Opinion
6:21-CV-00223-YY
08-10-2022
PEDRO SEGURA, SR. Plaintiff, v. COMMANDER TAD LARSON; MARION COUNTY SHERIFF'S OFFICE - JAIL; and JOHN DOES, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff, an inmate in the Marion County Jail, brings this action against Commander Tad Larson, the Marion County Sheriff's Office-Jail, and unidentified John Does. He alleges violations of his Fifth, Eighth, Fourteenth, and First Amendment rights pursuant to 42 U.S.C. § 1983. Second Am. Compl. 9-14, ECF 96. This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff has not identified these Doe defendants, and the deadline to identify them elapsed on November 29, 2021. See Scheduling Order, ECF 123.
Defendants have filed a Motion for Summary Judgment on all claims. ECF 96. Plaintiff has also filed a Motion for Leave to File an Amended Complaint. ECF 128. For the reasons set forth below, defendants' Motion for Summary Judgment should be GRANTED, and plaintiff's Motion for Leave to file an Amended Complaint should be DENIED.
I. Overview of Plaintiff's Claims
Plaintiff is a pre-trial detainee at the Marion County Jail (“MCJ”). Second Am. Compl. 6, ECF 96. At a fundamental level, his Second Amended Complaint pleads a series of generalized grievances associated with solitary confinement. For example, plaintiff alleges that solitary confinement in Oregon entails “spending on average at least 23 hours or 12 to 15 days in a 6-by-12 foot cell with no natural light or access to outdoors or fresh air and limited opportunities to speak to people.” Id. at 4. He alleges that solitary confinement includes “additional sanctions” such as (1) lockdowns, cell searches, group punishments, and only “an hour out [of] your cell” every day; (2) no access to newspapers, newsletters, books, religious programs, “legal phone calls or phone calls,” or video visits; and (3) loss of commissary food, hygiene items, the use of a table, and food packages. Id. at 6. Plaintiff also alleges that solitary confinement “creates” a variety of harms, including severe confusion, paranoia, hallucination, increased agitation, random and impulsive behavior, self-directed violence, anxiety, symptoms of post-traumatic stress disorder, and reduced sociability. Id. at 5-6.
Plaintiff then alleges that despite his attempts “to build a life of service and meaning,” MCJ officials have repeatedly and arbitrarily placed him in solitary confinement for prolonged periods of time. Id. at 6. Plaintiff claims that he is being wrongfully placed in solitary confinement, and that despite his use of kytes, grievances, and appeals to inform MCJ officials of a “compelling factual argument as to why he should be released,” defendants have not “take[n] mitigating fact[s] into account.” Id. at 7. As a result of his allegedly unlawful placements in solitary confinement, plaintiff claims he feels “severe distress, anxiety, sleeplessness, anger, panic attacks, fears of prosecution, seeing things that are not there, lack of impulse control, withdrawal, appetite loss, heart palpitations, lack of loss of[sic] sense of belonging, self-esteem, meaningfulness, self-identity, shortness of breath, and tension.” Id. at 7.
II. Legal Standards
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. PRO. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
B. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although . . . pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Moreover, on a motion for summary judgment, a pro se party involved in civil litigation “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). “It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas “where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.” Woodroffe v. Oregon, No. 2:12-CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'd sub nom. Woodroffe v.Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
III. Procedural Due Process
Plaintiff alleges, generally, a violation of his Fifth Amendment right to “due process.” Second Am. Compl. 9-10, ECF 96. Regarding his Fourteenth Amendment claim, plaintiff does not specify whether it is based on either procedural due process or substantive due process, but he claims that defendants violated his rights in “giving and validating prolonged arbitrary solitary detention ....without meaningful process.” Id. at 10. This comment leads the court to evaluate plaintiff's Fifth and Fourteenth Amendment claims through a procedural due process lens.
A. Legal Standard
“To obtain relief on § 1983 claims based upon procedural due process, the plaintiff must establish the existence of ‘(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.'” Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) (quoting Portman v. Cnty.of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). “Pretrial detainees have a right to procedural due process before they are subjected to more severe conditions of confinement than other detainees.” Shorter v. Baca, 895 F.3d 1176, 1190 (9th Cir. 2018). Accordingly, pretrial detainees generally cannot be subjected to disciplinary segregation without a due process hearing, and certain processes and rights are attached to that hearing. See Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996).
B. Analysis
Plaintiff's Second Amended Complaint does not reference any instances in which his procedural due process rights were supposedly violated. Instead, any allegations of specific violations are found in plaintiff's opposition to defendants' motion for summary judgment: he claims that he “never got NOTICE or an opportunity to be heard at a meaningful time and in a meaningful manner.” Opp. Mot. Summ. J. 11, ECF 172 (capitals in original). He also recites rights commonly associated with due process hearings, including the “right to call witness[es],” “present documentary evidence,” and receive a “written statement of the evidence behind a decision” and the “reasons for the punishment imposed,” and then alleges that defendants “[n]ever let [him] have his due process right.” Id. at 12 (quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1974)).
Plaintiff's assertions-raised for the first time in a responsive pleading-are not only untimely but also in direct conflict with the contemporaneous evidence produced by defendants. For example, plaintiff suggests that defendants never provided notice of a hearing or the ability to present witnesses. But the transcript of a disciplinary hearing, held on November 12, 2018, indicates that plaintiff ultimately declined to call any witnesses:
[Sergeant Gilmore]: Segura[,] I noticed that you, number one, you selected to have a hearing, and that's fine, but you also selected to call witnesses [to] the formal hearing. You can do that, you have every right to; however, in order to do that you have to submit the form. Yeah [. . . ]
[Plaintiff]: No, I didn't want any witnesses.Davis Decl., Ex. M at 1, ECF 170-2 (emphasis added). This exchange from one of plaintiff's hearings signals three facts: plaintiff received notice of his infractions and the opportunity to have a hearing, he elected to have that hearing, and he had the ability to call witnesses by following procedures that he was aware of. Put differently, this exchange alone contradicts plaintiff's claim that he “never got NOTICE or an opportunity to be heard at a meaningful time and in a meaningful manner.” Opp. Mot. Summ. J. 11, ECF 172 (capitals in original) (emphasis added).
This conclusion is bolstered by exhibits submitted by Lt. Jacob Ramsey that include (1) numerous hearing notices, many of which were signed by plaintiff and indicate he requested a formal hearing, and (2) copies of formal hearing reports indicating the decisions that were made and the evidence relied on to reach those decisions. See generally Ramsey Decl., Ex. F, ECF 203-3. In contrast, the only pieces of evidence that plaintiff proffers in support of his procedural due process claim are hearing reports, which demonstrate no obvious procedural deprivations, and incident reports, which are used internally by MCJ staff to document all notable events, including warnings, “unusual” events, and “other” classifications (such as, for example, documentation that plaintiff requested a band-aid). See, e.g., Opp. Mot. Summ. J. 11, ECF 196 (“But [defendants] still [take away reading material during confinement] without due process. See Ex.'s A-91 to A-107.”]) (citing Segura Decl. 109-125, ECF 173 (hearing and incident reports that plaintiff asserts offer clarity on his due process claims)). Simply put, the evidence in the record demonstrates that defendants have provided plaintiff with the procedural due process rights to which he is entitled.
IV. “Cruel and Unusual Punishment”
Next, plaintiff alleges that defendant's actions, “including[,] but not limited to using [various forms of solitary confinement] and validating prolonged arbitrary solitary detention lengths without meaningful process” violated his Eighth Amendment right to be free of cruel and unusual punishment. Second Am. Compl. 11, ECF 96.
Because plaintiff is a pretrial detainee, the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment's Cruel and Unusual Punishment Clause, applies to this type of claim. Bell v. Wolfish, 441 U.S. 520, 537 n.16 (1979). “The status of the detainee determines the appropriate constitutional standard for evaluating conditions of confinement.” Vazquez v.Cty. of Kern, 949 F.3d 1153, 1163 (9th Cir. 2020) (citation and quotation omitted). “Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be ‘cruel and unusual' under the Eighth Amendment.” Id. (quoting Wolfish, 441 U.S. at 537 n.16 (quotation marks omitted)); see also Whitley v. Albers, 475 U.S. 312, 318 (1986) (“The Cruel and Unusual Punishments Clause was designed to protect those convicted of crimes . . . and consequently the Clause applies ‘only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”).
The court evaluates a Fourteenth Amendment claim alleging unconstitutional conditions of confinement under an objective deliberate indifference standard, applying the following elements:
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff's injuries.Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1068-71 (9th Cir. 2016).
Plaintiff's Second Amended Complaint can be construed to claim that a variety of conditions associated with solitary confinement, including the length of confinement, alleged restrictions on access to legal services and medical care, and limitations on daily physical exercise, constitute a violation of his Fourteenth Amendment rights. Each of these aspects is analyzed in turn. But at the outset, it is important to recognize two important limitations on plaintiff's claim that solitary confinement constitutes “cruel and unusual punishment” of some form.
First, in the Eighth Amendment context, “even an indeterminate sentence in administrative segregation, without more, does not constitute [a] violation of the Eighth Amendment. McDaniel v. Grounds, No. C 11-0555 WHA PR, 2011 WL 1113477, at *2 (N.D. Cal. Mar. 25, 2011) (citing Anderson v. County of Kern, 45 F.3d 1310, 1315-16 (9th Cir. 1995)). “[P]retrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment,” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998), and the Ninth Circuit has never held that the mere placement of a pretrial detainee in administrative segregation alone constitutes a violation of the Fourteenth Amendment.
Second, “[i]n assessing conditions of confinement for pretrial detainees, [a court] considers whether the conditions amount to punishment, causing harm or disability significantly exceeding or independent of the inherent discomforts of confinement, or whether they merely result from some legitimate governmental purpose.” Stanley v. Mason Cnty. Jail, No. 321CV05860MJPJRC, 2022 WL 2657367, at *4 (W.D. Wash. Apr. 19, 2022), report and recommendation adopted, No. C21-5860 MJP, 2022 WL 2353377 (W.D. Wash. June 30, 2022) (citing Doe v. Kelly, 878 F.3d 710, 714, 720 (9th Cir. 2017)). It is difficult to distinguish plaintiff's alleged injuries, which include severe distress, anxiety, sleeplessness, and anger as harm independent from those “inherent discomforts of confinement.” Id. Moreover, defendants have a clear legitimate governmental purpose in placing disruptive detainees, after a hearing where constitutional processes are respected, in administrative segregation.
A. Length of “Solitary Confinement”
As an initial matter, it is important to clarify the period during which plaintiff was housed in what he alleges is “solitary confinement”-or as defendants refer to it, “disciplinary segregation.” Plaintiff claims that he has been held in “MAX, A5, D5 (solitary confinement),” i.e., Delta Maximum, for the following periods: May 21, 2018 to October 15, 2019; February 23, 2020 to March 14, 2020; and March 28, 2020 onward (“and still going”). Second Am. Compl. 3, ECF 96. Defendants take issue with plaintiff's “solitary confinement” label and allege that plaintiff has been held in “[s]egregation units for approximately a total of 12 months of his months in custody at the Marion County Jail.” Mot. Summ. J. 9, ECF 167. Defendants add that for the other 36 months plaintiff has been at MCJ, he has spent “a little more than two years housed in Unit D 1-3,” i.e., Delta Maximum, and “244 days in C-Unit,” a “general population unit.” Id; see also Dinardo Decl. ¶ 5, ECF 168.
The crucial difference between plaintiff's and defendants' descriptions is how the parties characterize time in Delta Maximum units. Plaintiff appears to include any assignments in Delta Maximum within his calculations of time spent in solitary confinement. But as defendants point out, Delta Maximum units are far less restrictive than disciplinary segregation ones: detainees in Delta Maximum “can have cellmates, general visits with loved ones, [] access to additional reading materials, such as books, daily exercise and dayroom time, greater access to commissary items, daily showers, and additional materials that can be kept in cells.” Dinardo Decl. ¶ 8, ECF 168; see also Davis Decl. 77, ECF 170-2 (listing various restrictions associated with Delta Maximum). And while plaintiff repeatedly conflates Delta Maximum as a form of “solitary confinement,” the differences between the two are significant, as many of the constitutional deprivations he alleges are unique to inmates in disciplinary segregation (in other words, the allegedly unconstitutional restrictions are not applied to Delta Maximum detainees). See Davis Decl. 77, ECF 170-2 (noting some distinctions between D4, or “disciplinary segregation” detainees, and Delta Maximum detainees).
To be sure, defendants note that individuals in administrative segregation continue to receive “medical care, access to courts and counsel, sanitation, protection, and other constitutional requirements.” Mot. Summ. J. 8, ECF 167.
Lastly, it useful to discuss procedural aspects of how detainees are assigned to disciplinary segregation in the first place. “Placement . . . results only after a hearing is conducted for [m]ajor violations of [MCJ] rules,” and generally lasts as long as the “recommended period of placement in Segregation.” Dinardo Decl. ¶ 9, ECF 168. As discussed above, all detainees are afforded timely notice of that hearing and a meaningful opportunity to present and call witnesses; moreover, if a hearing officer recommends placement in disciplinary segregation, detainees are entitled to a written statement of the evidence supporting that decision, the reasons for punishment, and the right to appeal. Id. Simply put, while plaintiff alleges that segregation is indistinguishable from placement in Delta Maximum confinement, and that placement in disciplinary segregation is done in an arbitrary manner, evidence in the record disproves such an assertion.
B. Access to Legal Services
Plaintiff alleges that defendants have denied him appropriate access to his legal counsel during time in segregation. But there is nothing about this allegation that indicates defendants placed plaintiff in a position that put him at substantial risk of serious harm. Castro, 833 F.3d at 1068-71.
The Sixth Amendment, which plaintiff does not cite, provides for the right to counsel for accused persons in a criminal prosecution. See U.S. CONST., amend. VI. But even if plaintiff had cited the Sixth Amendment, “[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel.” Morris v. Slappy, 461 U.S. 1, 11 (1983). Here, it is difficult to ascertain what exactly plaintiff complains about regarding his access to legal services, as his filings merely state that solitary confinement may lead to “no legal phone calls or phone calls” and that more generally, being placed in confinement and having no “visits with [his] legal team” has led to “issues with his criminal case.” Second Am. Compl. 6, ECF 96; Opp. Summ. J. 2-3, ECF 172.
To the extent plaintiff argues that MCJ has removed his access to counsel or legal resources during his time in Delta Maximum or disciplinary segregation, evidence submitted by defendants disproves such an assertion, and corroborates MCJ's position that detainees still have access to legal counsel in either assignment. As a starting point, the MCJ's published procedures for detainees in Delta Maximum and disciplinary segregation state that “[l]egal and attorney visits are permitted.” Davis Decl. 77, ECF 170-2. On a factual level, copies of plaintiff's “Professional Visitor Log” indicate that he has been visited by attorneys, evaluators, and investigators numerous times during plaintiffs' alleged period of segregation or confinement. See Ramsey Decl., Ex. A, ECF 203 (documentation of dozens of visits between January 2019 and November 2021). And similarly, copies of plaintiff's “Inmate Moving Listing” logs demonstrate that plaintiff checked into the facility's law library dozens of times, with many of his visits lasting over an hour. See Ramsey Decl., Ex. E at 1-138, ECF 203-2 (handwritten records of plaintiff's law library visits between April 2018 and June 2021); id. at 139-44 (digitized records of law library visits after June 2021). The evidence demonstrates that despite plaintiff's assertions to the contrary, he continues to enjoy access to legal counsel and other legal resources despite being in either Delta Maximum or disciplinary segregation.
C. Medical Care
Plaintiff also alleges that he has been denied access to appropriate medical care. His allegations, however, are effectively generalized grievances about the effects of solitary confinement and fail to detail any instances where he either (1) sought medical care, (2) was denied medical care, (3) what injuries stemmed from the denial of medical care, or (4) how the care he received was deficient or unreasonable. “[A] plaintiff must provide ‘more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
D. Other Grievances: Nutrition, Hygiene, Outside Phone Calls
Plaintiff also alleges a variety of grievances associated with restrictions on detainees in solitary confinement, including the “loss of commissary food” and “food packages,” the absence of unspecified “hygiene items,” and no “phone calls.” As defendants correctly note, “[w]hile the Constitution does not mandate that prisons be comfortable, nor that they provide every amenity that one might find desirable, neither does it permit inhumane ones.” Mot. Summ. J. 6, ECF 167 (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Prison officials should ensure that detainees receive “adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee [their] safety.'” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). But in the same vein, federal courts generally refrain from interfering whenever prisoners are inconvenienced or suffer de minimis injuries. Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988) (holding that an allegation that an inmate slept without a mattress for one night is insufficient to constitute an Eighth Amendment violation). Simply put, courts should avoid “enmeshing themselves in the minutiae of prison operations in the name of the Constitution.” Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981).
Plaintiff's miscellaneous grievances-an alleged loss of commissary food, food packages, and a table to consume foodstuffs; deprivation of unspecified hygiene items, and the absence of non-legal phone calls-fall under the above standards. While plaintiff is assuredly disappointed in these restrictions, he does not allege that he is being deprived of adequate food, nor does he claim that he is being subjected to unsanitary conditions. Thus, his grievances do not survive summary judgment.
E. Exercise
Plaintiff's other grievance-that he is denied adequate exercise at MCJ-is slightly more concerning, but still fails to survive summary judgment. As an initial matter, plaintiff concedes that during his time in Delta Maximum, he receives an hour out of his cell every day to exercise. Segura Decl. ¶ 20, ECF 173. Plaintiff does not allege any specifics as to how such a restriction, which appears reasonable on its face, is unconstitutional.
However, defendants expressly acknowledge that they place more significant restrictions on detainees in disciplinary segregation. A document provided by defendants indicates that detainees in disciplinary segregation are allowed the following amounts of exercise:
0 - 11 days, no out of cell exercise.
12 - 32 days, 60 minutes inside exercise every three (3) days.
33 - 42 days, 60 minutes exercise inside or outside every three (3) days.
45 and more days, 60 minutes exercise inside or outside every day for five (5) days, repeating every seven (7) days.Davis Decl. 77, ECF 170-2. Put differently, inmates in disciplinary segregation receive an average of zero minutes of exercise per day for their first week, and then an average of eight-and-a-half minutes per day during their second week (before that amount ramps up significantly). In plaintiff's case, he receives an average of 20 minutes of exercise per day between his 12th and 32nd days in disciplinary segregation, but receives no out-of-cell exercise for the first 11 days. This short-term deprivation is facially concerning, as the Ninth Circuit has suggested that providing “pre-detainees in administrative segregation and other restrictive classifications, such as protective custody,” with “the equivalent of slightly less than thirteen minutes of exercise a day does not give meaningful protection to this basic human necessity.” Pierce v. Cnty. of Orange, 526 F.3d 1190, 1212 (9th Cir. 2008).
This is because an inmate in their second week of disciplinary segregation (up to 14 days) has no out-of-cell exercise for the first 11 days, and then on the 12th day, begins to receive 60 minutes of exercise every three days.
Perhaps recognizing this issue, defendants have proffered the following explanation for MCJ's policy:
AICs placed in segregation have exercise restrictions placed on them during the initial transfer to the segregation unit. The goal of this restriction is twofold. First, it is to protect the safety of staff and other AICs from an individual that has been found guilty of a major violation, which means that they have either harmed or threatened harm to another or taken an action that seriously disrupted the operation of the Marion County Jail in the recent past. Second, it is to encourage an AICs behavior to conform with jail rules, which again, helps ensure the safety of the individual, other AICs and staff and, also, ensures the continued orderly operation of the jail.Ramsey Decl. ¶ 15, ECF 202.
Of these justifications, the second-encouraging conformity with jail rules and ensuring the safety of all at the facility-is nothing more than a “generalized reference to institutional security concerns” and is therefore unpersuasive. Pierce, 526 F.3d at 1212-13. The first-that AICs in disciplinary segregation “have either harmed or threatened harm to another or taken an action that seriously disrupted” the jail's operations and are thus major security threats-is more viable. Plaintiff has an “extensive disciplinary history,” Ramsey Decl., Ex. F at 24, ECF 203-3, and was placed in disciplinary segregation for assaulting or fighting with other AICs, id. at 4850, 62-63, 64, 79, planning to “to beat up another inmate,” id. at 24, 30, and refusing to obey an order to stop advancing toward another AIC to fight, id. at 1, 4-5. MCJ corrections staff observed that plaintiff's assaultive behavior posed a “serious safety and security risk” for both other AICs and deputies. Id. at 30.
Ultimately, it is the temporary nature of the restriction on exercise-a eleven-day period-that redeems defendants' policy. As the Pierce court noted, a detainee's right to daily exercise generally exists for those “who are held for more than a short time and spend the bulk of their time inside their cells.” 526 F.3d at 1212 (emphasis added) (citing Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994)). Importantly, in Pierce, the Ninth Circuit cited the Tenth Circuit's Housley decision, which referenced the Seventh Circuit's jurisprudence outlining the period of time in which a deprivation of exercise are acceptable, and those cases found that deprivations for periods of ten and twenty-eight days, respectively, do not violate constitutional rights because of their limited nature. 41 F.3d at 599; see Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (finding constitutional a policy that deprived out-of-cell exercise because it “was a short-term situation, lasting only four weeks”); Shelby Cnty. Jail Inmates v. Westlake, 798 F.2d 1085, 1089 (7th Cir. 1986) (noting that many of the inmates at a particular facility “are incarcerated ten days or less” and that a policy restricting inmates from out-of-cell exercise for those ten days “might pass muster”). In contrast, the inmates in Pierce received an average of thirteen minutes of exercise per day indefinitely while on administrative segregation-a massive difference from the elevenday restriction that MCJ temporarily places on inmates in disciplinary segregation. In sum, because the Pierce right to exercise attaches to detainees “who are held for more than a short time,” and the period of deprivation at MCJ is only eleven days, after which access increases, defendants' exercise policies related to disciplinary segregation do not violate the Fourteenth Amendment.
It should be noted that a completely different aspect of the Housley decision, involving the doctrine of standing for an inmate to access courts, was “effectively overruled” by Lewis v.Casey, 518 U.S. 343 (1996). Tucker v. Graves, 107 F.3d 881, 881 n.2 (10th Cir. 1997).
V. Equal Protection
Plaintiff also alleges that defendants committed “discrimination because of race or other reasons” against him, in violation of the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Or., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). A plaintiff may prevail on an equal protection claim by demonstrating that “a class that is similarly situated has been treated disparately.” Christian Gospel Church, Inc. v. City and Cnty. of San Francisco, 896 F.2d 1221, 1225 (9th Cir. 1990).
The problem with plaintiff's equal protection claim is that it is nothing but a “threadbare recital of the elements of a cause of action, supported by mere conclusory statements.” Twombly, 550 U.S. at 555; see Second Am. Compl. 12-13, ECF 96. The only meaningful fact that contributes to plaintiff's equal protection claim comes in his “Allegations Specific to Mr. Segura” section, in which he notes that he is “a person of color.” But plaintiff does not even allege that he was subjected to solitary confinement because of his status as a person of color, let alone describe any instances suggesting disparate treatment or discriminatory intent or impact on the basis of race. Otherwise stated, plaintiff does not come close to sustaining an equal protection claim at this summary judgment stage.
VI. First Amendment Free Exercise and Retaliation Claims
Plaintiff also alleges that disciplinary segregation-related policies related to accessing newspapers, newsletters, and other religious texts violate his First Amendment rights. Plaintiff's assertion can be construed in a couple of ways: (1) a free exercise claim, where limitations on religious materials may infringe upon a detainee's First Amendment rights, or (2) a retaliation claim, where MCJ officials applied disciplinary measures to punish and deter the exercise of plaintiff's First Amendment privileges. In either scenario, however, plaintiff fails to plead the bare minimum to survive summary judgment.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST., amend. I. Detainees “retain protections afforded by the First Amendment, . . . including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). “Accordingly, a detainee's placement in administrative segregation does not, standing alone, justify a complete denial of opportunities to practice religion.” Pierce, 526 F.3d at 1209. But the First Amendment rights of detainees may be limited or retracted if required to “maintain [] institutional security and preserv[e] internal order and discipline.” Wolfish, 441 U.S. at 549.
Importantly, plaintiff does not plead any facts to demonstrate that defendants have placed a substantial burden on the free exercise of his religion. The Ninth Circuit has adopted the “sincerity test,” which requires an inmate alleging a violation of the free exercise clause to demonstrate that (1) the religious belief is “sincerely held,” and (2) the concern is “rooted in religious belief, rather than in secular philosophical concerns.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quotations omitted); see also Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir. 2008) (adopting the Malik formulation of the sincerity test). But plaintiff does not plead that he is religious at all, or describe the existence of any concerns associated with any religious beliefs he may hold. Moreover, plaintiff does not demonstrate how defendants' policy for religious texts for inmates in segregation-“one religious with them, of their choice that meets other requirements” and permissible requests for “personal religious visits”-is not “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
As noted, plaintiff's claim can alternatively be construed as a First Amendment retaliation claim. In the detainee context, a viable First Amendment retaliation claim has five elements:
(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Plaintiff has pled or demonstrated only one of these elements-that he was placed in administrative segregation; he has not pled that he engaged in any protected conduct, that such conduct was a but-for cause of his placement in segregation, that segregation has chilled any First Amendment rights he wishes to express, or that defendants' actions failed to reasonably advance a legitimate correctional goal. Id.; see generally Second Am. Compl., ECF 96. Plaintiff's allegations thus do not raise a sufficient First Amendment claim that survives summary judgment.
VII. Excessive Force Claim
In his Opposition to defendants' motion for summary judgment, plaintiff seemingly asserts that defendants also applied excessive force to him. See, e.g., Opp. Mot. Summ. J. 5, ECF 172 (disputing that defendants used appropriate physical and mental force against him). To prove an excessive force claim under the Fourteenth Amendment, an inmate must show that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v.Hendrickson, 135 S.Ct. 2466, 2472-73 (2015). The Kingsley court noted:
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any
effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Id. at 2473 (citation omitted). “[A]lthough reasonableness is normally a jury question, defendants can still win on summary judgment if the district court concludes after resolving all facts in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.” Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995) (citation and quotation marks omitted).
Plaintiff's comments, however, are insufficient to substantiate an excessive force claim. To the extent plaintiff argues that the defendants applied “excessive force” in a metaphorical sense, his constitutional objections to various elements of his solitary confinement and administrative segregation have already been addressed earlier. On the other hand, if plaintiff is arguing that defendants have applied excessive physical force to him (such as inappropriate contact), he has failed to plead any facts suggesting such. Thus, plaintiff's excessive force claim also cannot survive summary judgment.
VIII. Defendants' Additional Arguments
Defendants make additional arguments regarding proper defendants (Monell liability) and qualified immunity. It is unnecessary to address those arguments, as defendants are otherwise entitled to summary judgment, as discussed above.
IX. Motion to Amend
Plaintiff seeks leave to file a Third Amended Complaint. ECF 128. Rule 15(a)(2) requires that the court “should freely give leave [to amend a pleading] when justice so requires.” Such leave, however, “is not to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). The court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, . . . [and] futility of amendment.'” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (alterations in original) (emphasis added).
Plaintiff seeks amendment to do two things. First, he alleges a “fear[]” that “defendants will take up all the 30 days to respond” to his discovery requests, and that doing so would prevent him from adequately discovering and naming “all Does he FEARS” before the deadline to name Doe defendants. Mot. Amend 4, ECF 128-1 (capitals in original). Second, he claims that granting his motion “allows [him] to describe in further detail [what is] at issue in this action, eliminating disputes over form that would waste this court's time.” Id. at 5.
Review of plaintiff's proposed Third Amended Complaint (ECF 128-3) and his briefing supporting amendment, indicate that allowing these amendments would ultimately be futile. First, a motion to amend is not a proper vehicle for resetting, extending, or tolling discovery deadlines; relatedly, defendants are entitled to the full response period under Rule 26 to respond to plaintiff's voluminous discovery requests. And second, amendment would not cure the substantial pleading defects that the court has identified throughout these findings and recommendations. Specifically, plaintiff's proposed Third Amended Complaint continues to recite objections to his perceived assignment of solitary confinement “since 2-8-2018 to now,” Third Am. Compl. 12, ECF 128-2; pleads grievances that mirror the deprivation of privileges associated with solitary confinement, id. at 13-14; repeatedly emphasizes the fact that he is a detainee, see generally id.; and lists approximately two dozen other defendants who allegedly reinforced a system of solitary confinement upon him. Having addressed the constitutionality of these respective concerns above already along with their factual premises (as related to plaintiff), it would be futile to allow plaintiff to amend and reallege virtually similar claims.
RECOMMENDATIONS
Defendants' Motion for Summary Judgment (ECF 167) should be GRANTED and plaintiff's Motion for Leave to File an Amended Complaint (ECF 128) should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 31, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.