Hearns v. Terhune

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARENCE LEONARD HEARNS, JR., 

Plaintiff-Appellant,

v.

CAL TERHUNE; ROBERT POWELL, No. 02-56302

Correctional Officer; R. NELSON,

Sergeant, Correctional Officer;  D.C. No.

CV-99-01461-JM

ALAN KAHN; F. DYMOND,

Correctional Captain at Calipatria OPINION

State Prison; SYLVIA GARCIA, Chief

Deputy Warden; LARRY SMALL,

Warden,

Defendants-Appellees.



Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted

December 9, 2004—Pasadena, California

Filed June 30, 2005

Before: Procter Hug, Jr., Harry Pregerson, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

7745

7748 HEARNS v. TERHUNE

COUNSEL

Daniel L. Alexander, O’Melveny & Myers, Los Angeles, Cal-

ifornia, for the plaintiff-appellant.

Barbara C. Spiegel, Deputy Attorney General, State of Cali-

fornia, San Francisco, California, for the defendants-

appellees.

OPINION

PREGERSON, Circuit Judge:

Plaintiff-Appellant Clarence Leonard Hearns, Jr., is a Mus-

lim inmate at Calipatria State Prison. In June 1999, Hearns

filed a pro se complaint alleging violations of his civil rights

under 42 U.S.C. § 1983. Specifically, Hearns alleged that sev-

eral Calipatria State Prison officials violated his Eighth

Amendment right to be free from cruel and unusual punish-

ment when they failed to protect him from being attacked by

fellow Muslim inmates. Hearns also claimed that he was sub-

jected to inhumane conditions when he was later placed in

HEARNS v. TERHUNE 7749

protective confinement for nine months in Calipatria’s disci-

plinary segregation unit.

In February 2002, the district court sua sponte dismissed

Hearns’s original complaint for failing to state a claim, but

granted him leave to amend. After Hearns filed his first

amended complaint, the prison officials moved to dismiss that

complaint under Federal Civil Procedure Rule 12(b)(6). In

July 2002, the district court granted the motion to dismiss,

ruled that Hearns’s amended complaint failed to state a claim,

and dismissed the complaint and the § 1983 action with preju-

dice. Hearns now appeals. We have jurisdiction under 28

U.S.C. § 1291, and we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY1

In May 1997, an inmate at Calipatria State Prison sent a

memorandum to Defendant Chief Deputy Warden Sylvia Gar-

cia explaining that the “ruling” Muslim inmates were trying

to force other Muslim inmates to share their prayer oil. This

memorandum was later forwarded to all prison administrators

and to Defendant Alan Kahn, the prison’s Islamic Chaplain.

Shortly afterwards, prison officials and Chaplain Kahn

received another letter that detailed secret boxing matches and

beatings carried out by Muslim inmates in the prison chapels.

As a result, beginning in July 1997, no Muslim inmate was

allowed in the prison chapels unsupervised.

In August 1997, correctional officers discovered that Mus-

lim inmates in Facility B of the prison were planning to beat

a Muslim inmate in the Facility B chapel for questioning the

authority of the ruling Muslim inmate group. News of the

plan was reported to Defendant F. Dymond (a facility Cap-

tain) and relayed to Defendants Robert Powell (a correctional

1

The following facts are taken from Hearns’s pro se first amended com-

plaint and are assumed true for purposes of our review. See Jackson v.

Carey, 353 F.3d 750, 753 (9th Cir. 2003).

7750 HEARNS v. TERHUNE

officer) and Chaplain Kahn. After the inmates’ plan was dis-

covered, the intended victim was moved from Facility B to

Facility A.

Chaplain Kahn issued a memorandum in October 1997

addressing the continuing friction and violence between the

Muslim inmates. In the memo, Chaplain Kahn threatened to

suspend all Islamic services unless the safety of Muslim

inmates and visitors attending services could be assured. The

services, however, were never suspended.

In March 1998, another Muslim inmate housed in Facility

B was targeted for attack by inmates from the ruling Muslims

for disputing the ruling Muslims’ authority. This inmate was

relocated to Facility A. Nonetheless, he was stabbed approxi-

mately one year later in Facility A, allegedly at the request of

the ruling Muslims in Facility B.

In April 1998, members of the ruling Muslim group stole

prayer oil from Ware, a Muslim inmate. Hearns reported the

incident to Chaplain Kahn. Hearns suggested that Ware’s next

shipment of prayer oil be delivered to Hearns instead of to

Ware. Hearns would then secretly deliver the prayer oil to

Ware. Chaplain Kahn agreed. Concerned that the ruling Mus-

lim inmates would be upset, Hearns asked Chaplain Kahn not

to tell the other inmates of this prayer oil delivery arrange-

ment.

When the prayer oil arrived, Hearns delivered it to Ware.

On that same day, other Muslim inmates learned of the secret

delivery, either directly or indirectly, from Chaplain Kahn.

The inmates were angry with Hearns and confronted him in

a prison chapel. At that time, Hearns suffered no physical

abuse. But two days later, Hearns was attacked by Muslim

inmate Rushing in the chapel. Rushing was acting at the

direction of Tubbs, Hankins, and Irby, inmates belonging to

the ruling Muslim group. Following an investigation into the

HEARNS v. TERHUNE 7751

attack, Hearns was moved from Facility A to Facility B

because of concerns for his safety.

After Hearns was moved to Facility B, Chaplain Kahn gave

Hearns the authority to teach Arabic classes in the chapel to

fellow Muslim inmates. Chaplain Kahn also allegedly

reported to several Muslim inmates, including Lino and Nich-

ols, that Hearns believed there was a “messenger” after

Muhammad and that Hearns did not follow the sunnah.2

According to Hearns, holding such beliefs required him to be

killed under the teachings of Islam.

The violence between Muslim inmates at Calipatria contin-

ued to escalate. In June 1998, Hearns told Correctional Offi-

cer Powell of ongoing disputes between the ruling group and

Muslim inmates. These disputes centered around the ruling

group’s control over other Muslim inmates and which inmates

would teach classes and give sermons. Correctional Officer

Powell allegedly told Hearns that there was no need to worry

and that he would relay Hearns’s concerns to Chaplain Kahn

and Captain Dymond.

Later that afternoon, Correctional Officer Powell

announced to a group of Muslim inmates gathered in the

Facility B chapel that Chaplain Kahn would come by the next

day to help settle the disputes among the Muslim inmates.

After the announcement, Lino (an inmate who allegedly

learned from Chaplain Kahn that Hearns held impious beliefs)

ordered Hearns to be beaten and stabbed.

The next day, Hearns arrived at the Facility B chapel to

teach the morning Arabic class. Correctional Officer Powell

greeted him at the door, checked his name off the list of

attendees, and searched him for weapons. Soon after Hearns

entered the chapel, several inmates filed in after him. These

2

In Islam, the Arabic word sunnah has come to denote the way Muham-

mad lived his life and is the second source of Islamic jurisprudence.

7752 HEARNS v. TERHUNE

inmates turned off the chapel lights, attacked Hearns from

behind, and stabbed him numerous times. Even though Mus-

lim inmates were not allowed in the chapel unsupervised, no

correctional officers were present when Hearns was attacked.

After being stabbed and beaten, Hearns saw Lino letting the

attackers out of the chapel. Hearns grabbed Lino and held him

until Correctional Officer Powell and several other correc-

tional officers arrived. Hearns was then taken to the prison’s

central treatment center where he was treated for head lacera-

tions, body cuts, and bruises.

Following release from the central treatment center three

days later, Hearns was transferred from Facility B to Cali-

patria’s disciplinary segregation unit. This transfer was done

for his safety. Approximately two months later, Hearns

informed the prison officials of various “health hazards” in

the disciplinary segregation yard. Specifically, Hearns com-

plained that the disciplinary segregation yard had “no working

toilets, rusted and insect filled sinks, [and] stagnant pools of

water infested with dead insects.” Hearns also claimed that

cold water, which was supplied to the prison’s general popu-

lation yards, was not available in the disciplinary segregation

yard, despite the fact that the segregation yard’s temperature

regularly exceeded one hundred degrees. According to

Hearns, these hazardous conditions forced him to avoid the

prison yard “for fear of serious health concerns.”

Hearns attempted to have these conditions corrected

through the prison’s administrative grievance process but

failed. Once he exhausted the administrative grievance pro-

cess, Hearns filed a pro se complaint in district court in June

1999, for violations of his civil rights under 42 U.S.C. § 1983.

In addition to alleging that the prison officials had failed to

protect him from being stabbed in the chapel, Hearns claimed

that the officials subjected him to inhumane conditions while

he was confined in disciplinary segregation.

In February 2002, the district court sua sponte dismissed,

with leave to amend, Hearns’s original complaint for failing

HEARNS v. TERHUNE 7753

to state a claim. Approximately one month later, Hearns filed

an amended complaint. Shortly after that, several of the

Defendants filed a motion to dismiss Hearns’s amended com-

plaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

The district court dismissed Hearns’s amended complaint

and action with prejudice on July 1, 2002. The district court

ruled that Hearns’s “failure-to-protect” allegations (related to

the stabbing) did not satisfy the Eighth Amendment’s subjec-

tive component because he did not allege deliberate indiffer-

ence on the part of the prison officials. The court also ruled

that Hearns’s “conditions-of-confinement” allegations (related

to the disciplinary segregation yard) were not sufficiently seri-

ous to meet the Eighth Amendment’s objective component.

Hearns timely appealed the district court’s dismissal order

on July 25, 2002. A two-judge motions panel of our court

issued an order directing Defendants to show cause why sum-

mary reversal of the district court’s decision was inappropri-

ate based on Hearns raising a colorable claim. Defendants

filed a response to the order to show cause, and the panel’s

order was discharged on February 4, 2004. On April 15, 2004,

we appointed pro bono counsel to represent Hearns. Hearns

now appeals the district court’s dismissal of his § 1983 action.

II. DISCUSSION

A district court’s dismissal of a complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure is reviewed

de novo. See Zimmerman v. City of Oakland, 255 F.3d 734,

737 (9th Cir. 2001). We accept all allegations of material fact

as true and construe them in the light most favorable to the

prisoner. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). Because Hearns appeared pro se in the district court,

we liberally construe the pleadings. See Hughes v. Rowe, 449

U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106

7754 HEARNS v. TERHUNE

(1976); Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see

also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

A. Hearns’s “Failure-to-Protect” Claim

[1] “ ‘[P]rison officials have a duty . . . to protect prisoners

from violence at the hands of other prisoners.’ ” Farmer v.

Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones

v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). The

failure of prison officials to protect inmates from attacks by

other inmates may rise to the level of an Eighth Amendment

violation when: (1) the deprivation alleged is “objectively,

sufficiently serious” and (2) the prison officials had a “suffi-

ciently culpable state of mind,” acting with deliberate indif-

ference. Farmer, 511 U.S. at 834 (internal quotations

omitted). “[D]eliberate indifference entails something more

than mere negligence . . . [but] is satisfied by something less

than acts or omissions for the very purpose of causing harm

or with knowledge that harm will result.” Id. at 835.

The district court dismissed Hearns’s “failure-to-protect”

claim on the ground that Hearns failed to show that the prison

officials had a sufficiently culpable state of mind. According

to the district court, the prison officials could not have

inferred or otherwise known that the inmates who attacked

Hearns in the chapel posed a substantial risk of harm to

Hearns.

[2] We disagree. In his amended complaint, Hearns alleged

facts detailing religiously motivated violence. According to

Hearns, prison officials, including Chaplain Kahn, knew as

early as May 1997 that a group of ruling Muslim inmates had

planned and implemented attacks against other Muslim

inmates who questioned the authority of the ruling group,

failed to follow the ruling group’s orders, or refused to share

prayer oil. The prison officials also knew that the violence

and friction involved differences between the prison’s Muslim

HEARNS v. TERHUNE 7755

community over religious leadership and services at the

prison, yet did nothing to remedy this situation.3

[3] Hearns also claimed that the prison officials were aware

of, yet disregarded, the danger posed by the specific inmates

who had orchestrated previous attacks on other inmates who

did not support the ruling Muslim group. In fact, inmates from

the ruling Muslim group had previously committed a violent

attack against Hearns.4

[4] Next, Hearns alleged facts that, when accepted as true

and construed in the light most favorable to Hearns, raise an

inference that the prison officials created the risk and then

facilitated the attacks. For example, the amended complaint

alleged that Chaplain Kahn knew that the ruling Muslim

group was trying to steal prayer oil from other Muslim

inmates. In deciding to help Ware (a fellow Muslim inmate),

Hearns specifically asked Chaplain Kahn not to tell other

inmates that Ware’s prayer oil shipment had arrived or that

Hearns would deliver the prayer oil to Ware. Nevertheless,

Chaplain Kahn, either directly or indirectly, informed the rul-

ing Muslim group that Hearns would secretly deliver the

prayer oil to Ware. Later, Chaplain Kahn allegedly informed

Muslim inmates that Hearns believed there was a prophet

after Muhammad and that Hearns did not follow the teachings

of Muhammad. Passing such information to the violent ruling

Muslim group placed Hearns in danger and created a substan-

tial risk that Hearns would be injured or killed.

Finally, the allegations regarding the attack against Hearns

3

Although the prison officials threatened to suspend all Islamic services

at the prison if the safety of all Muslim inmates could not be assured,

allegedly they neither suspended the services nor took other measures to

protect the Muslim inmates who were not part of the ruling group of Mus-

lims.

4

The first attack occurred in the Facility A chapel two days after Hearns

accepted a fellow inmate’s shipment of prayer oil.

7756 HEARNS v. TERHUNE

at the Facility B chapel similarly raise an inference that the

prison officials facilitated the attacks against Hearns. Correc-

tional Officer Powell allegedly greeted Hearns at the chapel

door and searched him for weapons. But, according to Hearns,

Correctional Officer Powell was no longer present when

Hearns was attacked by inmates belonging to the ruling Mus-

lim group, even though Muslim inmates were not allowed in

the chapel unsupervised. Indeed, prison officials knew that

some of these same inmates had previously attacked Hearns

or planned and implemented attacks on other Muslim inmates.

[5] The series of planned attacks and religious-related vio-

lence at Calipatria State Prison was “longstanding, pervasive,

[and] well-documented.” Farmer, 511 U.S. at 842 (internal

quotations omitted). “[S]uch evidence could be sufficient to

permit a trier of fact to find that the [prison officials] had

actual knowledge of the risk.” Id. at 842-43.

[6] In sum, Hearns adequately informed the parties and the

district court of his Eighth Amendment “failure-to-protect”

claim and showed that he may have been entitled to relief. See

Fontana v. Haskin, 262 F.3d 871, 876-77 (9th Cir. 2001)

(“Specific legal theories need not be pleaded so long as suffi-

cient factual averments show that the claimant may be entitled

to some relief.”). The allegations in Hearns’s pro se amended

complaint were sufficient to raise an inference that the prison

officials acted with deliberate indifference, or knew that

Hearns faced a substantial risk of serious harm and “disre-

gard[ed] that risk by failing to take reasonable measures to

abate it.” Farmer, 511 U.S. at 847. Accordingly, the district

court erred in dismissing Hearns’s “failure-to-protect” claim.

B. Conditions of Confinement in Disciplinary

Segregation

As with his “failure-to-protect” claims, Hearns must make

two showings to challenge his conditions of confinement.

First, he must make an objective showing that the deprivation

HEARNS v. TERHUNE 7757

was “sufficiently serious” to form the basis for an Eighth

Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298

(1991). Second, Hearns must make a subjective showing that

the prison official acted “with a sufficiently culpable state of

mind.” Id.

[7] In light of the Eighth Amendment’s prohibition against

cruel and unusual punishment, prison officials have a duty to

ensure that inmates receive adequate food, clothing, shelter,

and medical care. See Farmer, 511 U.S. at 832; Keenan v.

Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Hoptowit v. Ray,

682 F.2d 1237, 1246 (9th Cir. 1982). Moreover, “[e]xercise

has been determined to be one of the basic human necessities

protected by the Eighth Amendment,” LeMaire v. Maass, 12

F.3d 1444, 1457 (9th Cir. 1993), and a long-term deprivation

of outdoor exercise for inmates is unconstitutional, see id. at

1458 (“[T]his circuit has determined the long-term denial of

outside exercise is unconstitutional.”) (emphasis in original).

See also Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (“There is substantial agreement among the cases in

this area that some form of regular outdoor exercise is

extremely important to the psychological and physical well

being of the inmates.”); Toussaint v. Yockey, 722 F.2d 1490,

1493 (9th Cir. 1984) (holding that the district court did not err

in concluding that the denial of outdoor exercise to inmates

assigned to administrative segregation for over one year

raised “substantial constitutional question”).

The district court dismissed Hearns’s amended complaint

for not meeting the objective component. According to the

district court, the deprivations Hearns alleged were not suffi-

ciently serious to violate the Eighth Amendment. Specifically,

the district court ruled:

Plaintiff has failed to allege any facts that would

suggest he was subjected to inhumane conditions of

confinement that imposed an excessive risk to his

health or safety. For example, plaintiff does not

7758 HEARNS v. TERHUNE

allege that he was deprived of water but only that ice

cold water was not available to him. Plaintiff has

failed to allege facts suggesting that the rusted sinks

and stagnant pools of water filled with insects posed

an excessive risk to his health and safety. Moreover,

plaintiff simply alleges that the toilets did not work,

which presumably means that they did not flush.

Although certainly unpleasant, plaintiff fails to

allege that the toilets were completely unusable for

a period of time so that, for example, he was left

with no alternative than to soil himself.

[8] The district court, however, did not take into account

the nine month period in which Hearns was subjected to these

conditions of confinement. “The circumstances, nature, and

duration of a deprivation of [ ] necessities must be considered

in determining whether a constitutional violation has

occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

2000). Hearns alleged serious health hazards in the disciplin-

ary segregation yard, including toilets that did not work; sinks

that were rusted and stagnant pools of water infested with

insects; and a lack of cold water even though the temperatures

in the prison yard exceeded one hundred degrees. Hearns, in

his complaint, asserted that these conditions kept him from

using the yard.

[9] In one hundred degree plus weather, lack of drinkable

water can be dangerous, thus precluding use of the yard. We

need not decide whether the other allegations regarding the

condition of the yard would independently, if proved, estab-

lish unconstitutional conditions, because with allegations that

there was a lack of drinkable water, the complaint is sufficient

to state a cause of action. The allegations in Hearns’s com-

plaint are not entirely clear with regard to whether there was

no water available, no cold water available, or no ice water

available. Nonetheless, Hearns complained of “health haz-

ards” and “serious health concerns,” requested “clean water

containers,” and alleged very high temperatures of “over 100

HEARNS v. TERHUNE 7759

degrees plus.” For purposes of a 12(b)(6) motion, these alle-

gations are adequate to state a claim of unconstitutional prison

conditions. Cf. Keenan, 83 F.3d at 1089-92 (recognizing that

deprivation of outdoor exercise, excessive noise, 24 hour

lighting, and inadequate ventilation, food, and water violate

the Eighth Amendment rights of inmates); see also Johnson,

217 F.3d at 732 (noting that “[m]ore modest deprivations can

also form the objective basis of a violation, but only if such

deprivations are lengthy or ongoing”). Accordingly, we con-

clude that the district court erred in dismissing Hearns’s

“conditions-of-confinement” claim.

III. CONCLUSION

“A complaint should not be dismissed [under 12(b)(6)]

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of the claim that would entitle the plain-

tiff to relief.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

2002); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Hearns’s pro se amended complaint may not have been art-

fully drawn, but it did provide the prison officials with fair

notice of his claims and the grounds upon which they rested.5

See Conley, 355 U.S. at 47.

[10] “The issue is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence

to support the claims. Indeed it may appear on the face of the

pleadings that a recovery is very remote and unlikely but that

is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

overruled on other grounds by Harlow v. Fitzgerald, 457 U.S.

800 (1982). At a minimum, Hearns alleged facts that: (1)

raised an inference that the prison officials knew of the risk

that certain inmates would attack Hearns, yet failed to take

reasonable measures to abate it; and (2) showed that he was

exposed to serious health hazards in the disciplinary segrega-

5

Hearns’s appointed counsel is directed to file a second amended com-

plaint which more clearly sets forth Hearns’s § 1983 claims.

7760 HEARNS v. TERHUNE

tion yard for a nine month period. Accordingly, we

REVERSE the district court’s order dismissing Hearns’s

§ 1983 action and REMAND for further proceedings.