627 F.3d 338 (9th Cir. 2010), 07-17265, Hebbe v. Pliler
|Citation:||627 F.3d 338|
|Opinion Judge:||REINHARDT, United States Circuit Judge:|
|Party Name:||Paul Eric HEBBE, Plaintiff-Appellant, v. Cheryl PLILER, Warden, CSP Sacramento; Steven Vance, Correctional Captain, CSP Sacramento, Defendants-Appellees.|
|Attorney:||Michael G. Williams (argued), U.C.L.A. School of Law Ninth Circuit Clinic, Los Angeles, CA, supervised by Charles C. Lifland, Jeremy Maltby, Catalina Joos Vergara (argued), O'Melveny & Myers, LLP, Los Angeles, CA, for the plaintiff-appellant. Edmund G. Brown, Jr., Rochelle C. East, David Carrasco...|
|Judge Panel:||Before: DANIEL M. FRIEDMAN,[*]D.W. NELSON, and STEPHEN REINHARDT, Circuit Judges. Opinion by Judge REINHARDT; Concurrence by Judge FRIEDMAN. FRIEDMAN, Circuit Judge, concurring:|
|Case Date:||July 29, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted April 7, 2010.
Amended Nov. 19, 2010.
Appeal from the United States District Court for the Eastern District of California, Edmund F. Brennan, United States Magistrate Judge, Presiding. D.C. No. CV-00-00306-EFB.
The opinion filed on July 29, 2010, and reported at 611 F.3d 1202, is hereby amended so as to conform with the amended opinion filed herewith. The concurring opinion filed on that date remains unchanged.
The petition for rehearing en banc remains pending before the court and shall be deemed to apply to the amended opinion, unless within 14 days of the date of this order the appellees withdraw or amend their petition.
Paul Hebbe, a prisoner in the California State Prison-Sacramento C-Facility (" CSP" ), appeals the district court's grant of prison officials Cheryl Pliler, Warden of the CSP, and Steven Vance, Correctional Captain of the CSP (individually and collectively " the prison officials" ) motion to dismiss his 42 U.S. C. § 1983 action under Federal Rule of Civil Procedure 12(b)(6). Hebbe appeals the district court's ruling with respect to two distinct constitutional claims. First, Hebbe claims that the prison officials violated his constitutional right of court access because they denied him use of the prison law library without providing any alternative means of legal research assistance during the limited time period in which he was permitted to appeal his state court criminal conviction. Second, Hebbe claims that subsequently the prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment because they forced him to choose between two constitutional rights, his right to exercise and his right of court access, by allowing him out of his cell only two hours per day, four days per week, for a period of eight months. We reverse the district court's ruling as to both claims and remand the case for further proceedings.
Paul Hebbe was convicted, pursuant to a plea agreement, of two counts of burglary. He was sentenced to a term of eighteen years and four months. He appealed his conviction to the California Court of Appeal. The court appointed pro bono counsel to represent him on appeal.
On November 9, 1998, while Hebbe was imprisoned in the CSP, a fight broke out and parts of the facility, including the part in which he was held, were subjected to a " lockdown." During lockdowns, CSP inmates are confined to their cells at almost all times and are not allowed to exercise outdoors or use the institution's law library.
On November 18, 1998, Hebbe's pro bono appellate counsel withdrew and filed a " no issue" Wende brief in the California Court of Appeal.1 The court accepted the brief, and advised Hebbe of his right to file, pro se, a supplemental appellate brief within thirty days, by December 18, 1998. Hebbe states in his complaint that he was still on lockdown, and thus had no access to the law library for that entire thirty-day period. He asserts that he was therefore unable to research and file a supplemental appellate brief by the December 18, 1998 deadline.
The CSP alleges that it provides inmates with emergency library services during a lockdown through a paging system, although this system offers extremely limited access to legal materials.2 According to the prison officials, Hebbe was allowed access to this paging system while he was on lockdown; according to Hebbe, however, the prison officials never informed him of the program's existence or that he had a right to use the program to access legal reference materials. Hebbe alleges that he did not learn of the existence of the paging system until January of 1999. Consequently, he asserts, he did not file a supplemental brief before the California Court of Appeal's December 18, 1998, filing deadline. For the purposes of a motion to dismiss, we construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. See Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). We therefore take the factual allegations in Hebbe's complaint as true. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir.2002)
On March 8, 1999 Hebbe's section of the prison was removed from lockdown status and he was once again allowed to access the prison's law library. Shortly thereafter, there was another disturbance and the prison officials put Hebbe's section of the prison back on lockdown, from March 28, 1999 until April 18, 1999. On April 20, 1999, Hebbe filed a " continuance request," with the California Court of Appeal asserting that the lockdown had made it impossible for him to research and draft an appellate brief. The California Court of Appeal, which had dismissed Hebbe's appeal after he failed to file a supplemental brief by the court's deadline, construed the " continuance request" as a petition for rehearing and denied it on May 5, 1999.
From November 10, 1998 to February 14, 2000, a period of a little more than 15 months, Hebbe spent approximately seven
months in lockdown, without access to the law library and without an opportunity to exercise outdoors. 3 For the period of time totaling eight months in which Hebbe was not on lockdown,4 the CSP allowed him two hours per day, four days per week, during which he could either exercise outdoors or use the law library. These eight hours per week were Hebbe's only opportunity to do either.
On February 14, 2000, Hebbe filed a complaint in the district court under 42...
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