Cardenas-Ornelas v. Johnson

• Court: District Court, D. Nevada
• Decided: September 30, 2024
• Docket: 2:21-cv-00030
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 LUIS CARDENAS-ORNELAS, Case No. 2:21-cv-00030-ART-VCF 4 Plaintiff, ORDER GRANTING IN PART AND 5 v. DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 6 WICKHAM, et al.,

7 Defendants.

8 9 Pro se Plaintiff Luis Cardenas-Ornelas (“Cardenas-Ornelas”) brings this 10 action under 42 U.S.C. § 1983 against Defendants Jessie Brightwell 11 (“Brightwell”), Charles Daniels (“Daniels”), Calvin Johnson (“Warden Johnson”), 12 Timothy Johnson (“Officer Johnson”), Robert Owens (“Owens”), Gary Piccinini 13 (“Piccinini”), Manuel Portillo (“Portillo”), Timothy Struck (“Struck”), and Harold 14 Wickham (“Wickham”) (collectively, “Defendants”) for alleged constitutional 15 violations that occurred while Plaintiff was quarantined at High Desert State 16 Prison (“HDSP”) during the Covid-19 pandemic. 17 Before the Court is Defendants’ motion for summary judgment (ECF No. 18 84), Plaintiff’s response (ECF No. 87), and Defendants’ reply (ECF No. 93). For the 19 reasons stated below, the Court grants in part and denies in part Defendants’ 20 motion for summary judgment. 21 I. BACKGROUND 22 Cardenas-Ornelas is an inmate in custody of the Nevada Department of 23 Corrections (“NDOC”). (ECF No. No. 1-1.) The events giving rise to this action took 24 place in 2020 while Cardenas-Ornelas was housed at High Desert State Prison 25 (“HDSP”). (Id.) 26 In January 2021, Cardenas-Ornelas filed the complaint in this case, 1 27 1 asserting six counts under 42 U.S.C. § 1983 and seeking injunctive relief, 2 declaratory relief, and monetary damages. (ECF No. 1-1.) After screening the 3 complaint, the Court allowed Cardenas-Ornelas to proceed with two claims under 4 Count Two; one claim under Count Four; one claim under Count Five; and two 5 claims under Count Six. (ECF No. 12.) 6 Under Count Two, the Court allowed Plaintiff to proceed with a claim that 7 Defendants Portillo, Owens, Warden Johnson, Struck, and Piccinini violated 8 Plaintiff’s Eighth Amendment and the Nevada constitution’s prohibition against 9 cruel and unusual punishment by denying Plaintiff yard time and outdoor 10 exercise (2A); and a claim that Defendants Portillo, Owens, Warden Johnson, 11 Struck, and Piccinini violated the federal and state constitutional right to equal 12 protection by providing yard time to inmates other than Plaintiff (2B). Under 13 Count Four, the Court allowed Plaintiff to proceed with his claim that that 14 Defendants Daniels, Warden Johnson, Piccinini, and Struck violated the Eighth 15 Amendment by requiring officers to come to work after they had reported coming 16 into contact with people who had Covid-19. Under Count Five, the Court allowed 17 Plaintiff to proceed with his claim that Defendant Officer Johnson violated the 18 First Amendment by interfering with mail. Under Count Six, the Court allowed 19 Plaintiff to proceed with (6A) a claim that Daniels, Wickham, Warden Johnson, 20 Piccini, Struck, Portillo, Brightwell and Owens violated the First Amendment and 21 Nevada constitution by denying all phone calls; and (6B) a claim that Defendant 22 Warden Johnson violated Plaintiff’s equal protection rights by denying him phone 23 calls but allowing other inmates to make phone calls. 24 In October 2023, Defendants filed a motion for summary judgment, seeking 25 to dismiss Plaintiff’s claims as meritless; barred because of failure to exhaust 26 administrative remedies; and barred by qualified immunity. (ECF No. 84.) Plaintiff 2 27 1 filed a response in opposition to the motion for summary judgment. (ECF No. 87.) 2 Defendants filed a reply. (ECF No. 93.) 3 II. LEGAL STANDARD 4 A. SUMMARY JUDGMENT 5 A party is entitled to summary judgment when “the movant shows that 6 there is no genuine issue as to any material fact and the movant is entitled to 7 judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp v. 8 Cartrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)). An issue is 9 “genuine” if the evidence would permit a reasonable jury to return a verdict for 10 the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 11 A fact is “material” if it could affect the outcome of the case. Id. at 248. Where 12 reasonable minds could differ on the material facts at issue, summary judgment 13 is not appropriate. Anderson, 477 U.S. at 250. 14 In considering a motion for summary judgment, all reasonable inferences 15 are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 16 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach 17 & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). However, if the evidence of 18 the nonmoving party “is not significantly probative, summary judgment may be 19 granted.” Anderson, 477 U.S. at 249-250 (citations omitted). The court’s function 20 is not to weigh the evidence and determine the truth or to make credibility 21 determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249. 22 In deciding a motion for summary judgment, the court applies a burden- 23 shifting analysis. “When the party moving for summary judgment would bear the 24 burden of proof at trial, ‘it must come forward with evidence which would entitle 25 it to a directed verdict if the evidence went uncontroverted at trial.’ . . . In such a 26 case, the moving party has the initial burden of establishing the absence of a 3 27 1 genuine [dispute] of fact on each issue material to its case.” C.A.R. Transp. 2 Brokerage Co. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal 3 citations omitted). When the nonmoving party bears the burden of proving the 4 claim or defense, the moving party can meet its burden in two ways: (1) by 5 presenting evidence to negate an essential element of the nonmoving party’s case; 6 or (2) by demonstrating that the nonmoving party cannot establish an element 7 essential to that party’s case on which that party will have the burden of proof at 8 trial. See Celotex, 477 U.S. at 323-25. 9 If the moving party satisfies its initial burden, the burden shifts to the 10 nonmoving party to establish that a genuine dispute exists as to a material fact. 11 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 12 The opposing party need not establish a genuine dispute of material fact 13 conclusively in its favor. It is sufficient that “the claimed factual dispute be shown 14 to require a jury or judge to resolve the parties’ differing versions of truth at trial.” 15 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 16 1987) (quotation marks and citation omitted). The nonmoving party cannot avoid 17 summary judgment by relying solely on conclusory allegations that are 18 unsupported by factual data. Matsushita, 475 U.S. at 587. Instead, they must go 19 beyond the assertions and allegations of the pleadings and set forth specific facts 20 by producing competent evidence that shows a genuine dispute of material fact 21 for trial. Celotex, 477 U.S. at 324. 22 III. COUNT 2A: DENIAL OF YARD TIME 23 A. FACTS 24 On March 18, 2020, Cardenas-Ornelas’s Unit—Unit 9—was placed on 25 quarantine because a canteen staff member tested positive for Covid-19, and 26 inmate canteen workers assigned to Unit 9 had been in close contact with them. 4 27 1 (ECF Nos. 84 at 5, 84-1 at 75, 229.) Cardenas-Ornelas claims that this decision 2 was made by Defendants Portillo, Owens, Warden Johnson, Struck, and 3 Piccinini. (ECF Nos. 1-1 at 12, 12 at 11.) This quarantine lasted until April 27, 4 2020, when Unit 9 inmates were permitted to work but denied yard time. (ECF 5 Nos. 1-1 at 12, 84-1 at 75, 87 at 3.) On May 19, 2020, Unit 9 was placed on 6 lockdown again after one inmate tested positive for Covid-19. (ECF Nos. 84 at 5, 7 84-1 at 229.) On May 26, 2020, four inmates tested positive for Covid-19, and all 8 HDSP inmates were isolated for a minimum of twenty days. (ECF No. 84-1 at 229- 9 30.) 10 During this time, Cardenas-Ornelas claims that he was denied all yard time 11 but required to go to work, where there were at least 130 inmates working 12 together in a warehouse and where social distancing was impossible. (ECF No. 1- 13 1 at 12.) Cardenas-Ornelas was paid for work at the Prison Industries card room 14 and hanger room at HDSP for most weeks from June 1, 2020 to July 30, 2021. 15 (ECF No. 87-1 at 43-46.) Cardenas-Ornelas claims that during this time he had 16 multiple conversations with defendants Portillo and Struck regarding the issue 17 of being sent to work while being denied yard time. (ECF No. 1-1 at 12.) 18 Defendants said that the entire lockdown and ban on yard time was due to Covid- 19 19 but did not explain why inmates were denied outdoor exercise while being 20 allowed to work indoors. (Id.) Portillo and Struck do not deny or admit having 21 these conversations. (See ECF No. 84-1 at 235-36, 255-56.) By June 23, 2020, 22 inmates in other units were permitted to resume yard time, but Unit 9 remained 23 in quarantine. (ECF No. 84-1 at 230.) 24 On June 12, 2020, Cardenas-Ornelas filed an informal grievance 25 complaining about having been “confined to [his] cell for 23 to 23 ½ hours a day 26 except for . . . work which is for 8 to 9 hours in a crowded warehouse with about 5 27 1 130 other [i]nmates.” (ECF No. 84-1 at 74.) On July 27, Struck denied that 2 grievance, citing health and safety reasons. (Id.) On August 12, Cardenas-Ornelas 3 filed a first level grievance, reiterating his original complaints. (Id.) On August 20, 4 Warden Johnson denied that grievance, stating that “NDOC has not placed any 5 institution on lock-down but has quarantined in an effort to adhere to important 6 Center for Disease Control and prevention guidelines.” (Id. at 75) In his response, 7 Warden Johson explained that [a]fter receiving medical clearance, Unit 9 inmate 8 workers received authorization to return to work as early as April 27, 2020.” (Id.) 9 Warden Johnson did not explain why the return to work was not accompanied 10 by a return to yard time. (See id.; ECF No. 1-1 at 14.) Cardenas-Ornelas filed a 11 second level grievance, which Wickham denied, finding that his grievance had 12 been “answered correctly at the informal and first levels.” (ECF No. 84-1 at 76.) 13 Cardenas-Ornelas claims that between March 18, 2020 and July 27, 2021, 14 he has been denied all outdoor exercise except for about 20 hours. (ECF No. 87 15 at 3.) Cardenas-Ornelas claims that during this time, Defendants permitted every 16 other unit within NDOC to continue receiving yard time. (ECF No. 1-1 at 15.) 17 Defendants challenge these claims but do not offer evidence regarding Unit 9’s 18 access to yard time after June 2020. (See ECF No. 84 at 17, 6.) 19 B. EIGHTH AMENDMENT 20 “It is undisputed that the treatment a prisoner receives in prison and the 21 conditions under which [the prisoner] is confined are subject to scrutiny under 22 the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also 23 Farmer v. Brennan, 511 U.S. 825, 832 (1994). To successfully challenge the 24 conditions of confinement under the Eighth Amendment, a plaintiff must meet 25 both an objective and subjective test. Johnson v. Lewis, 217 F.3d 726, 731 (9th 26 Cir. 2000). 6 27 1 The Ninth Circuit has “recognized that exercise is one of the basic human 2 necessities protected by the Eighth Amendment.” Norbert v. City & County of San 3 Francisco, 10 F.4th 918, 928–29 (9th Cir. 2021) (citation and internal quotation 4 marks omitted). “Deprivation of outdoor exercise violates the Eighth Amendment 5 rights of inmates confined to continuous and long-term segregation.” Keenan v. 6 Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Spain v. Procunier, 600 F.2d 189, 7 199 (9th Cir. 1979)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Thomas 8 v. Ponder, 611 F.3d 1144, 1151–52 (9th Cir. 2010); Richardson v. Runnels, 594 9 F.3d 666, 672 (9th Cir. 2010); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 10 2005); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc); Allen v. 11 Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995); Allen v. City of Honolulu, 39 F.3d 936, 12 938–39 (9th Cir. 1994); LeMaire v. Maass, 12 F.3d 1444, 1457–58 (9th Cir. 1993); 13 Toussaint v. Yockey, 722 F.2d 1490, 1492–93 (9th Cir. 1984). 14 The prolonged deprivation of outdoor exercise to inmates confined to 15 continuous and long-term segregation meets the objective prong of the Eighth 16 Amendment. Keenan, 83 F.3d at 1089; LeMaire, 12 F.3d at 1458 (“the long-term 17 deprivation of outside exercise for inmates is unconstitutional”). By contrast, “a 18 temporary denial of outdoor exercise with no medical effects is not a substantial 19 deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (the denial of 20 exercise for 21 days was not a violation of the Eighth Amendment). In Spain v. 21 Procunier, the Ninth Circuit held that confinement of prisoners who were assigned 22 to the “adjustment center” “for a period of [four] years without opportunity to go 23 outside except for occasional court appearances, attorney interviews, and 24 hospital appointments” was cruel and unusual punishment. Spain, 600 F.2d at 25 192, 200. In Toussaint v. Yockey, the Ninth Circuit upheld a preliminary 26 injunction requiring the state to provide “outdoor exercise” where prisoners, who 7 27 1 had been held in administrative segregation for over a year, were “confined to 2 their cells for as much as 23 ½ hours a day.” Toussaint, 722 F.2d at 1492-3. 3 Prison officials may restrict outdoor exercise on the basis of weather, unusual 4 circumstances, or disciplinary needs. See Spain, 600 F.2d at 199. However, “[t]he 5 cost or inconvenience of providing adequate [exercise] facilities is not a defense 6 to the imposition of a cruel punishment.” Id. at 200. 7 As to the subjective prong of the Eighth Amendment analysis, prisoners 8 must establish prison officials’ “deliberate indifference” to unconstitutional 9 conditions of confinement to establish an Eighth Amendment violation. See 10 Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303. To demonstrate that a prison 11 official was deliberately indifferent to a serious threat to an inmate’s health and 12 safety, the prisoner must show that the “the official [knew] of and disregard[ed] 13 an excessive risk to inmate . . . safety; the official must both be aware of facts 14 from which the inference could be drawn that a substantial risk of serious harm 15 exists, and [the official] must also draw the inference. Farmer, 511 U.S. at 846. 16 C. STATE CONSTITUTIONAL CLAIMS 17 The Court allowed Cardenas-Ornelas to proceed with associated claims 18 under the Nevada Constitution because courts apply the same legal standards to 19 the cruel and unusual punishment provision in Article 1, Section 6 of the Nevada 20 Constitution as they do to the Eighth Amendment. (ECF No. 12 at 15.) 21 Defendants argue that this Court lacks jurisdiction to consider Cardenas- 22 Ornelas’s state law claims because they are barred by sovereign immunity under 23 the Eleventh Amendment. (ECF No. 84 at 8.) Defendants explain that Nevada has 24 conditioned its waiver of sovereign immunity on meeting the requirements of NRS 25 41.031-41.0337, which require that that the plaintiff “name the state as a party 26 to any state tort claims” against state employees and entities. (Id.); Craig v. 8 27 1 Donnelly, 135 Nev. 37, 38 (Nev. App. 2019). Plaintiff’s damages claim arising out 2 of the Nevada Constitution, however, may proceed against state employees in 3 their personal capacities. Mack v. Williams, 522 P.3d 434, 448 (2022) (rejecting 4 defendants’ assertion that state tort law provides meaningful redress for 5 invasions of the constitutional rights at issue). 6 In Mack, the Nevada Supreme Court held that a plaintiff may bring a 7 private action against state actors for damages under Article 1, Section 18 of the 8 Nevada Constitution (which is substantively identical to the Fourth Amendment 9 of the U.S. Constitution). Mack, 522 P.3d at 442, 451. In reaching that 10 conclusion, the court “recognize[d] that it is not necessary for the Nevada 11 Constitution to expressly confer such a remedy, nor for the Nevada Legislature to 12 expressly authorize one, because the search-and-seizure rights are self-executing 13 limitations on, and thus inherently enforceable against, arbitrary abuse of 14 government power.” Id. at 451. The court did not address whether a private right 15 of action exists under other provisions of the Nevada Constitution. See id. at 441. 16 However, the court adopted a “framework for answering whether a self-executing 17 provision of the Nevada Constitution is enforceable through a damages remedy” 18 based on California’s framework for the same inquiry, as set out in Katzberg v. 19 Regents of Univ. of Cal., 58 P.3d 339 (2002). Id. at 444-45, 451. This framework 20 involves asking first “whether the language and history of the at-issue 21 constitutional provision establishes an affirmative indication of intent to provide 22 or withhold the requested remedy.” Id. at 451. If it does not, the court then 23 considers “whether the several factors set forth in § 874A of the Restatement 24 (Second) of Torts favor the requested remedy.” Id. If consideration of those factors 25 favors a damages action, the court finally considers “whether any special factors 26 counsel hesitation against recognition.” Id. at 452. 9 27 1 Nevada courts do not appear to have undertaken an analysis of Article 1, 2 Section 6 of the Nevada Constitution under this framework yet. In the absence of 3 a controlling state Supreme Court decision, a federal court applying state law 4 must apply the law as it believes the state Supreme Court would apply it. 5 Gravquick A/S v. Trimble Navigation Int'l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) 6 (citing Astaire v. Best Film & Video Crop, 116 F.3d 1297, 1300 (9th Cir.), amended 7 by 136 F.3d 1208 (9th Cir. 1997)). “In other words, a federal district court . . . 8 must predict how the Nevada Supreme Court would decide unresolved issues of 9 state law, using statutes and decisions from other jurisdictions as interpretive 10 aids.” Mirch v. Frank, 295 F. Supp. 2d 1180, 1183 (D. Nev. 2003). 11 Under the first step of Katzberg, the Court finds no language or history that 12 establishing an affirmative indication of intent to provide or withhold a damages 13 action. Article 1, Section 6 of the Nevada Constitution provides in its entirety: 14 “Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel 15 or unusual punishments be inflicted, nor shall witnesses be unreasonably 16 detained.” Nev. Const. art. I, § 6. Like Section 18, this language discloses no 17 intent with regard to a right of action damages. Mack, 522 P.3d at 447. And like 18 Section 18, this provision was ratified in 1864 and has not been amended since. 19 Under the second step, the Court considers several factors to determine 20 whether a damages remedy is “in furtherance of the purpose of the provision” and 21 “needed to assure the effectiveness of the provision.” Mack, 522 P.3d at 447–48. 22 To answer this question, the Court considers “(1) the nature of the legislative 23 provision, (2) the adequacy of existing remedies, (3) the extent to which a 24 [constitutional] tort action supplements or interferes with existing remedies and 25 enforcement, (4) the significance of the purpose of the provision, (5) the extent of 26 the change in tort law and (6) the burden on the judiciary.” Id. at 448 (cleaned 10 27 1 up). 2 These factors favor recognizing an implied right of action for damages. 3 Section 6 is, like Section 18, a significant Constitutional right. Existing 4 alternative remedies like state tort law serve “different interests” than 5 constitutional guarantees. Id. at 448 (citing Bivens v. Six Unknown Named Agents 6 of Fed. Bureau of Narcotics, 403 U.S. 388, 394–95 (1971)). Tort law establishes 7 generally duties between members of the community, while constitutional 8 remedies provide higher standards, because agents of the state must “not only . 9 . . respect the rights of other citizens” but also “protect and defend those rights.” 10 Id. (citation omitted). Rights of action for Section 6 do not interfere with existing 11 remedies and enforcement, and they allow for development of the Nevada 12 Constitution’s jurisprudence regarding prisoners’ rights. Finally, recognizing a 13 damages action will not place an additional burden on the judiciary because 14 federal courts apply the same legal standards to the cruel and unusual 15 punishment provision in Article 1, Section 6 of the Nevada Constitution as they 16 do to the cruel and unusual provision of the Eighth Amendment to the U.S. 17 Constitution and routinely allow such claims to proceed. Vickers v. Godecki, No. 18 2:20-CV-01401-GMN-NJK, 2023 WL 2435110, at *2 (D. Nev. Mar. 8, 2023); 19 Meeks v. Nevada Dep't of Corr., No. 3:18-CV-00431-MMD-WGC, 2020 WL 20 8084979, at *19 (D. Nev. Nov. 10, 2020) (collecting cases), report and 21 recommendation adopted sub nom. Meeks v. Bacca, No. 3:18-CV-00431-MMD- 22 WGC, 2021 WL 53619 (D. Nev. Jan. 6, 2021). 23 Finally, the Court sees no special factors that would militate against finding 24 an implied right of action for damages under Section 6 where one already exists 25 for Section 18. See Mack, 522 P.3d at 449-450. 26 Mack does not address claims for injunctive and declaratory relief and the 11 27 1 Court declines to reach that issue. Id. at 441. Thus, Cardenas-Ornelas’s claims 2 for damages against individual officers in this case may proceed. 3 D. ANALYSIS 4 In their motion for summary judgment, Defendants argue that Cardenas- 5 Ornelas’s claim should fail as a matter of law because he cannot establish either 6 the objective or subjective prong of the Eighth Amendment test. (ECF No. 84 at 7 18.) 8 First, Defendants argue that Cardenas-Ornelas “has not and cannot 9 establish that a lack of outdoor exercise caused an objectively serious risk of 10 harm.” (ECF No. 84 at 16.) However, Ninth circuit caselaw clearly establishes that 11 denial of outdoor exercise for a prolonged period of time meets the objective prong 12 of the Eighth Amendment analysis. Keenan, 83 F.3d at 1089; LeMaire, 12 F.3d 13 at 1458. 14 Defendants rely on Norbert v. City and County of San Francisco to argue 15 that, because Cardenas-Ornelas “was able to exercise in his cell,” he cannot 16 establish objective harm. (ECF No. 84 at 16.) In Norbert, the Ninth Circuit 17 explained that “the constitutionality of conditions for inmate exercise must be 18 evaluated based on the full extent of the available recreational opportunities.” 19 Norbert, 10 F.4th at 930. In that case, administrative segregation inmates 20 received “at least one hour of recreation time seven days a week” between “the 21 day room and gym,” and general population inmates were allowed “at least 4.5 22 hours of total recreation time each day during the week, and at least 8 hours on 23 weekends.” Id. at 934. However, the facts of this case are more analogous to those 24 in Toussaint, where inmates were confined to their cells for 23 hours a day for 25 over one year. Toussaint, 722 F.2d at 1492-93. Defendants do not point to any 26 recreation opportunities that Cardenas-Ornelas was given outside his cell, and 12 27 1 do not challenge Cardenas-Ornelas’s claim that he was “confined to [his] cell for 2 23 to 23 ½ hours a day” except when he went to work. (ECF Nos. 84-1 at 74, 1- 3 1 at 13.) 4 Defendants also fail to provide evidence to counter Cardenas-Ornelas’s 5 claim that “except for about 2 hours from when the lockdown began on March 6 18th, 2020 up to when the defendants began giving Plaintiff 3 hours of yard a 7 week on July 27th, 2021,” Plaintiff was “denied all outdoor exercise.” (ECF No. 87 8 at 3.) Defendants argue that it is “absolutely not the case” that Cardenas-Ornelas 9 remained on lockdown for the seven months between May 20, 2020, until 10 December 30, 2020,1 but have not provided the Court with evidence of what 11 occurred after June 2020. (See ECF Nos. 84 at 2-6, 84-1 at 230.) The facts, viewed 12 in the light most favorable to Plaintiff, show that Cardenas-Ornelas was denied 13 all outdoor exercise for over a year, which meets the objective test of the Eighth 14 Amendment analysis. 15 Defendants next argue that Cardenas-Ornelas’s claim should fail because 16 he “cannot show that Defendants knew that the lack of outdoor exercise caused 17 a serious risk of harm.” (ECF No. 84 at 16.) Defendants argue that the Covid-19 18 pandemic was a “life and death emergency” and that the lockdown was 19

20 21 22 1 Defendants ask the Court to consider only the time period from March 2020 to December 2020, when Cardenas-Ornelas filed his initial complaint in this case, citing to a private antitrust case 23 that precluded damages arising from acts committed after the filing of the amended complaint. (ECF No. 93 at 13 n.2 (citing Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th Cir. 2006) (quotations omitted) (emphasis added).) Defendants fail to cite any authority that this 24 rule applies in a § 1983 context and the Ninth Circuit has long recognized that a civil rights plaintiff “who establishes liability for deprivations of constitutional rights actionable under 42 25 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations.” See Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) 26 (emphasis added). 13 27 1 “reasonably imposed at HDSP to protect inmates from Covid-19.” (Id. at 17.) The 2 Ninth Circuit has held that in cases of genuine emergency, the temporary 3 deprivation of outdoor exercise may not violate the Eighth Amendment. Hayward 4 v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980). In that case, the temporary 5 lockdown was imposed after two men were killed in separate acts of gang 6 violence—in a year where twelve people had been killed—and “yard exercise was 7 permitted within a month after the lockdown began, and the normal exercise 8 routine was restored [within six months.]” Id. Here, Defendants have offered no 9 evidence explaining when and how yard exercise was restored for inmates, 10 including Cardenas-Ornelas, in Unit 9. 11 Defendants rely on Norwood v. Vance, a case which involved a prisoner who 12 was denied outdoor exercise “during four separate extended lockdowns over the 13 course of two years.” Norwood v. Vance, 591 F.3d 1062, 1065 (9th Cir. 2010). 14 Each lockdown—which lasted between two and four and a half months—was 15 initiated after “serious inmate assaults on staff,” and the prisoners were confined 16 to their cells, with all normal programs suspended, “while officers investigated 17 the violence.” Id. Because the record in that case “[made] clear that a great deal 18 of violence took place during outdoor exercise,” the court found that “officials’ 19 judgment that there was a greater risk of harm from allowing outdoor exercise 20 was certainly reasonable.” Id. at 1070. 21 Here, unlike in Norwood, Defendants have failed to provide evidence to 22 support a reasonable conclusion that there was a greater risk of harm from 23 allowing outdoor exercise than indoor activities such as work. In their motion for 24 summary judgment, Defendants almost entirely fail to respond to Cardenas- 25 Ornelas’s claims that, for much of the time that he was quarantined, Cardenas- 26 Ornelas was required to go to work, where there were at least 130 inmates 14 27 1 working together in a warehouse, and where social distancing was impossible. 2 (ECF No. 1-1 at 12.) In their reply to Plaintiff’s opposition, Defendants address 3 this argument with an additional declaration by Jeremy Bean, HDSP Warden. 4 (ECF No. 93-1 at 2-4.) Defendants claim that “prison officials balanced the risks 5 of the COVID-19 pandemic against the privileges that had previously been 6 provided to inmates and determined that while yard time would not comport with 7 COVID-19 protocols, inmates could still be afforded the opportunity to work in 8 Prison Industries and earn wages and good time credits.” (ECF No. 93 at 14.) 9 Defendants argue that “[t]he level of supervision and affirmative measures to 10 protect inmates from COVID-19 were simply not available in the yard, while 11 Prison Industries had alternative funding to ensure adequate supervision, and a 12 space where COVID-19 protocols could be enforced and where remedial 13 measures, such as a fogger device used to kill COVID-19, could be implemented.” 14 (Id.) 15 Defendants’ arguments regarding the cost of providing yard time fail to 16 provide adequate justification because the Ninth Circuit has explained that “[t]he 17 cost or inconvenience of providing adequate [exercise] facilities is not a defense 18 to the imposition of a cruel punishment.” Spain, 600 F.2d at 200. While these 19 arguments provide some justification for the disparity between yard time and 20 work, they do not establish the absence of a genuine dispute of material fact. A 21 rational finder of fact could find that that this after-the-fact justification for the 22 disparity between access to the yard and access to work was pretextual. 23 Because under these facts, viewed in the light most favorable to Cardenas- 24 Ornelas, a rational finder of fact could find that Defendants were deliberately 25 indifferent by intentionally and unnecessarily denying Cardenas-Ornelas outdoor 26 exercise, summary judgment is inappropriate as to Plaintiff’s Eighth Amendment 15 27 1 and state constitutional claims on the basis of denial of yard time. 2 E. PERSONAL PARTICIPATION 3 Defendants also argue that Cardenas-Ornelas cannot establish that 4 Defendants personally participated in any constitutional violation because each 5 Defendant was “merely following the policies and procedures set forth by the 6 NDOC Medical Director.” (ECF No. 84 at 22.) 7 A defendant is liable under § 1983 “only upon a showing of personal 8 participation by the defendant.” Farmer, 511 U.S. at 844. “A supervisor is only 9 liable for the constitutional violations of . . . subordinates if the supervisor 10 participated in or directed the violations, or knew of the violations and failed to 11 act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations 12 omitted). “The requisite causal connection can be established . . . by setting in 13 motion a series of acts by others or by knowingly refus[ing] to terminate a series 14 of acts by others, which [the supervisor] knew or reasonably should have known 15 would cause others to inflict a constitutional injury.” Rodriguez, 891 F.3d at 798 16 (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). A showing that a 17 supervisor acted, or failed to act, in a manner that was deliberately indifferent to 18 an inmate’s Eighth Amendment rights is sufficient to demonstrate the 19 involvement—and the liability—of that supervisor. Starr, 652 F.3d at 1206–07. 20 The Ninth Circuit has held that a defendant can personally participate in 21 a violation by denying a grievance. Colwell v. Bannister, 763 F.3d 1060, 1070 (9th 22 Cir. 2014); see Jackson v. Nevada, No. 216CV00995APGNJK, 2019 WL 6499106, 23 at *7 (D. Nev. Dec. 3, 2019), aff'd, No. 20-15007, 2022 WL 16756349 (9th Cir. 24 Nov. 8, 2022). In Snow v. McDaniel, the Ninth Circuit denied summary judgment 25 to a prison warden and associate warden because they were aware, through the 26 grievance process and other documentation, that the prisoner needed surgery 16 27 1 and they “failed to act to prevent future harm.” Snow v. McDaniel, 681 F.3d 978, 2 989 (9th Cir. 2012), overruled on other grounds in Peralta v. Dillard, 744 F.3d 3 1076, 1083-84 (9th Cir. 2014). 4 Defendants point to Peralta v. Dillard, a case which involved a claim of 5 deliberate indifference to serious medical needs against a prison’s chief dental 6 officer, chief medical officer, and staff dentist. Peralta v. Dillard, 744 F.3d 1076, 7 1081 (9th Cir. 2014). The Ninth Circuit found that neither the chief dental officer 8 nor the chief medical officer was deliberately indifferent because both were 9 administrators who signed appeals and did not personally participate in the 10 prisoner’s treatment. Id. at 1086-87. Here, Defendants argue that they “are not 11 doctors and therefore were not required to second guess the Medical Director’s 12 judgment on how best to respond to the Covid-19 pandemic.” (ECF No. 84 at 22.) 13 However, the administrators in Peralta were not officers or wardens 14 interacting with the prisoners—as is the case here—but supervisors who were 15 not aware of the prisoner’s complaints, who had not directly interacted with the 16 prisoner, and whose only involvement was the signing of second-level appeals. 17 Peralta, 744 F.3d at 1086-87. The “medical judgments” discussed in Peralta were 18 made not by a high-level medical officer, but by a staff dentist who treated the 19 prisoner. Id. at 1086. Furthermore, Peralta did not involve a motion for summary 20 judgment, but a motion for judgment as a matter of law after a jury trial. Id. at 21 1085. The court explained that, because the jury had found that the staff dentist 22 was not liable, “the jury essentially resolved the question of [the chief dental 23 officer and the chief medical officer’s] liability as well.” Id. at 1088. If Cardenas- 24 Ornelas were bringing this lawsuit against NDOC’s chief medical officer, and had 25 already had a jury trial, Peralta might be applicable, but on the facts and 26 procedural posture here, it is not. Finally, Peralta does not change the holding in 17 27 1 Snow that, while a supervisor cannot be held vicariously liable, a supervisor can 2 be liable as a participant based on knowledge and failure to act. Snow, 681 F.3d 3 at 989. 4 i. Warden Johnson 5 Defendant Warden Johnson was warden of HDSP in 2020. (ECF No. 84-1 6 at 227.) In this role, he was “responsible for overseeing all aspects of HDSP, 7 including overseeing NDOC policies, practices and procedures implemented at 8 HDSP” and “overseeing the implementation of all medical protocols issued by the 9 NDOC Medical Director[.]” (Id.) Cardenas-Ornelas claims that Warden Johnson 10 was among the individuals who decided to quarantine Unit 9 in March 2020. 11 (ECF Nos. 1-1 at 12, 12 at 11.) However, this occurred before Warden Johnson 12 started his employment as warden as HDSP. (ECF No. 84-1 at 227, 229.) Warden 13 Johnson states that lockdown decisions were made “for the protection [of] 14 inmates and staff alike,” but does not address the discrepancy between denial of 15 yard time and authorization to work. (Id. at 229.) Warden Johnson’s declaration 16 does not include any statements regarding quarantines imposed after June 2020. 17 (See id. at 227-230.) On August 20, 2020, Warden Johnson denied Cardenas- 18 Ornelas’s first level grievance regarding denial of yard time. (ECF No. 84-1 at 75, 19 229.) In that response, Warden Johnson admits that “Unit 9 inmate workers 20 received authorization to return to work as early as April 27, 2020.” (ECF No. 84- 21 1 at 75.) 22 Warden Johnson personally reviewed and denied Cardenas-Ornelas’s first 23 level grievance, and the evidence suggests that Warden Johnson had authority to 24 resolve the underlying issue. While Warden Johnson may not have been 25 responsible for the first quarantine decision in March 2020, he had authority in 26 overseeing and implementing the Covid-19 regulations. (ECF No. 84-1 at 227.) 18 27 1 Therefore, Warden Johnson is an appropriate defendant and summary judgment 2 in his favor on this count is denied. 3 ii. Struck 4 In 2020, Defendant Struck was a correctional sergeant assigned to the 5 visiting department at HDSP. (ECF No. 84-1 at 260.) In this role, his 6 responsibilities included “supervision of staff under [his] command, supervision, 7 custody, security, discipline, safety offenders, the security of safety and staff, and 8 the security and safety of the institution to which [he is] assigned.” (Id.) Cardenas- 9 Ornelas claims that Struck was among the individuals who decided to quarantine 10 Unit 9 in March 2020. (ECF Nos. 1-1 at 12, 12 at 11.) Struck states that the 11 Covid-19 protocols were communicated to him through the chain of command 12 and that as correctional sergeant, he was required to and followed the protocols 13 as directed. (ECF No. 84-1 at 235.) In July 2020, Struck responded to Cardenas- 14 Ornelas’s informal grievance regarding denial of yard time on health and safety 15 grounds. (ECF No. 74 at 262.) Struck claims that in 2020, he “never denied 16 Cardenas-Ornelas’s access to scheduled yard time, except when required by the 17 established Covid-19 protocols[.]” (ECF No. 84-1 at 236.) 18 Because Cardenas-Ornelas has not provided sufficient evidence showing 19 that Struck had authority over implementing the Covid-19 protocols, Struck is 20 entitled to summary judgment on this count. 21 iii. Portillo 22 In 2020, Defendant Portillo was a correctional lieutenant at HDSP, whose 23 responsibilities included “supervision of staff under [his] command, supervision, 24 custody, security, discipline, safety offenders, the security and safety of staff, and 25 the security and safety of the institution to which [he is] assigned.” (ECF No. 84- 26 1 at 255.) Cardenas-Ornelas claims that Portillo was responsible for deciding to 19 27 1 quarantine Unit 9 on March 18, 2020 and that Cardenas-Ornelas had multiple 2 conversations with Portillo regarding the issue of denial of yard time. (ECF Nos. 3 1-1 at 12, 12 at 11.) Portillo’s declaration does not admit or deny these 4 conversations. (See ECF No. 84-1 at 255-56.) In his declaration, Portillo explains 5 that “[b]eginning in March 2020, the NDOC Medical Director established specific 6 protocols for addressing COVID-19, which were implemented by the NDOC 7 Director, Chief of Nursing, and the warden at HDSP.” (ECF No. 84-1 at 255.) 8 These protocols were “communicated to Portillo through the chain of command, 9 town hall meetings, memos, and emails” and, as correctional lieutenant, Portillo 10 was required to and followed these protocols as directed. (Id.) Portillo states that 11 in 2020, he “never denied Cardenas-Ornelas’s access to scheduled yard time, 12 except when required by the established Covid-19 protocols.” (ECF No. 84-1 at 13 255.) 14 Because Cardenas-Ornelas has not provided evidence showing that Portillo 15 had authority over implementing the Covid-19 protocols or responded to any of 16 the relevant grievances, Portillo is entitled to summary judgment on this count. 17 iv. Owens 18 In 2020, Defendant Owens was a lieutenant at HDSP, whose 19 responsibilities included “supervision of staff under [his] command, supervision, 20 custody, security, discipline, safety offenders, the security and safety of staff, and 21 the security and safety of the institution[.]” (ECF No. 84-1 at 261.) Cardenas- 22 Ornelas claims that he had multiple conversations with Owens regarding the 23 issue of denial of yard time. (ECF Nos. 1-1 at 12, 12 at 11.) Owens does not admit 24 or deny these conversations. (See ECF No. 84-1 at 261-62.) In his declaration, 25 Owens states that the Covid-19 protocols were communicated to him through the 26 chain of command and that as lieutenant, he was required to and followed those 20 27 1 protocols as directed. (Id.) Owens claims that the only interaction he had with 2 Cardenas-Ornelas was “responding to a grievance concerning his legal mail.” (Id.) 3 Owens also states that as lieutenant, he had “no control or input over phone 4 access or tier, yard, chapel, and law library schedules at HDSP.” (Id.) 5 Because Cardenas-Ornelas has not provided evidence showing that Owens 6 had any decision-making authority regarding Cardenas-Ornelas’s yard time and 7 was involved in relevant grievance responses, Owens is entitled to summary 8 judgment on this count. 9 v. Piccinini 10 From May 2020, Defendant Piccinini was an associate warden at HDSP. 11 (ECF No. 84-1 at 258.) In this role, his responsibilities included “supervision of 12 staff and programs at HDSP, supervision, custody, security, discipline, safety 13 offenders, the security and safety of staff, and the security and safety of HDSP.” 14 (Id.) Cardenas-Ornelas claims that Piccinini was among the individuals who 15 decided to quarantine Unit 9 in March 2020. (ECF Nos. 1-1 at 12, 12 at 11.) 16 Like other defendants, Piccinini states that the Covid-19 protocols were 17 communicated to him through the chain of command and that as associate 18 warden, he was required to and followed the protocols as directed. (Id.) Piccinini 19 also states that as associate warden, he had “no responsibility over phone access 20 or tier, yard, chapel, and law library schedules at HDSP, and therefore did not 21 deny Cardenas-Ornelas access to . . . the yard.” (Id.) Piccinini also states that the 22 only interaction he had with Plaintiff was “responding to certain grievances which 23 are not at issue in this lawsuit.” (Id.) Although Cardenas-Ornelas claims that 24 Piccinini denied several grievances, it does not appear that he had a role in the 25 grievances submitted to this Court. (See ECF No. 84-1 at 64-79.) In his response 26 to Defendants’ motion for summary judgment, Cardenas-Ornelas does not 21 27 1 provide further evidence regarding Piccinini’s role in the relevant events. (See ECF 2 No. 87.) 3 Because Cardenas-Ornelas has not provided any evidence that Piccinini 4 had decision-making authority regarding Cardenas-Ornelas’s yard time and was 5 not involved in the grievance responses, Piccinini is entitled to summary 6 judgment on this count. 7 F. QUALIFIED IMMUNITY 8 Finally, Defendants argue that all Cardenas-Ornelas’s claims are barred by 9 qualified immunity. (ECF No. 84 at 23.) Defendants argue that Cardenas-Ornelas 10 “cannot meet his burden of showing that Defendants violated any right, much 11 less a right that was clearly established,” but do not offer any arguments as to 12 why they are entitled to qualified immunity on this count. (Id.) 13 As explained above, there are genuine disputes of material fact as to 14 whether Warden Johnson violated Cardenas-Ornelas’s Eighth Amendment rights 15 by denying him outdoor exercise for a prolonged period. And Ninth Circuit case 16 law as of 2020 clearly established that complete deprivation of outdoor exercise 17 for prolonged periods of time constituted an objectively serious deprivation under 18 the Eighth Amendment. See Spain, 600 F.2d 189 at 199; LeMaire, 12 F.3d at 19 1457; Allen, 40 F.3d 1001. Therefore, Warden Johnson is not entitled to qualified 20 immunity on this count. 21 IV. COUNT 2B: DENIAL OF YARD TIME 22 A. EXHAUSTION 23 Defendants argue that Cardenas-Ornelas’s equal protection claim is barred 24 because he failed to exhaust his administrative remedies. (ECF Nos. 84 at 9, 93 25 at 6.) NDOC Administrative Regulation (AR) 740 requires inmates to complete a 26 three-step grievance procedure, which includes an informal grievance, a first- 22 27 1 level grievance, and a second-level grievance. AR 740.08-10. 2 Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be 3 brought with respect to prison conditions under … [42 U.S.C. § 1983], or any 4 other Federal law, by a prisoner confined in any jail, prison, or other correctional 5 facility until such administrative remedies as are available are exhausted.” 42 6 U.S.C. § 1997e(a). The PLRA requires “proper exhaustion” of an inmate’s claims. 7 Woodford v. Ngo, 548 U.S. 81, 90 (2006). This means that “a prisoner must 8 complete the administrative review process in accordance with the applicable 9 procedural rules, including deadlines, as a precondition to bringing suit in federal 10 court.” Woodford, 548 U.S. at 88. 11 The only limit to § 1997e(a)’s mandate is the one in its text: An inmate need 12 exhaust only such administrative remedies as are “‘available.’” Ross v. Blake, 578 13 U.S. 632, 648 (2016). The PLRA does not require exhaustion when circumstances 14 render administrative remedies “effectively unavailable.” See Eaton v. Blewett, 50 15 F.4th 1240, 1245 (9th Cir. 2022); McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 16 2015) (as amended) (“[F]ailure to exhaust a remedy that is effectively unavailable 17 does not bar a claim from being heard in federal court.”) “[W]here inmates take 18 reasonably appropriate steps to exhaust but are precluded from doing so by a 19 prison’s erroneous failure to process the grievance, [the court has] deemed the 20 exhaustion requirement satisfied.” Fordley v. Lizarraga, 18 F.4th 344, 352 (9th 21 Cir. 2021). 22 The failure to exhaust administrative remedies is “an affirmative defense 23 the defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204, 216 24 (2007). The defendant bears the burden of proving that an available 25 administrative remedy was not exhausted. Albino v. Baca, 747 F.3d 1162, 1172 26 (9th Cir. 2014). If the defendant makes that showing, the burden shifts to the 23 27 1 inmate to “show there is something in his particular case that made the existing 2 and generally available administrative remedies effectively unavailable to him by 3 ‘showing that the local remedies were ineffective, unobtainable, unduly 4 prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 F.3d 1182, 5 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 6 A motion for summary judgment is typically the appropriate vehicle to 7 determine whether an inmate has properly exhausted their administrative 8 remedies. Albino, 747 F.3d at 1169. “If undisputed evidence viewed in the light 9 most favorable to the prisoner shows a failure to exhaust, a defendant is entitled 10 to summary judgment under Rule 56.” Id. at 1166. But “[i]f material facts are 11 disputed, summary judgment should be denied, and the district judge rather 12 than a jury should determine the facts.” Id. 13 The record indicates that Plaintiff complained in an informal grievance, 14 numbered 20063103224, on June 12, 2020 about protective custody inmates 15 being denied equal protection of the laws by being denied yard time when other 16 prison populations were being given yard time during Covid-19. (ECF No. 84-1 at 17 74, 82-84.) This grievance was responded to and denied. (Id. at 74, 85.) Plaintiff 18 then filed a first level grievance regarding the same issue on August 6, 2020. (Id. 19 at 82.) This was responded to and denied. (Id. at 75, 81.) Plaintiff then attempted 20 to submit a second level grievance on August 28, 2024. (Id. at 118.) An Improper 21 Grievance Memo states that this grievance was rejected because Plaintiff failed to 22 attach a “DOC 3098 Improper Grievance Memo” to the grievance. (Id. at 117.) 23 Handwritten on the Improper Grievance Memo it says “HDSP Officials have 24 possession of this DOC 3089 already” and “I am unable to submit documents 25 because HDSP officials have possession…” above what appears to be Plaintiff’s 26 signature. (Id.) It appears that Plaintiff submitted another second level grievance 24 27 1 on October 16, 2020, which was rejected as improper, stating, stating that a 2 Second Level had already been submitted, and to “Please be patient and wait for 3 an official response to your Second Level Grievance under this log number.” (Id. 4 at 119-20.) Plaintiff’s second level grievance was responded to on November 11, 5 2020, and was denied. (Id. at 76.) 6 The record is sufficient to create a genuine dispute as to whether Cardenas- 7 Ornelas exhausted his remedies as to his equal protection claim. Thus, 8 Defendants’ motion for summary judgment on the basis of exhaustion is denied 9 as to Count 2B. 10 B. EQUAL PROTECTION 11 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal 12 Protection Clause of the Fourteenth Amendment a plaintiff must show that the 13 defendants acted with an intent or purpose to discriminate against the plaintiff 14 based upon membership in a protected class.” Furnace v. Sullivan, 705 F.3d 15 1021, 1030 (9th Cir. 2013) (citation and internal quotation marks omitted). To 16 establish a violation of the Equal Protection Clause, the prisoner must present 17 evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239– 18 40 (1976); Serrano, 345 F.3d at 1082. 19 This Court allowed Cardenas-Ornelas to proceed with an equal protection 20 claim that Defendants Portillo, Owens, Warden Johnson, Struck, and Piccinini 21 provided other inmates at HDSP with yard time while denying Plaintiff yard time, 22 and used Covid-19 as a baseless pretext to do so. (ECF No. 12 at 15-16.) 23 Cardenas-Ornelas claims that while his unit was denied yard time, Defendants 24 permitted “every other [unit] within the NDOC to continue receiving exercise, 25 including General Population, Administrative and disciplinary segregation units.” 26 (ECF No. 1-1 at 15.) The restrictions applied only to “inmates housed in protective 25 27 1 segregation, and restrictions were imposed only on those activities which 2 benefited the inmates.” (Id. at 15-16.) Cardenas-Ornelas further alleges that he 3 has been “told by a number of officers, including Portillo, that Warden Johnson 4 does not like protective segregation (“P.S.”) inmates, and that this allows him to 5 lock down the P.S. units.” (Id. at 16.) 6 Defendants argue that Cardenas-Ornelas was not treated differently 7 because prisoners were all restricted from accessing the yard when any prisoner 8 in that unit had contracted Covid-19. (ECF No. 12 at 14.) Defendants argue that 9 Cardenas-Ornelas has provided no evidence that Defendants treated him 10 differently than other inmates in units exposed to Covid-19; and that when they 11 did deny yard time, they had a rational basis for doing so: “Defendants were 12 attempting to prevent the spread of Covid-19.” (ECF No. 84 at 14.) However, the 13 only evidence that Defendants provide in their motion for summary judgment is 14 the declaration of Warden Johnson. (See ECF No. 84 at 13-14.) Warden Johnson’s 15 declaration explains that “by June 23, 2020, inmates in units who did not have 16 persons suspected of contacted Covid-19 were permitted to resume yard time,” 17 but that Unit 9 remained in quarantine “based on inmates in that unit having 18 tested positive for Covid-19.” (ECF No. 84-1 at 230.) Warden Johnson states that 19 “Units were quarantined based on whether inmates in that Unit tested positive 20 for Covid-19, and therefore all inmates were treated equally.” (Id.) Warden 21 Johnson does not explain when members of Unit 9 were allowed out of 22 quarantine. (See id.) Defendants do not provide evidence to contradict Cardenas- 23 Ornelas’s claim that he was not allowed yard time until more than a year later on 24 July 27, 2021. 25 Defendants point to Seaplane Adventures, LLC v. County of Marin, where 26 the Ninth Circuit held that a county’s public health order restricting recreational 26 27 1 flights during the Covid-19 pandemic did not violate a seaplane operator’s equal 2 protection rights. Seaplane Adventures, LLC v. Cnty. of Marin, 71 F.4th 724, 731 3 (9th Cir. 2023). As Defendants point out, the Ninth Circuit in Seaplane explained 4 that under an equal protection “class of one” claim, a plaintiff must demonstrate 5 that the defendant “(1) intentionally (2) treated [plaintiff] differently than other 6 similarly situated [individuals or groups], (3) without a rational basis.” Id. at 729 7 (citing Gerhart v. Lake Cnty., 637 F.3d 1013, 1022 (9th Cir. 2011)). To preclude 8 a grant of summary judgment, the plaintiff must show that “a rational trier of 9 fact could find for [plaintiff] on all three prongs of the ‘class of one’ claim.’” Id. at 10 729-30. 11 Defendants argue that the facts here are analogous to those in Seaplane, 12 and that Defendants’ restriction of “non-essential activities to prevent the spread 13 of Covid-19 clearly satisfies the rational basis test.” (ECF No. 84 at 14.) However, 14 this argument fails to address Cardenas-Ornelas’s claims that prisoners were 15 allowed to work in crowded conditions indoors while being denied access to 16 outdoor exercise for a prolonged period. In Seaplane, evidence in the record 17 showed that the defendant had “ample bases for making the distinction” between 18 recreational and non-recreational flights and banning only the former. Seaplane, 19 71 F.4th at 731. As explained above, Defendants’ arguments justifying the 20 disparity between yard time and work fail to establish the absence of a genuine 21 dispute of material fact. Here, a rational trier of fact could find that Defendants’ 22 reasons for denying Cardenas-Ornelas and Unit 9 outdoor exercise were 23 pretextual and lacked rational basis, based on the evidence Cardenas-Ornelas 24 has provided regarding his return to work. A rational trier of fact could also find 25 that Defendants treated Cardenas-Ornelas and Unit 9 differently than other 26 similarly situated groups, namely inmates in general population, administrative 27 27 1 and disciplinary segregation. Finally, a rational trier of fact could find that this 2 different treatment was intentional, based on Cardenas’s claims regarding 3 Warden Johnson’s dislike of protective segregation inmates and Defendants’ 4 failure to refute these claims. 5 C. PARTICIPATION 6 Defendants offer the same arguments regarding participation for this count 7 as the first. (ECF No. 84 at 22.) For similar reasons, the Court grants summary 8 judgment for defendants Portillo, Owens, Struck, and Piccinini, but denies 9 summary judgment for defendant Warden Johnson on this basis. 10 While Plaintiff alleges that he had many conversations regarding this issue 11 with Defendants Portillo and Owens, and that all Defendants implemented the 12 lockdown program depriving him of yard time, there is no indication that any 13 Defendants besides Warden Johnson had authority in implementing this policy. 14 (ECF No. 1-1 at 12, 16). The record indicates that Struck responded to Plaintiff’s 15 first level grievance with regard to denial of outdoor exercise. (ECF No. 84-1 at 16 74.) It also indicates that Piccinini authored multiple “Improper Grievance 17 Memos” to Plaintiff related to this claim. (Id. at 100, 105, 117, 119.) While his 18 role is unclear, Portillo’s name appears on one of Plaintiff’s first level grievances. 19 (Id. at 122.) 20 Because Plaintiff has not presented any evidence that these Defendants 21 participated in any manner beyond implementation of a policy that they had no 22 authority to change and responding to grievances, there is no genuine dispute of 23 fact as to their personal participation. “Where the defendant's only involvement 24 in the allegedly unconstitutional conduct is ‘the denial of administrative 25 grievances or the failure to act, the defendant cannot be liable under § 1983.’” 26 Grenning v. Klemme, 34 F. Supp. 3d 1144, 1157 (E.D. Wash.2014) (quoting 28 27 1 Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)); see also Jackson, v. State 2 of Nevada, No. 2:16-cv-00995-APG-NJK, 2019 WL 6499106, at *7 (D. Nev. Dec. 3 3, 2019)(“[M]erely denying a grievance without some decision-making authority 4 or ability to resolve the underlying issue grieved is not enough to establish 5 personal participation.”) 6 Accordingly, the Court grants summary judgment for Defendants Portillo, 7 Owens, Struck, and Piccini on this claim but denies summary judgment as to 8 Warden Johnson. 9 D. QUALIFIED IMMUNITY 10 Defendants make the same general argument regarding qualified immunity 11 for all claims. (ECF No. 84 at 23.) As discussed above, there are genuine disputes 12 of material fact as to whether Warden Johnson violated Cardenas-Ornelas’s equal 13 protection right by denying Cardenas-Ornelas’s unit access to the yard while 14 allowing other units access to the yard. Furthermore, it is clearly established that 15 a prisoner can assert a class-of-one equal protection claim by showing they were 16 treated differently from other similarly situated prisoners and that there was no 17 rational basis for the difference in treatment. See Vill. of Willowbrook v. Olech, 18 528 U.S. 562, 564 (2000). Therefore, Defendant Warden Johnson is not entitled 19 to summary judgment on this claim on this basis. 20 V. COUNT 4: COVID-19 COME TO WORK POLICY 21 A. EXHAUSTION 22 Defendants argue that Plaintiff’s Eighth Amendment claim alleging a policy 23 requiring officers to come to work after having reported contact with individuals 24 who had contracted Covid-19 is barred because he failed to exhaust his 25 administrative remedies. (ECF No. 84 at 9.) 26 Upon review of the grievance records (ECF No. 84-1), it does not appear 29 27 1 that Plaintiff brought any grievances regarding a policy requiring officers to come 2 to work after having been exposed to COVID-19. 3 Because Defendants have met their burden of showing an absence of 4 genuine dispute of fact on this issue, the claim is dismissed. The Court grants 5 Defendants’ motion for summary judgment on Count 4. 6 VI. COUNT 5: MAIL DELAY 7 The Court allowed Cardenas-Ornelas to proceed with his claim that Officer 8 Johnson deliberately interfered with the delivery of his mail in February 2020. 9 (ECF No. 12 at 26.) Plaintiff alleges that Officer Johnson delivered mail from his 10 attorney dated February 4 on February 21—a delay of approximately 17 days— 11 interfering with Plaintiff’s ability to contact his lawyer and satisfy a judge’s order 12 to timely comply with an order. (ECF No. 12 at 23-24.) As a result of Johnson’s 13 failure to provide the legal mail within the 24-hour required period, Plaintiff 14 claims that he was unable to properly research and write a response. (ECF No. 15 12 at 24.) 16 Defendants argue that Plaintiff has “no admissible evidence that Officer 17 Johnson withheld his legal mail” because the mail was received at HDSP on 18 February 20 and Officer Johnson delivered the mail to Plaintiff on February 21. 19 (ECF No. 84 at 20.) 20 The record shows that the letter from Plaintiff’s attorney, David K. Neidert, 21 was dated February 4, 2020. (ECF No. 87-1 at 80.) In the letter, Mr. Neidert 22 informed Plaintiff that because of a decision by Judge Du on January 31, 2020, 23 Plaintiff had 30 days to take action to avoid dismissal of his case. (Id.) Because 24 Judge Du had found that one of Plaintiff’s claims was unexhausted in state court, 25 Mr. Neidert explained that Plaintiff could do one of two things to avoid dismissal 26 (which would be “catastrophic to [his] case.”) (Id.) Mr. Neidert asked Plaintiff to 30 27 1 sign the document enclosed so that he could file it with the court to “get your 2 petition moving again.” (Id. at 81.) 3 The stamp on the envelope was dated February 4, 2020. (Id. at 76.) In 4 Warden Johnson’s response to Plaintiff’s grievance, he explains that this is a 5 “printed stamp which identifies when the stamp was printed, not mailed.” (ECF 6 No. 84-1 at 78.) The NDOC legal form does not show when the mail was received 7 by HDSP. (Id.) The form indicates that the mail was received by Cardenas-Ornelas 8 on February 21, 2020. (Id.) 9 In an informal grievance filed March 5, 2020, Plaintiff complained about 10 the delay as being in violation of administrative regulations and his “First 11 Amendment right to be free from interference of access to Courts.” (ECF No. 84- 12 1 at 77.) The grievance was denied, and Cardenas-Ornelas filed a first level 13 grievance reiterating his complaint. (Id.) Warden Johnson responded to that 14 grievance, admitting that the officer “did not follow protocol as he failed to date 15 stamp the envelope [] upon receipt at [HDSP].” (Id. at 78.) Warden Johnson stated 16 that this was “unacceptable” and would result in the officer receiving “training to 17 ensure he clearly understands Department Policy and his responsibility to ensure 18 he properly processes incoming mail[.]” (Id.) Because there was no date stamp on 19 the envelope, Warden Johnson was “unable to prove or disprove [Plaintiff’s] claim” 20 that the letter for held for more than twenty-four hours. (Id.) Warden Johnson 21 also did not identify the officer involved by name. (Id.) 22 In his declaration, Officer Johnson asserts that in February 2020, he had 23 “no responsibility for processing incoming mail or logging incoming mail.” He 24 further states that he “delivered mail to inmates on the same day [he] received it” 25 and “never delayed delivering legal mail, but followed the guidelines set forth in 26 NDOC AR 722 and 750.” (ECF No. 84-1 at 225.) 31 27 1 The record does not clearly establish whether the delay occurred before the 2 letter arrived at HDSP or after the letter arrived; whether Officer Johnson or 3 another officer was responsible for the failure to stamp the mail upon receipt; or 4 (if the letter arrived at HDSP before February 20) whether Officer Johnson or 5 another officer was responsible for the delay. But viewing the facts in the light 6 most favorable to Cardenas-Ornelas, a rational finder of fact could conclude that 7 Officer Johnson delayed delivery of Plaintiff’s legal mail. 8 A. FIRST AMENDMENT 9 Prisoners have “a First Amendment right to send and receive mail.” 10 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Prisoners also 11 have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 12 343, 346 (1996). To establish a violation of the right of access to the courts, a 13 prisoner must establish that he or she has suffered an actual injury. See Lewis, 14 518 U.S. at 349; Nasby v. Nevada, 79 F.4th 1062, 1056 (9th Cir. 2023); Madrid 15 v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999). 16 Defendants point to two Ninth Circuit cases finding that incidents of 17 mishandling or delaying mail did not violate the First Amendment. (ECF No. 84 18 at 20.) In Crofton, the court found that a temporary delay of the plaintiff’s 19 publications, resulting from the prison official’s security inspection, did not 20 violate his First Amendment rights. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 21 1999). In Stevenson, the court found that a prison official’s conduct in handing 22 legal mail to a guard, who then opened the mail outside the inmate’s presence, 23 was negligent but not unconstitutional. Stevenson v. Koskey, 877 F.2d 1435, 24 1441 (9th Cir. 1989). Both cases are distinguishable from the facts of this case, 25 which involve the alleged delay of legal mail. 26 Defendants also argue that Cardenas-Ornelas cannot establish that Officer 32 27 1 Johnson’s delay caused actual harm. (ECF No. 84 at 21.) In his complaint, 2 Cardenas-Ornelas argues that this delay meant that Plaintiff was “unable to 3 properly research and write a response.” (ECF No. 1-1 at 31.) This was “made 4 worse by the fact that he could not get an appointment with the law library.” (Id.) 5 In his response to their motion for summary judgment, Cardenas-Ornelas 6 reiterates his access to court claim, but does not argue that the delay caused 7 harm. (See ECF No. 1-1 at 16.) Cardenas-Ornelas does not claim that he was 8 unable to respond to his attorney or the court before the required deadline, or 9 that the delay resulted in an adverse ruling. 10 Because Cardenas-Ornelas has failed to allege facts sufficient to create a 11 genuine dispute of material fact as to whether the delay in receiving his legal mail 12 resulted in actual harm, Defendants’ motion for summary judgment on Count 5 13 is granted. 14 VII. COUNT 6A: PHONE CALL BAN 15 A. EXHAUSTION 16 Defendants argue that Plaintiff’s federal and state claims regarding a ban 17 on phone calls are barred because he failed to exhaust his administrative 18 remedies. (ECF No. 84 at 9.) 19 Upon review of the grievance records (ECF No. 84-1), it does not appear 20 that Plaintiff brought any grievances regarding a ban on phone calls. 21 Because Defendants have met their burden of showing an absence of 22 genuine dispute of fact on this issue, the claim is dismissed. The Court grants 23 Defendants’ motion for summary judgment on Count 6A. 24 VIII. COUNT 6B: PHONE CALL BAN 25 A. EXHAUSTION 26 Defendants argue that Plaintiff’s equal protection claims regarding denial 33 27 1 || of phone calls are barred because he failed to exhaust his administrative 2 || remedies. (ECF No. 84 at 9.) 3 Upon review of the grievance records (ECF No. 84-1), it does not appear 4 || that Plaintiff brought any grievances regarding the denial of phone calls. 5 Because Defendants have met their burden of showing an absence of 6 || genuine dispute of fact on this issue the Court grants Defendants’ motion 7 || summary judgment on Count 6B. 8 IX. CONCLUSION 9 It is therefore ordered that Defendants’ motion for summary judgment (ECF 10 || No. 84) is DENIED as to Plaintiffs Eighth Amendment and Equal Protection 11 || claims regarding denial of outdoor exercise (Counts 2A and 2B) against Warden 12 || Johnson, and GRANTED as to Defendants Portillo, Owens, Struck, and Piccinini. 13 Defendants’ motion for summary judgment (ECF No. 84) is GRANTED as 14 || to Plaintiff's other claims (Counts 4, 5, 6A, and OB). 15 Plaintiffs claim regarding deprivation of outdoor exercise in violation of the 16 || Eighth Amendment and Equal Protection clause (Counts 2A and 2B) will proceed 17 || against Defendant Warden Johnson. All other Defendants are dismissed from this 18 || case. 19 20 DATED THIS 30t# day of September 2024. 21 22 Aras jlosect en 23 ANNE R. TRAUM 24 UNITED STATES DISTRICT JUDGE 25 26 27 34 28