Rhinehart v. Cate et al

Filing 62

ORDER DENYING MOTIONS TO DISMISS AND FOR PRELIMINARY INJUNCTION; GRANTING MOTION FOR RULING; SCHEDULING ANSWER AND SUMMARY JUDGMENT MOTION. Signed by Judge Jeffrey S. White on 1/28/13. (jjoS, COURT STAFF) (Filed on 1/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JOSEPH RHINEHART,

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Plaintiff,
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v.
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MATTHEW CATE, Director of the
California Department of Corrections and )
Rehabilitation; A. HEDGPETH, Warden; )
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K. HARRINGTON, Warden,
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Defendants.
_________________________________ )

No. C 11-0812 JSW (PR)
ORDER DENYING MOTIONS TO
DISMISS AND FOR PRELIMINARY
INJUNCTION; GRANTING
MOTION FOR RULING;
SCHEDULING ANSWER AND
SUMMARY JUDGMENT
MOTION

(Docket No. 27, 35, 58)

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INTRODUCTION
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Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42
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U.S.C. § 1983 against the Warden Kern Valley State Prison (“KVSP”), where Plaintiff
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was formerly incarcerated, the Warden at Salinas Valley State Prison (“SVSP”), where
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plaintiff is currently incarcerated, and the Secretary of the California Department of
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Corrections and Rehabilitation (“CDCR”). The amended complaint was found to state
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two cognizable claims for relief, and Defendants were served. Defendants filed a
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motion to dismiss the complaint, which included an argument that Plaintiff did not
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exhaust his administrative remedies. Plaintiff filed an opposition, and Defendants filed
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a reply.
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Pursuant to Woods v. Carey, No. 09-15548, slip op. 7871, 7884-85 (9th Cir. July

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6, 2012) (citing Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003), Plaintiff

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was then given the notice and warning regarding motions to dismiss on exhaustion

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grounds, and he was allowed to supplement his opposition accordingly. He filed a

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supplemental opposition, and Defendants filed a supplemental reply brief.

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Plaintiff also filed motions for a preliminary injunction and for a ruling on the
pending motions.

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DISCUSSION
I.

Exhaustion

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Defendants argue that the case should be dismissed because Plaintiff did not

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properly exhaust his claims. The Prison Litigation Reform Act of 1995 amended 42

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U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison

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conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

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any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted." 42 U.S.C. § 1997e(a). Compliance with the exhaustion

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requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v.

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Churner, 532 U.S. 731, 739-40 & n.5 (2001).

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California provides its inmates and parolees the right to appeal administratively

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"any departmental decision, action, condition or policy perceived by those individuals

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as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to

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exhaust available administrative remedies within this system, a prisoner must proceed

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through several levels of appeal: (1) informal resolution, (2) formal written appeal on a

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CDC 602 inmate appeal form, (3) second level appeal to the institution head or

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designee, and (4) third level appeal to the Director of the California Department of

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Corrections. Id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997).

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This satisfies the administrative remedies exhaustion requirement under § 1997e(a). Id.

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at 1237-38.

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Nonexhaustion under § 1997e(a) should be raised in an “unenumerated Rule

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12(b) motion.” Wyatt v Terhune, 315 F.3d 1108, 1119 (9th Cir 2003) (noting that

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the burden of establishing nonexhaustion falls on the defendants). In deciding a motion

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to dismiss for failure to exhaust administrative remedies under § 1997e(a), the court

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may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If

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the court concludes that the prisoner has not exhausted California’s prison

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administrative process, the proper remedy is dismissal without prejudice. Id. at 1120.

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When liberally construed, Plaintiff’s allegations in his amended complaint were

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found to state two cognizable claims for relief. First, he claims a violation of the Equal

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Protection Clause based on his allegations that Defendant Harrington placed him on

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“lockdown” status at KVSP on May 26, 2009, and May 27, 2010, because he is black,

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and that Defendant Hedgpeth placed him on lockdown at SVSP on July 8, 2010,

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because he is black.1 His second claim is that his Eighth Amendment rights were

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violated when Harrington deprived him of any outdoor exercise at KVSP between May

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27 and July 8, 2010, and Hedgpeth deprived him of outdoor exercise at SVSP between

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July 8 and November 11, 2010. Both claims were found cognizable against and

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Defendant Cate based on the allegation that he is responsible for the policy of locking

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down and depriving inmates of outdoor exercise for long periods of time based on their

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race.

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The parties agree that Plaintiff filed grievances through the final level of

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administrative review complaining about the lockdown at KVSP on May 26, 2009, the

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lockdown at KVSP on May 27, 2010, and the lockdown at SVSP that Plaintiff

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experienced when he was transferred there on July 8, 2010. (See Lozano Decl. ¶¶ 8, 9,

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Defendants state that these were not “lockdowns” but rather “modified programs.”
(Wood Decl. ¶¶ 2-3, 6-10.) At this stage of the litigation, when Plaintiff’s allegations must be
accepted as true, the Court will use Plaintiff’s terminology.

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Exs. B-D.) In other words, the parties agree that Plaintiff exhausted his administrative

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remedies as to the three lockdowns that form the basis of his claims. Therefore, his

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claims based upon these lockdowns are exhausted.

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Defendants argue that Plaintiff did not exhaust administrative remedies as to

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lockdowns imposed on other dates. Plaintiff does not make claims based upon any

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lockdowns other than the three described above, however. Whether he exhausted

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administrative grievances as to other lockdowns is therefore irrelevant. Moreover, even

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if Plaintiff had included unexhausted claims about other lockdowns that were not

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exhausted, this would not warrant dismissal of the entire case. See Jones v. Bock, 549

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U.S. 199, 222-24 (2007) (rejecting "total exhaustion-dismissal" rule).

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Defendants make a new argument in their reply brief, that the exhausted

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administrative grievances complaining about lockdowns did not specifically mention

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the Eighth Amendment or the loss of outdoor exercise, and therefore the Eighth

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Amendment claims are not exhausted. To begin with, new arguments raised in a reply

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brief are not considered. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).

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Furthermore, the argument is without merit in any event. Compliance with the prison’s

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grievance procedural requirements is all that is required by the PLRA to "properly

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exhaust." Jones v. Bock, 549 U.S. 199, 217-18 (2007). In California, an inmate is

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simply required “‘to describe the problem and action requested'” in his administrative

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grievance. Morton, 599 F.3d at 946 (quoting 15 Cal. Code Regs. § 3084.2(a)).

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Plaintiff’s administrative appeals adequately “describe[d] the problem” of outdoor

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exercise. The parties agree that during a lockdown inmates are not allowed outdoor

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exercise. By complaining about lockdowns and ask that they cease, the administrative

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appeals provided sufficient notice to prison officials that Plaintiff was complaining

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about the conditions of the lockdowns, including not being allowed outdoors for

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exercise. Plaintiff need not specifically mention each and every specific aspect of the

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lock down in order to alert prison officials that he is complaining about the conditions

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of the lockdowns. Plaintiff also did not need to cite the Eighth Amendment in his

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grievances because proper exhaustion does not require an inmate to include legal

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terminology or legal theories. See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.

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2009).

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The administrative grievances filed by Plaintiff properly exhausted both of the

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claims raised here. Defendants’ motion to dismiss on exhaustion grounds must

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therefore be denied.

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III.

Defendant Cate

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Defendants argue that Plaintiff’s claims against Defendant Cate should be

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dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the

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amended complaint does not state a cognizable claim for relief against him. Cate was

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the Secretary of the CDCR at the time of the alleged lockdowns. A supervisor may be

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liable under Section 1983 upon a showing of (1) personal involvement in the

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constitutional deprivation or (2) a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 1207

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(9th Cir. 2011). A plaintiff must also show that the supervisor had the requisite state of

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mind to establish liability. Oregon State University Student Alliance v. Ray, No. 10-

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35555, slip op. 12757, 12786-87 (9th Cir. Oct. 23, 2012). For claims of invidious racial

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discrimination, which require specific intent, the supervisor must act with the purpose

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of violating the plaintiff’s constitutional rights. Id. at 12787, 12792. For Eighth

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Amendment claims based upon deliberate indifference, supervisor liability is

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established by showing the supervisor’s knowing acquiescence to the violations. Id. at

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12787-88, 12793.

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Plaintiff’s allegations, when liberally construed, are that Cate implemented a
policy throughout California’s prisons that when there is a violent incident involving an

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inmate, other inmates of the same race at that prison are locked down even if they were

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not personally involved in the incident. Plaintiff claims that it was pursuant to this

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policy that the other Defendants locked him down on three occasions despite his lack of

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personal involvement in the incidents. If these allegations are true, then Defendant

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Cate’s actions in creating or implementing the policy would have caused the lockdowns

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of which Plaintiff complains. Moreover, it could be inferred that Defendant Cate acted

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with the purpose of discriminating against Plaintiff based upon his race and/or that he

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knowingly acquiesced in depriving him of outdoor exercise as part of the lockdown.

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The Court has already determined in conducting a review of the amended complaint

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pursuant to Section 1915 that Plaintiff’s allegations are sufficient to state a cognizable

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claim for relief, and Defendants offer no reason for changing that conclusion here.

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Accordingly, Defendants’ motion to dismiss the claims against Cate for failure to state a

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cognizable claim for relief is denied.

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IV.

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Qualified Immunity
Defendants argue that they are entitled to qualified immunity on Plaintiff’s

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claims. A court considering a claim of qualified immunity must determine whether the

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plaintiff has alleged the deprivation of an actual constitutional right and whether such

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right was clearly established such that it would be clear to a reasonable officer that his

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conduct was unlawful in the situation he confronted. Pearson v. Callahan, 555 U.S.

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223, 236 (2009).

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The Court has determined that Plaintiff’s allegations, when liberally construed,

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allege violations of the constitutional rights to equal protection and to be free from cruel

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and unusual punishment. Defendants posit that the Court must determine whether an

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inmate has a “clearly established right” not to be placed on a lockdown when violence

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threatens the institution. Defendants have offered a declaration describing threats of

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violence to Plaintiff’s prisons at the time of the lockdowns, but such evidence clearly

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may not be considered in conjunction with a motion to dismiss under Rule 12(b)(6).2 It

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is certainly clearly established that prison officials may not intentionally discriminate

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against inmates based on their race, see Wolff v. McDonnell, 418 U.S. 539, 556 (1974),

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which Plaintiff alleges Defendants have done by locking him down because he is black.

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Similarly, it is clearly established that outdoor exercise is a basic human necessity

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protected by the Eighth Amendment, which prohibits depriving inmates of outdoor

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exercise for extended periods of time. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th

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Cir. 1993); see, e.g., Pierce v. County of Orange, 526 F.3d 1190, 1212 (9th. Cir. 2008)

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(90 minutes of exercise per week is insufficient). Defendants could not have reasonably

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believed that they could intentionally discriminate against Plaintiff solely because he is

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black, or that they could, without justification, deprive him of outdoor exercise for

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weeks and months at a time. As these are the facts alleged in the complaint, and such

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facts must be taken as true and liberally construed in Plaintiff’s favor, Defendants are

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not entitled to dismissal of the claims based upon qualified immunity.

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V.

Preliminary Injunction

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Plaintiff has filed a motion for a preliminary injunction requiring Defendants to

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provide him with ten hours of outdoor exercise per week. A preliminary injunction

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requires, among other things, a showing that Plaintiff is likely to succeed on the merits

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of his claims. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).

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The Ninth Circuit has not specified the “minimum amount of weekly exercise that must

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be afforded to detainees who spend the bulk of their time inside their cells.” Pierce v.

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County of Orange, 526 F.3d 1190, 1212 (9th. Cir. 2008). Plaintiff has not shown any

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likelihood that of success on his claim for ten hours per week of exercise because the

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amount of outdoor exercise to which he is entitled under the Eighth Amendment is not

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This is in contrast to the unenumerated Rule 12(b) motion to dismiss on exhaustion
grounds discussed above. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

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at all clear.3 Accordingly, Plaintiff’s motion for a preliminary injunction will be denied.

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CONCLUSION

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For the foregoing reasons, Defendants’ motion to dismiss is DENIED (docket

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number 35), Plaintiff’s motion for a preliminary injunction is DENIED (docket number

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GRANTED.
Defendants shall file an answer to the amended complaint within 28 days of the

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date this order is filed.
No later than 91 days from the date this order is filed, Defendants shall file a

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motion for summary judgment If Defendants are of the opinion that this case cannot be

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resolved by summary judgment, they shall so inform the court prior to the date the

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summary judgment motion is due. All papers filed with the court shall be promptly

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served on plaintiff. Plaintiff's opposition to the summary judgment motion, if any, shall

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be filed with the court and served upon defendants no later than 28 days from the date

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the motion is filed. Plaintiff must read the attached page headed “NOTICE --

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WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952,

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953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12

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(9th Cir. 1988). Defendants shall file a reply brief no later than 14 days after the date

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the opposition is filed. The motion shall be deemed submitted as of the date the reply

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brief is due. No hearing will be held on the motion.

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//

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//

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It is also not clear whether he remains subject to a lockdown or the deprivation of
outdoor exercise, or whether the lockdown has been lifted, in which case the motion
would be moot.

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Along with their motion for summary judgment, Defendants shall proof that they

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served plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548,

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slip op. 7871 (9th Cir. July 6, 2012), and/or Stratton v. Buck, No. 10-35656, slip op.

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11477 (9th Cir. Sept. 19, 2012), at the time they served him with their motion. Failure

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to do so will result in the summary dismissal of the motion without prejudice.

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IT IS SO ORDERED.

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DATED: January 28, 2013
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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JOSEPH RHINEHART,

Case Number: CV11-00812 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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MATTHEW CATE et al,

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Defendant.

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on January 28, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Michael L. Rhinehart #:C39412
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960

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Dated: January 28, 2013

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed.

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A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if

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granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material

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fact--that is, if there is no real dispute about any fact that would affect the result of your case, the

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party who asked for summary judgment is entitled to judgment as a matter of law, which will

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end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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your complaint says. Instead, you must set out specific facts in declarations, depositions, answers

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to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts

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shown in the defendant's declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition, summary judgment,

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if appropriate, may be entered against you. If summary judgment is granted, your case will be

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dismissed and there will be no trial.

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