Kennedy v. Gonzalez et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Defendants' 22 MOTION to STRIKE and/or DISMISS be Denied, signed by Magistrate Judge Sheila K. Oberto on 12/7/2011, referred to Judge Ishii. Twenty-Day Objection Deadline. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS BLAKE KENNEDY,
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Plaintiff,
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CASE NO. 1:09-cv-01161-AWI-SKO PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’ MOTION
TO STRIKE AND/OR DISMISS BE DENIED
v.
F. GONZALEZ, et al.,
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(Doc. 22)
Defendants.
TWENTY-DAY OBJECTION DEADLINE
/
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Findings and Recommendations Addressing Defendants’ Motion to Strike and/or Dismiss
I.
Procedural History
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Plaintiff Thomas Blake Kennedy, a state prisoner proceeding pro se and in forma pauperis,
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filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 6, 2009. This action is proceeding
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on Plaintiff’s amended complaint against Defendants Cate and Gonzalez for violating Plaintiff’s
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rights under the Eighth Amendment of the United States Constitution. Plaintiff’s claim arises out
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of policies and practices that led to the long term denial of outdoor exercise while he was
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incarcerated at the California Correctional Institution (CCI), and Plaintiff is seeking damages,
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declaratory relief, and injunctive relief.
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On August 4, 2011, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
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Defendants filed a motion (1) to either dismiss or strike Plaintiff’s claim for injunctive relief and (2)
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to strike Plaintiff’s claim against them in their official capacities. After obtaining an extension of
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time, Plaintiff filed an opposition on October 12, 2011, and Defendants filed a reply on October 17,
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2011.
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II.
Discussion
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A.
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Although Defendants did not specifically notice their motion pursuant to Rule 12(f), which
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provides that the Court may strike “an insufficient defense, or any redundant, immaterial,
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impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f), they cited to Garlanger v. Verbeke, 223
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F.Supp.2d 596, 609 (D.N.J. 2002), in which the district court, in relevant part, ruled on a Rule 12(f)
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motion. To the extent that Defendants’ motion is treated as brought in part under Rule 12(f), the
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Court recommends that it be denied.
Motion to Strike
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The Ninth Circuit has held that Rule 12(f) does not authorize courts to strike claims for
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damages on the ground that they are precluded as a matter of law. Whittlestone, Inc. v. Handi-Craft
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Co., 618 F.3d 970, 974-75 (9th Cir. 2010). While Defendants are seeking to strike a claim for
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injunctive relief and official capacity claims rather than a damages claim, there is no distinction to
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be made. Because the claims at issue here are not insufficient defenses, redundant, immaterial,
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impertinent, or scandalous, they are not subject to a Rule 12(f) motion to strike. Whittlestone, 618
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F.3d at 973-75.
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B.
Motion to Dismiss
1.
Legal Standard
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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim,
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and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts
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alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th
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Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, the Court’s
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review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d
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992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase
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Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151
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F.3d 1194, 1197 n.1 (9th Cir. 1998).
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To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct.
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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 19642
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65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret
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Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual
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allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-
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Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v. City of Los
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Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
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2.
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Availability of Injunctive Relief
a.
Summary of Relevant Background Allegations
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Plaintiff is a validated member of the Northern Structure prison gang and he is serving an
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indeterminate Security Housing Unit (SHU) term. In California, there are only three SHUs, located
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at CCI, California State Prison-Corcoran, and Pelican Bay State Prison. Facility 4B is the SHU at
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CCI, and it houses 850 inmates in 8 separate housing units. Facility 4B has 16 individual exercise
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modules (IEMs) that hold one to two inmates, and each housing unit in Facility 4B has 2 group
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exercise yards. Pursuant to prison policy, validated gang members and associates housed on Facility
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4B cannot attend the group exercise yard, which limits their exercise opportunities to use of the
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IEMs.
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Plaintiff arrived at CCI on February 25, 2008, and between June 28, 2008, and March 13,
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2010, he received an average of only 1.3 hours of exercise per week, due to lack of sufficient
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exercise facilities to accommodate SHU inmates. Defendants Cate and Gonzalez are allegedly
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responsible for failing to rectify the situation despite their awareness of the problem.
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b.
Justiciability
1)
Parties’ Positions
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Defendants seek dismissal of Plaintiff’s claim for injunctive relief on the ground that it is
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moot following Plaintiff’s transfer to Pelican Bay, which occurred on or around May 16, 2010.
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(Doc. 10.) Plaintiff argues that his claim for injunctive relief is not moot given that he is serving an
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indeterminate SHU term, there are only three SHUs in the state, and there are no reasons or
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requirements keeping him at Pelican Bay. Defendants counter that while Plaintiff could be
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transferred back to CCI, there are SHUs are both Pelican Bay and Corcoran, and Plaintiff’s
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contention that he could be transferred back to CCI is overly speculative.
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2)
Standing and Mootness
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Under Article III of the Constitution , the jurisdiction of federal courts is limited to justiciable
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cases or controversies, and for a plaintiff’s claim to be justiciable, the plaintiff must have standing
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and the claim must not be moot.1 Jacobs v. Clark County School District, 526 F.3d 419, 425 (9th
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2008) (quotation marks and citations omitted); see also Summers v. Earth Island Inst., 555 U.S. 488,
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493, 129 S.Ct. 1142, 1149 (2009); Davis v. Fed. Election Com’n, 554 U.S. 724, 733-34, 128 S.Ct.
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2759, 2768-69 (2008); Oregon Advocacy Ctr., 322 F.3d 1101, 1108 (9th Cir. 2003); Bernhardt v.
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County of Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002). Constitutional standing requires, as
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an irreducible minimum, that there be (1) an injury in fact, (2) a causal relationship between the
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injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a
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favorable decision. Oregon Advocacy Ctr., 322 F.3d at 1108 (quotation marks and citations
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omitted); see also Summers, 555 U.S. at 493; Davis, 554 U.S. at 733; Jacobs, 526 F.3d at 425;
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Bernhardt, 279 F.3d at 868-69. While standing is determined based on the facts as they existed at
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the time the complaint was filed, an actual controversy must exist at all stages of review, and a claim
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becomes moot and non-justiciable if the requisite personal interest captured by the standing doctrine
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ceases to exist at any point during the litigation. Jacobs, 526 F.3d at 425 (quotation marks and
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citations omitted); Oregon Advocacy Ctr., 322 F.3d at 1116 (quotation marks and citations omitted);
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see also Alvarez v. Smith, __ U.S. __, __, 130 S.Ct. 576, 580 (2009); Bernhardt, 279 F.3d at 872.
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3)
Capable-of-Repetition-Yet-Evading Review Exception
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A prisoner’s transfer away from the institution at which the challenged conduct is occurring
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will generally moot any claims for injunctive relief relating to the prison’s policies, unless the suit
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is certified as a class action. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (quotation marks
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omitted); see also Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Johnson v. Moore, 948 F.2d
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517, 519 (9th Cir. 1991). The claim is not moot, however, if there is a likelihood of recurrence.
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Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (quotation marks omitted). The capable-of-
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In addition to constitutional standing, there are prudential standing requirements. Oregon Advocacy Ctr.,
322 F.3d 1101, 1108-09 (9th Cir. 2003); Bernhardt v. County of Los Angeles, 279 F.3d 862, 869 (9th Cir. 2002).
Those are not at issue here, however.
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repetition-yet-evading-review exception to the mootness doctrine applies when (1) the duration of
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the challenged action is too short to be litigated prior to cessation, and (2) there is a reasonable
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expectation that the same party will be subjected to the same offending conduct. Demery, 378 F.3d
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at 1026 (quotation marks and citations omitted); see also Turner v. Rogers, __ U.S. __, __, 131 S.Ct.
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2507, 2514-15 (2011); Alvarez, __ U.S. at __, 130 S.Ct. at 581.
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Here, the violation at issue is allegedly the result of an insufficient number of exercise yards
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and IEM cages to accommodate SHU inmates housed at CCI, a situation which still exists at CCI
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as far as the Court is aware. Plaintiff is serving an indeterminate SHU term and in his amended
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complaint, he alleges that he could be confined at CCI’s Facility 4B SHU until 2057. While Plaintiff
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was transferred to another SHU after he filed his amended complaint, he alleges that there are only
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three SHUs in the state at which he can be housed.
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a)
Duration of Challenged Action
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This action has been pending for more than two years and it is still in the early stages of
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litigation. Given the length of time it takes for a civil rights case to wend through the court system
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and, critically, the fact that the duration of Plaintiff’s SHU confinement at CCI is entirely within the
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control of prison officials and may therefore be very brief or exceedingly lengthy or anywhere in
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between, the Court finds, at the pleading stage, that the first prong is satisfied. See Turner, __ U.S.
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at __, 131 S.Ct. at 2515 (imprisonment of up to 12 months too short to be fully litigated); Demery,
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378 F.3d at 1027 (pretrial detention temporary by nature).
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b)
Reasonable Expectation of Transfer Back to CCI
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Next, there must be a demonstrated probability or a reasonable expectation that Plaintiff will
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be transferred back to the SHU at CCI. Demery, 378 F.3d at 1027 (quotation marks and citations
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omitted). At this stage, there are no facts in the record upon which the Court may base a finding that
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Plaintiff is unlikely to be housed at CCI again. Plaintiff was housed there from 2008 to 2010, and
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there is no information in the record concerning why Plaintiff was transferred there in 2008 or why
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he was transferred to Pelican Bay in 2010. Plaintiff may never be sent back to CCI or he may be sent
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back tomorrow. Either is equally possible as far as the Court can discern and the factors affecting
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the decision to transfer Plaintiff back to CCI or not are, at this point, known only to prison officials
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and are not within Plaintiff’s control.
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Finally, it bears repeating that because Plaintiff is serving an indeterminate SHU term, there
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are only three SHUs in the state at which he may be housed. Given these circumstances and limited
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to a review of the pleadings, the Court finds that the second prong is satisfied. See Turner, __ U.S.
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at __, 131 S.Ct. at 2515 (where respondent had been subjected to several contempt proceedings and
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subsequently imprisoned for failing to pay child support and he was again subject to proceedings
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following his release from the imprisonment at issue, there was a reasonable likelihood he would
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again be subject to proceedings); Demery, 378 F.3d at 1027 (detention at pretrial facility 20 times
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in 6 years for 1 plaintiff and detention on more than 1 occasion for 11 other plaintiffs sufficient to
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meet second prong of test); Oregon Advocacy Ctr., 322 F.3d at 1117-18 (challenge to policy still in
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existence); compare Alvarez, __ U.S. at __, 130 S.Ct. at 581 (exception to mootness doctrine not
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warranted where nothing in record suggested the individual plaintiffs would likely be again subjected
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to forfeiture proceedings); Bernhardt, 279 F.3d at 871-72 (no indication in complaint that the
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plaintiff would be subjected to the same situation again); Dilley, 64 F.3d at 1369 (no reasonable
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expectation inmate would be transferred back to Calipatria where he had been a level IV inmate at
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Calipatria when he filed suit, but he was later transferred to a lower-security prison and reclassified
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as a level III inmate); Johnson, 948 F.2d at 519 (inmate’s claim against state prison warden moot
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where inmate had been transferred to a federal prison in a different state and was no longer subject
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to the state facility’s no smoking policy).
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While the Court expresses no opinion regarding whether Plaintiff will ultimately be entitled
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to an injunction, it cannot find at this early stage in the proceedings and under these circumstances
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that Plaintiff is so clearly foreclosed from entitlement to injunctive relief that his prayer for such
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relief must be dismissed from the amended complaint. The Court recommends that Defendants’
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motion to dismiss this claim for relief be denied.
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c.
Section 3626(a)(1)(A)
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In addition, as cited to by Defendants, any award of equitable relief in a case such as this is
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governed by the Prison Litigation Reform Act, which provides in relevant part, “Prospective relief
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in any civil action with respect to prison conditions shall extend no further than necessary to correct
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the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or
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approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no
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further than necessary to correct the violation of the Federal right, and is the least intrusive means
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necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
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Plaintiff is not currently poised to obtain an injunction but neither is his claim for such relief
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currently precluded by the statute. Plaintiff’s Eighth Amendment claim arises from Defendants’
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failure to ensure that CCI SHU inmates receive adequate outdoor exercise, a failure which results
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from (1) their inability to accommodate the number of inmates housed given the available exercise
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facilities, which include IEMs and group yards, and (2) their policies governing usage of the existing
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facilities by validated gang members and associates. Plaintiff seeks an injunction requiring
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Defendants to construct additional IEMs and/or to utilize the existing exercise yards to provide
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sufficient exercise.
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While Plaintiff includes an assertion that Defendants “need to appropriate the necessary funds
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and begin a viable plan to construct” the IEMs, Rule 8(a)(3) requires only that Plaintiff include a
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demand for the relief sought and “[p]leadings must be construed so as to do justice.” Fed. R. Civ.
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P. 8(e). (Comp., court record p. 16.) Plaintiff’s complaint must be construed more liberally because
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he is proceeding pro se, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), and Plaintiff’s prayer for
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relief is not so poor a match for his legal claim that the Court can find he is seeking relief which goes
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beyond that which is necessary to correct the violation at issue, § 3626(a)(1)(A). The construction
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of additional IEMs and/or different or additional usage of existing group yards might very well
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remedy a denial of exercise claim premised on the lack of sufficient IEMs and group yards to
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accommodate inmates. Therefore, section 3626(a)(1)(A) does not provide a basis for dismissal of
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the prayer for injunctive relief at this stage in the proceedings.
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3.
Official Capacity Claim
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Finally, the parties do not dispute that Plaintiff may seek prospective relief from state
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officials in their official capacity, although he is precluded from seeking damages against them in
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that capacity, and in light of the Court’s finding that Defendants are not entitled to dismissal of
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Plaintiff’s injunctive relief claim, Defendants’ motion to dismiss Plaintiff’s official capacity claims
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necessarily fails. Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010); Porter v. Jones,
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319 F.3d 483, 491 (9th Cir. 2003).
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III.
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Recommendation
For the reasons set forth herein, the Court RECOMMENDS that Defendants’ motion to strike
and/or dismiss, filed on August 4, 2011, be DENIED.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
December 7, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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