Norbert v. City & Cnty. of S.F.

• Decision Date: 26 August 2021
• Docket Number: 20-15449,Nos. 20-15341,s. 20-15341
• Citation: 10 F.4th 918
• Parties: Kenyon NORBERT; Montrail Brackens; Jose Poot; Marshall Harris ; Armando Carlos ; Michael Brown ; Troy McAllister, on behalf of themselves individually and others similarly situated, as a class and Subclass, Plaintiffs-Appellees/Cross-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant/ Cross-Appellee, and San Francisco Sheriff's Department; Vicki Hennessy, San Francisco Sheriff; Paul Miyamoto, San Francisco Chief Deputy Sheriff; Jason Jackson; McConnell, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.4th 918

Kenyon NORBERT; Montrail Brackens; Jose Poot; Marshall Harris ; Armando Carlos ; Michael Brown ; Troy McAllister, on behalf of themselves individually and others similarly situated, as a class and Subclass, Plaintiffs-Appellees/Cross-Appellants,

v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant/ Cross-Appellee,andSan Francisco Sheriff's Department; Vicki Hennessy, San Francisco Sheriff; Paul Miyamoto, San Francisco Chief Deputy Sheriff; Jason Jackson; McConnell, Defendants.

Nos. 20-15341

20-15449

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2021 San Francisco, California

Filed August 26, 2021

Kaitlyn Murphy (argued), Sabrina M. Berdux, and Margaret W. Baumgartner, Deputy City Attorneys; Meredith B. Osborn, Chief Trial Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellants/Cross-Appellees.

Yolanda Huang (argued), Law Offices of Yolanda Huang, Oakland, California, for Plaintiffs-Appellees/Cross-Appellants.

Before: M. Margaret McKeown, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.

BRESS, Circuit Judge:

We consider in this case a constitutional challenge to certain conditions of confinement at a San Francisco jail. The district court enjoined some of the jail's practices, but we principally address the plaintiff inmates’ appeal of the district court's order insofar as it denied their request for a broader preliminary injunction, through which plaintiffs sought more outdoor recreation time for a greater number of inmates.

We hold that under our precedents and on this record, the district court did not err to the extent it denied the plaintiffs’ request for more expansive preliminary injunctive relief than the district court had already ordered. We further hold that the city's appeal is moot and that we lack jurisdiction to consider plaintiffs’ appeal of the district court's order dismissing certain defendants.

I

A

The plaintiffs are seven inmates at county jails in San Francisco. When this case was filed, plaintiffs were incarcerated at either County Jail 4 ("CJ4") or County Jail 5 ("CJ5"). All plaintiffs are pretrial detainees, except for plaintiff Armando Carlos, who has been convicted and is awaiting sentencing. The defendants are the City and County of San Francisco ("City"), which operates the county jails; the San Francisco County Sheriff's Department; Sheriff Vicki Hennessy; Chief Deputy Sheriff Paul Miyamoto; Captain Jason Jackson; and Captain Kevin McConnell.

Plaintiffs’ putative class action complaint asserted a broad challenge to various conditions of confinement at CJ4 and CJ5. Relevant to plaintiffs’ later request for a preliminary injunction are those claims brought under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments, based on the City's allegedly unconstitutional practice of denying inmates access to outdoor recreation time and direct sunlight exposure. The complaint and request for preliminary injunction discuss the conditions at both CJ4 and CJ5, but the City later permanently closed CJ4 and moved all inmates, including plaintiffs, to CJ5. Accordingly, the parties agree that only the conditions of CJ5 are relevant to this appeal.

CJ5 was opened in 2006. It is a "pod-style" jail that houses male felony inmates, more than 90% of whom are pretrial detainees. It is organized into 16 identical pods, each of which has 24 two-person cells arranged in two tiers. Each cell has a window on the back wall, which looks onto a semi-transparent wall consisting of stripes of clear and frosted panes, which in turn allows into cells natural light from the outside while providing visual access to the outdoors.

The cells in CJ5 all face a central common area, or "day room." Each cell door has clear plastic that allows inmates to see into the day room, but cell doors are kept open during day room time. The day rooms contain phones, a shower, a television, tables, and stools. The district court found that while the day rooms "are not large enough for vigorous exercise," they "do allow some space for some limited exercise."

Connected to each day room is a gym, which is around half the size of a basketball court and is available for inmates to exercise. Each gym has two large grates on the sidewall that allow in fresh air and provide an "occluded sky view" that allows some light to enter the gym. The grates are not covered by glass but are rather open to the ambient air outside. There are 16 gyms total in CJ5.

CJ5 has no secure outdoor space for inmate recreation, so inmate exercise occurs indoors. When CJ5 was built, it replaced the old San Bruno Jail, a "linear-style" jail that did have an outdoor exercise yard. The San Bruno Jail had several security features (like a "cat-walk" and guard tower) that permitted effective oversight of the exercise yard. These features no longer exist in the current facility. The San Bruno Jail also housed a population of inmates who were considered lower security risks than the current population of CJ5, which made it possible for inmates to use the yard with more minimal safety protocols. The old yard has not been used or maintained for over a decade.

Inmates in CJ5 who are not in disciplinary segregation are generally classified into two groups: general population or administrative segregation. General population consists of inmates with no unique needs who may live safely with the other inmates. Administrative segregation is a non-disciplinary classification for inmates who have psychological or medical needs or who pose a safety risk, including due to the risk that other inmates will harm them. Plaintiffs appear to be a mix of general population and administrative segregation inmates. The City represents that although some inmates’ personal circumstances do not typically change, it reviews inmates’ classification status every two weeks to determine if an inmate in administrative segregation can be reassigned to general population.

CJ5 inmates in general population have access to the day room for 4.5 hours on weekdays and 8 hours on weekend days, which is organized around other educational and rehabilitative programming. They also are allowed at least 30 minutes in the gym each day, seven days a week.

Inmates in administrative segregation have less recreation time than those in general population; due to safety concerns, they cannot use the common areas as a group. CJ5 instead provides administrative segregation inmates at least 30 minutes of gym time and 30 minutes of common room time each day, seven days per week, generally in groups of two. However, jail administrators try to create larger groups so that recreation time can be extended. In particular, the district court explained that if the jail could safely accommodate more administrative segregation inmates at once, their exercise time could then increase. Specifically, "[f]or each two inmates added to the total, the exercise time is increased by 30 minutes; e.g. , four inmates in the gym together would get one hour of time, six would get one and a half hours, etc."

B

In June 2019, plaintiffs moved for a preliminary injunction challenging the City's "complete deprivation of access to outdoor recreation and sunshine." They requested that all inmates in CJ4 and CJ5 be given three hours per week of "outdoor recreation time" and one hour per day of out-of-cell time.

In support of their motion, several plaintiffs submitted declarations about physical and emotional ailments that they claimed were attributable to a lack of exposure to direct sunlight over a period of years. The plaintiffs have been incarcerated for varying numbers of years, although the district court found it was unclear why plaintiffs who were pretrial detainees had been detained for long periods of time.

In addition, and as relevant here, plaintiffs submitted a three-page expert report from Dr. Jamie Zeitzer, a Stanford psychiatrist who studies the effects of light deprivation but who did not examine or treat any of the plaintiffs or visit their facilities. In his report, Dr. Zeitzer explained that many biological activities rely on a proper circadian clock, which "is dependent on exposure to regular light-dark cycle." He opined that disruption of the circadian clock can lead to health problems and sleep disruption. But the district court recounted that Dr. Zeitzer later testified at an evidentiary hearing that while indoor lighting " ‘doesn't completely recapitulate what you would get outside’ for health purposes," generally sunlight "filtered through windows" supplies "the proper differential." In addition to taking testimony at the evidentiary hearing, the district court also conducted site visits to both CJ4 and CJ5.

The district court granted in part and denied in part the plaintiffs’ motion for preliminary injunction. It first reviewed the evidentiary record and made several relevant findings about plaintiffs’ medical evidence and the testimony of Dr. Zeitzer. The district court summarized its findings as follows:

[T]he total amount of light a person receives is not the important factor for health; instead, the difference between light at night and light during the day is significant for health. In general, the type of light—whether sunlight or artificial light—is not significant. However, exposure to a smaller amount of sunlight each week suffices to reset the Circadian clock because sunlight is usually very bright. Zeitzer's opinions about the conditions of the inmates at County Jails 4 and 5 are based on general knowledge and not on any specific medical data for the individual inmates, and Zeitzer, who is not a medical doctor, has not treated or examined any of the inmates.

From this, the district court found that the "scientific evidence regarding access to light is inconclusive," in that "[t]he evidence in the record at this point is inconclusive as to whether the lack of access to direct sunlight creates a medical...