Hebbe v. Pliler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL ERIC HEBBE, 

Plaintiff-Appellant,

v. No. 07-17265

CHERYL PLILER, Warden, CSP  D.C. No.

CV-00-00306-EFB

Sacramento; STEVEN VANCE,

Correctional Captain, CSP OPINION

Sacramento,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Edmund F. Brennan, Magistrate Judge, Presiding

Argued and Submitted

April 7, 2010—Pasadena, California

Filed July 29, 2010

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

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge Friedman

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

the Federal Circuit, sitting by designation.

10899

10902 HEBBE v. PLILER

COUNSEL

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

Circuit Clinic, Los Angeles, California, supervised by Charles

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

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

plaintiff-appellant.

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

(argued), Office of the California Attorney General, Sacra-

mento, California, for the defendants-appellees.

OPINION

REINHARDT, United States Circuit Judge:

Paul Hebbe, a prisoner in the California State Prison-

Sacramento C-Facility (“CSP”), appeals the district court’s

grant of prison officials Cheryl Pliler, Warden of the CSP, and

Steven Vance, Correctional Captain of the CSP (individually

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

42 U.S.C. § 1983 action under Federal Rule of Civil Proce-

dure 12(b)(6). Hebbe appeals the district court’s ruling with

respect to two distinct constitutional claims. First, Hebbe

claims that the prison officials violated his constitutional right

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

library without providing any alternative means of legal

research assistance during the limited time period in which he

was permitted to appeal his state court criminal conviction.

Second, Hebbe claims that subsequently the prison officials

HEBBE v. PLILER 10903

violated his Eighth Amendment right to be free from cruel

and unusual punishment because they forced him to choose

between two constitutional rights, his right to exercise and his

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

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

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

claims and remand the case for further proceedings.

I. BACKGROUND

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

two counts of burglary. He was sentenced to a term of eigh-

teen years and four months. He appealed his conviction to the

California Court of Appeal. The court appointed pro bono

counsel to represent him on appeal.

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

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

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

During lockdowns, CSP inmates are confined to their cells at

almost all times and are not allowed to exercise outdoors or

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

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

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

court accepted the brief, and advised Hebbe of his right to

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

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

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

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

therefore unable to research and file a supplemental appellate

brief by the December 18, 1998 deadline.

The CSP alleges that it provides inmates with emergency

1

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

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

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

undertake an independent review of the record for valid claims.

10904 HEBBE v. PLILER

library services during a lockdown through a paging system,

although this system offers extremely limited access to legal

materials.2 According to the prison officials, Hebbe was

allowed access to this paging system while he was on lock-

down; according to Hebbe, however, the prison officials never

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

to use the program to access legal reference materials. Hebbe

alleges that he did not learn of the existence of the paging sys-

tem until January of 1999. Consequently, he asserts, he did

not file a supplemental brief before the California Court of

Appeal’s December 18, 1998, filing deadline. For the pur-

poses of a motion to dismiss, we construe the pleading in the

light most favorable to the party opposing the motion, and

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

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

therefore take the factual allegations in Hebbe’s complaint as

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

1121 (9th Cir. 2002)

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

removed from lockdown status and he was once again

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

there was another disturbance and the prison officials put

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

2

Using the paging system, inmates with legal deadlines may forward

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

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

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

a time, and these items may not be more than thirty pages each. If a docu-

ment is larger than thirty pages then the prison will only deliver the docu-

ment in thirty page increments. Further, the library staff will send only

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

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

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

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

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

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

that if found will result in the library staff ignoring the request are mis-

spellings in case names and lack of all parallel citation.

HEBBE v. PLILER 10905

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

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

asserting that the lockdown had made it impossible for him to

research and draft an appellate brief. The California Court of

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

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

the “continuance request” as a petition for rehearing and

denied it on May 5, 1999.

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

of a little more than 15 months, Hebbe spent approximately

seven months in lockdown, without access to the law library

and without an opportunity to exercise outdoors.3 For the

period of time totaling eight months in which Hebbe was not

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

days per week, during which he could either exercise outdoors

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

Hebbe’s only opportunity to do either.

On February 14, 2000, Hebbe filed a complaint in the dis-

trict court under 42 U.S.C. § 1983 alleging that the prison

officials had violated his constitutional rights. Only two of the

claims listed in that complaint are relevant for purposes of this

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

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

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

officials violated his Eighth Amendment rights by forcing him

to choose between outdoor exercise and use of the law library

when he was not on lockdown.5

3

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

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

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

the prison lockdowns.

4

Specifically: March 8, 1999 - March 28, 1999, April 18, 1999 - Sep-

tember 11, 1999, and November 10, 1999 - February 14, 2000.

5

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

claims.

10906 HEBBE v. PLILER

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

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

granted. On February 20, 2002, the magistrate judge recom-

mended dismissing Hebbe’s access-to-courts claim because

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

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

judge also recommended dismissing the claim that Hebbe was

forced to choose between library access and outdoor exercise

in contravention of the Eighth Amendment because Hebbe

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

fail[ed] to allege an inability to file or a rejection of a merito-

rious claim resulted from his having to divide his recreation

time between the yard and the law library.”

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

findings and recommendations of the magistrate judge and

adopted them in full. The district court granted the prison offi-

cials’ Motion to Dismiss Hebbe’s claims, with prejudice, dis-

missing both his claim that the prison officials impermissibly

restricted his court access during the lockdowns and his claim

that they unconstitutionally forced him to choose between

using the law library and exercising outdoors when the facil-

ity in which he was incarcerated was not on lockdown.6

Hebbe timely appeals the district court’s ruling on these two

distinct constitutional claims.

II. ANALYSIS

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

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

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

officials ask us to apply the standard for reviewing complaints

that the Supreme Court recently adopted in Iqbal v. Ashcroft,

6

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

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

of the Eighth Amendment. On September 27, 2007, a jury returned a ver-

dict in favor of the prison officials on this Eighth Amendment claim.

HEBBE v. PLILER 10907

namely, that a complaint may survive a motion to dismiss

only if, taking all well-pleaded factual allegations as true, it

contains enough facts to “state a claim to relief that is plausi-

ble on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). But because Hebbe is an inmate who proceeded

pro se, his complaint “must be held to less stringent standards

than formal pleadings drafted by lawyers,” as the Supreme

Court has reminded us since Twombly. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam). Because Iqbal

incorporated the Twombly pleading standard and Twombly did

not alter courts’ treatment of pro se filings, we continue to

construe pro se filings liberally. This is particularly important

where, as in the instant case, a petitioner is a pro se prisoner

litigant in a civil rights matter. See Bretz v. Kelman, 773 F.2d

1026, 1027 n.1 (9th Cir. 1985) (courts “have an obligation

where the petitioner is pro se, particularly in civil rights cases,

to construe the pleadings liberally and to afford the petitioner

the benefit of any doubt.”).

A. Hebbe’s court access claim survives the motion to

dismiss

Hebbe alleges that the prison officials violated his constitu-

tional right to court access, grounded in the First Amendment

right to petition and the Fourteenth Amendment right to due

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

the facility was on lockdown, and that the denial prevented

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

court conviction.

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

fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the preparation

and filing of meaningful legal papers by providing prisoners

with adequate law libraries or adequate assistance from per-

sons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828

(1977). Nineteen years later, in Lewis v. Casey, the Court reit-

10908 HEBBE v. PLILER

erated that penal institutions have a duty to afford prisoners

“a reasonably adequate opportunity to present claimed viola-

tions of fundamental constitutional rights to the courts.” 518

U.S. 343, 351 (1996) (citing Bounds, 430 U.S. at 825). How-

ever, the Lewis Court narrowed the scope of Bounds by hold-

ing that there is no “abstract, freestanding right to a law

library or legal assistance[. A]n inmate . . . must . . . demon-

strate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal

claim.” Id. at 351, 353 n.3.

[2] The Court explained that its “actual injury” require-

ment meant that the state was not required to provide library

access to “enable the prisoner to discover grievances” that

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

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

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

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

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

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

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

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

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

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

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

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

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

involves exactly the type of “actual injury” discussed in

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

discover grievances, rather he wished simply to appeal his

conviction, as was his fundamental right.

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

Wende brief and withdrew from his case on November 18,

1998, the California Court of Appeal correctly advised him of

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

unquestionably had a right to use the legal materials available

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

HEBBE v. PLILER 10909

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

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

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

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

demonstrate that there were no nonfrivolous claims that

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

v. Lewis, the filing of a Wende brief does not show disposi-

tively that an appeal is without merit. 223 F.3d 976 (9th Cir.

2000).

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

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

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

to file in support of that appeal. Under California law, individ-

uals who have pleaded guilty may nonetheless prevail upon

appeal in certain circumstances. See Cal. Penal Code

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

may appeal on the basis of “reasonable constitutional, juris-

dictional, or other grounds going to the legality of the pro-

ceedings.”). Hebbe thus had a right to use the prison law

library to research the constitutional, jurisdictional, or other

issues he might raise on appeal.

[5] Lewis may not have “guarantee[d] inmates the where-

withal to transform themselves into litigating engines capable

of filing everything from shareholder derivative actions to

slip-and-fall claims,” Lewis 518 U.S. at 355, but it did guaran-

tee individuals like Hebbe the right to use the prison law

library to “attack their sentences, directly.” Id. Hebbe was

impermissibly denied the opportunity to appeal his convic-

tion. This fulfills Lewis’s “actual injury” requirement. We

therefore reverse the district court’s ruling on Hebbe’s first

claim.

B. Hebbe’s Eighth Amendment claim survives the

motion to dismiss

Hebbe also alleges that the prison officials violated his

Eighth Amendment right to be free from cruel and unusual

10910 HEBBE v. PLILER

punishment during the period of time totaling eight months in

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

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

the prison officials impermissibly forced him to choose

between spending the eight hours per week on either using the

law library or exercising outdoors.

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

law library and exercising outdoors is impermissible because

“an inmate cannot be forced to sacrifice one constitutionally

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

City and County of Honolulu, 39 F.3d 936, 940 (9th Cir. 1994).7

As we discuss supra, the Supreme Court in Lewis emphasized

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

constitutional right to use of a law library was not “freestand-

ing,” but rather predicated upon the pursuit of an “arguably

actionable” legal claim. Id. at 351.

[7] Here, as Hebbe’s counsel underscored at oral argu-

ment, Hebbe wished to use the law library to research and file

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

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

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

7

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

only to individuals held in segregated housing units or otherwise severely

restrictive conditions of confinement. No published opinion of our court

advances such a proposition and it is of little merit for constitutional pur-

poses. What matters for cases such as the one before us is the amount of

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

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

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

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

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

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

library and no out-of-cell exercise at all. When he was released from lock-

down, Hebbe was allowed to leave his cell for only eight hours per week

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

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

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

HEBBE v. PLILER 10911

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

Amendment rights were violated when he was denied all out-

of-cell exercise during the seven month period that he was

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

claim, Hebbe had other nonfrivolous claims to research as

well. The two counts that are now on appeal before us are cer-

tainly not frivolous. Hebbe also wished to use the law library

to research the state habeas petition that he filed in Sacra-

mento Superior Court, a purpose that falls squarely under

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

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

provide inmates with the legal research facilities that they

“need in order to attack their sentences, directly or collateral-

ly”).

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

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

from November 1998 to February 2000—is apparent both

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

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

on May 20, 1999. Construing Hebbe’s pro se complaint liber-

ally, as we are required to do under Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam), we hold that Hebbe has suffi-

ciently alleged for the purposes of surviving a motion to dis-

miss that he wished to research a nonfrivolous legal claim and

thus had a cognizable constitutional right to use the law

library.

For the purposes of surviving a motion to dismiss, Hebbe

has therefore sufficiently alleged that prison officials violated

his Eighth Amendment rights because they forced him to

choose between his constitutional right to exercise and his

constitutional right of access to the courts for at least eight

months. Allen, 39 F.3d at 940. We therefore reverse the dis-

trict court’s ruling and remand for further proceedings.

REVERSED and REMANDED.