Allen v. Sakai

• Decision Date: 15 November 1994
• Docket Number: No. 93-16780,93-16780
• Citation: 40 F.3d 1001
• Parties: John ALLEN; Terry Smith, Plaintiffs-Appellees, v. Ted SAKAI; Harold Falk; John Cabral; Clayton Frank; Adele Fujita; Leonard Gonsalves; Leiann Kaimikaua; Gary Kaplan; Gerald Mendiola; Cinda Sandin; Francis Sequiera; Laurence Shohet; William Oku; Malcolm Lee; Terrence Allen; and Ray Suenaga, in their official and individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1001

40 F.3d 1001

John ALLEN; Terry Smith, Plaintiffs-Appellees, v. Ted SAKAI; Harold Falk; John Cabral; Clayton Frank;

Adele Fujita; Leonard Gonsalves; Leiann Kaimikaua; Gary

Kaplan; Gerald Mendiola; Cinda Sandin; Francis Sequiera;

Laurence Shohet; William Oku; Malcolm Lee; Terrence

Allen; and Ray Suenaga, in their official and individual

capacities, Defendants-Appellants.

No. 93-16780.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 3, 1994.

Decided Nov. 15, 1994.

Steven S. Michaels, Glenn S. Grayson, Deputy Atty. Generals; Honolulu, HI, for defendants-appellants.

John L. Hill; Charles Schurter, Margaret Kivinski, Student Interns, Western State University Legal Clinic, Irvine, CA, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before: FLETCHER, and FERNANDEZ, Circuit Judges, and SEDWICK, ^* District Judge.

FLETCHER, Circuit Judge:

Hawai'i state prison officials, defendants in a 42 U.S.C. Sec. 1983 suit, appeal the denial of summary judgment on their claim of qualified immunity. We affirm.

I

Terry Smith was transferred to the Special Holding Unit ("SHU") ¹ of the Halawa High Security Facility ("HHSF") ² after multiple disciplinary offenses ranging from counterfeiting documents to assault. Smith and others, proceeding pro se, filed a federal civil suit against various prison officials under 42 U.S.C. Sec. 1983. ³ Defendants moved for summary judgment on the grounds that they enjoyed qualified immunity and that the plaintiffs had failed to state a claim for which relief could be granted. The magistrate recommended that the defendants' motion be granted on all of Smith's claims except his claims that defendants deprived him of sufficient outdoor recreation, the use of a pen, and access to photocopies. The district court issued a written order modifying the magistrate's findings but adopting his recommendation to deny defendants' motion for summary judgment as to Smith's remaining three claims. Defendants filed a timely appeal of the district court's order.

II

Smith alleges that, for a six-week period during his longer confinement at SHU, the defendants violated his right to freedom from cruel and unusual punishment by providing him only 45 minutes per week of outdoor exercise. He also alleges that the defendants violated his right to access to the courts by depriving him of the use of a pen and photocopying services. The sole issue on appeal is whether the defendants were entitled as state officials at the summary judgment stage to dismissal on the ground of qualified immunity. Although a denial of summary judgment generally is not a "final order" over which this court has jurisdiction, 28 U.S.C. Sec. 1291, a denial of qualified immunity may be reviewed under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); see generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We review de novo. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).

Defendants are entitled to qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Although a plaintiff must do more than offer conclusory allegations that the defendant violated a clearly established constitutional right, a public official is not entitled to qualified immunity when "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

III

Smith alleges that the defendants violated his right to freedom from cruel and unusual punishment by depriving him of adequate outdoor exercise. Phase I inmates were confined to their cells almost twenty-four hours per day. Although prison officials assert HHSF had a goal of providing Phase I inmates with five hours of access per week to the facility's outdoor recreation area, they admit that during a six-week period Smith was permitted outside of his cell for outdoor recreation only 45 minutes per week.

Before the period in question, several circuits, including this one, had held that deprivation of outdoor exercise could constitute cruel and unusual punishment. Spain v. Procunier, 600 F.2d 189 (9th Cir.1979); Davenport v. DeRobertis, 844 F.2d 1310, 1314-15 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Ruiz v. Estelle, 679 F.2d 1115, 1151-52, vacated in part as moot, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980). This court recognized in Spain that "some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates." Spain, 600 F.2d at 199. We emphasized that the plaintiffs were in long-term incarceration where they were in continuous segregation, generally spending twenty-four hours each day alone in their cells. Id. Under those conditions, deprivation of outdoor exercise constituted cruel and unusual punishment. Id.; see also Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir.1984) (denial of outdoor exercise to inmates assigned to administrative segregation for over one year raised "substantial constitutional question").

Defendants' analogy to LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir.1993), is flawed. In LeMaire we found no constitutional violation from a termination of the plaintiff's exercise privileges "for considerable periods of time" after he attacked two correctional officers with a weapon as he left the yard, then vowed to attack them again. Although Smith was placed in SHU at HHSF because of disciplinary infractions, ⁴ unlike the plaintiff in LeMaire, Smith did not lose his exercise privileges based on a determination by prison officials that he presented a "grave security risk when outside his cell" and that measures were necessary to deter violent behavior separating Smith from the rest of the population in SHU. See LeMaire, 12 F.3d at 1458.

Here, the defendants acknowledge that they have a goal of providing five hours exercise per week and do not suggest that Smith poses particular problems in the exercise yard. Their only excuse is that logistical problems made it difficult to provide adequate exercise. According to the defendants, scheduling an inmate's time in the exercise yard was difficult because, for security reasons, inmates had to be accompanied to the recreation yard by a guard and only one inmate could use the recreation yard at a time. We recognize that the practical difficulties that arise in administering a prison facility from time to time might justify an occasional and brief deprivation of an inmate's opportunity to exercise outside. However, we cannot accept the defendants' excuses as justifying, as a matter of law at the summary judgment stage, the deprivation that took place here. Cf. LeMaire, 12 F.3d at 1458 (upholding denial of outdoor exercise to inmate representing "grave security risk"); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (upholding temporary deprivation of outdoor exercise during "lockdown" initiated during a "genuine emergency"), cert. denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981).

Smith's incarceration in SHU was indefinite and therefore potentially long-term, and under admittedly "harsh" conditions. After Spain and Toussaint, it should have been apparent to defendants that they were required to provide regular outdoor exercise to Smith unless "inclement weather, unusual circumstances, or disciplinary needs made that impossible." ⁵ Spain, 600 F.2d at 199. We affirm the district court's denial of defendants' motion for summary judgment on Smith's Eighth Amendment claim.

IV

Defendants also maintain that they are entitled to summary judgment on the ground of qualified immunity on Smith's claims that they violated his right of access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Smith claims that prison officials denied him access by refusing to photocopy his court papers despite his willingness to pay and by providing only a pencil, rather than a pen. ⁶

Both of Smith's right of access claims arise from his difficulties in filing papers in the state court in connection with his second attempt to obtain post-conviction relief. Smith's first petition for post-conviction relief had been denied. Proceeding pro se, Smith attempted to file a second petition for post-conviction relief. The court returned the petition because Smith did not submit two additional copies. Smith claims that this failure was due to the defendants' refusal to make photocopies for him at a later time. Smith was able to refile the petition pursuant to Hawaii Rules of Penal Procedure, Rule 40, which provides that a petition for post-conviction relief may be filed at any time after judgment. The state trial court ultimately dismissed the petition as meritless.

Smith attempted to appeal the dismissal. However, because his notice of appeal was completed in pencil rather than in "black ink" as required by Rule 3 of the Circuit Court Rules, the court returned it to Smith for correction. Smith did not refile the notice of appeal until the time period for doing so had expired, and the Hawaii Supreme Court ultimately dismissed the appeal because of Smith's failure to file a timely notice of appeal. Smith claims that HHSF's ban on pens caused his failure to use black ink on his first timely presented notice of appeal.

A

At the time defendants allegedly deprived Smith of the use of a pen and access to photocopying, the Supreme Court had clearly established an inmate's right of access to the...