plaintiff must establish that “the local government had a deliberate
15
policy, custom, or practice that was the moving force behind the constitutional
16
violation [they] suffered.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631,
17
636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)).
18
A “policy” is a “deliberate choice to follow a course of action . . . made from
19
among various alternatives by the official or officials responsible for establishing
20
final policy with respect to the subject matter in question.” Fogel v. Collins, 531
21
F.3d 824, 834 (9th Cir. 2008); Long, 442 F.3d at 1185.
22
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
24
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
26
or acts may fairly be said to represent official policy in
27 the area of decision’; or (3) ‘by showing that an official
28
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
27
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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.
12
1999). Here, a letter mailed to Sheriff Gore, at best, could potentially show that he
13
received it and read it—but Plaintiff does not have any further evidence of any
14
further action.
15
Plaintiff’s main arguments as to why the county may be held accountable are
16
based on policy arguments, so the Court will address this for each claim in turn.
17
i. Exercise Claim
18
Plaintiff’s main argument as to why municipal liability should be found is
19
that Defendant has a policy of only allowing inmates in administrative segregation
20
to exercise during the middle of the night. ECF No. 147 at 37; see also ECF No.
21
147 (Ex. Y) at 236-37 (“Exercise Programs and Yard Schedule” stating that inmates
22
would have exercise between 1900 hours (7:00 p.m.) to 0500 hours (5:00 a.m.)).
23
24

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
26
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.
28
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
12
morning hours could have the practical effect of resulting in a lot of “REC YARD
13
REFUSED” times, as it did for Plaintiff, undermining Defendant’s policy of
14
providing 3 hours a week of outdoor exercise. The Court is, of course, not making
15
any ruling as to the actual constitutionality of this policy at this stage but on
16
summary judgment, cannot find that, as a matter of law, a jury could not find
17
municipal liability if it were to find a constitutional violation in the first place. This
18
does not end the inquiry on summary judgment however—the Court must also
19
consider whether the policy caused the injury as the moving force behind the
20
violation. Monell, 436 U.S. at 694. This requires a “direct causal link” between the
21
policy and injury. See Koistra v. Cty. of San Diego, 310 F. Supp. 3d 1066, 1086
22
(S.D. Cal. 2018). Here, the records submitted by Plaintiff during the relevant time
23
period show only that he was offered and refused exercise time during the hours as
24
encompassed in the exercise time policy, whereas Defendant states that Plaintiff
25
was offered more than the required outdoor exercise time but without specific
26
details on summary judgment as to what times of the day that time occurred. Based
27
on this record, a rational fact-finder could find that the timing of the exercise
28
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.
12
As stated above, the Court found that there is a material dispute as to exactly
13
what factually happened that resulted in Plaintiff’s initial placement in
14
administrative segregation. Defendant does state though, through its declarant
15
Sergeant Froistad, that based on his review of the records, Plaintiff’s classification
16
into administrative segregation “complied with policies and procedures.” ECF No.
17
137-4 (Froistad Decl.) at ¶ 32. In its reply in response to Plaintiff’s factual
18
description of events as he believed they occurred, Defendant characterizes the
19
differences as disputes on “minutiae” of the process, but does not change its
20
position as to policy compliance and states that Plaintiff’s version of events would
21
not have complied with its policy. In addition, there is a direct causal link because
22
it is the exact placement policy and procedures that Plaintiff objects to.
23
Accordingly, the Court recommends that Defendant’s request for summary
24
judgment on municipal liability as to the administrative segregation due process
25
claim also be denied.
26
//
27
//
28
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;
12
(4) Summary Judgment on Plaintiff’s Eighth Amendment Claim related to
13
denial of outdoor exercise be DENIED; and
14
(5) Summary Judgment on municipal liability be DENIED.
15
This report and recommendation is submitted to the United States District
16
Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).
17
IT IS ORDERED that no later than March 3, 2020, any party to this action
18
may file written objections and serve a copy on all parties. The document should be
19
captioned “Objections to Report and Recommendation.”
20
IT IS FURTHER ORDERED that any reply to the objections must be filed
21
and served on all parties no later than March 10, 2020.
22
//
23
//
24
//
25
//
26
//
27
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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
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080591. Public record. Not legal advice.