Part II Principals of 1983 for the 9th Circuit

     Voluntary Dismissal (Fed. R. Civ. P. 41(a))

Prior to the filing of an answer or a motion for summary judgment, the plaintiff may, without order of the court, dismiss the action without prejudice.  See Fed. R. Civ. P. 41(a)(1); United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008); see also Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999) (holding voluntary dismissal of second action containing same claims is with prejudice); cf. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (discussing distinction between Rule 41(a)(1) and Rule 41(a)(2)).

“Federal Rule of Civil Procedure 41(a)(2) allows a plaintiff, pursuant to an order of the court, and subject to any terms and conditions the court deems proper, to dismiss an action without prejudice at any time.  When ruling on a motion to dismiss without prejudice, the district court must determine whether the defendant will suffer some plain legal prejudice as a result of the dismissal.”  Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996) (citations omitted); see also Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008); Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001); Resorts Int’l, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1399–1400 (9th Cir. 1995); Hyde & Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir. 1994); Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982).

“[L]egal prejudice is just that – prejudice to some legal interest, some legal claim, some legal argument.”  Westlands, 100 F.3d at 97.  The expense of having defended the lawsuit is not legal prejudice.  See id.; Hamilton, 679 F.2d at 146; cf. Hyde & Drath, 24 F.3d at 1169 (stating that the fact that trial preparations had begun is not legal prejudice).  The possibility of a second lawsuit is also not legal prejudice.  See Smith, 263 F.3d at 976; Westlands, 100 F.3d at 97; Hyde & Drath, 24 F.3d at 1169; Mechmetals Corp. v. Telex Computer Prods., Inc., 709 F.2d 1287, 1294 (9th Cir. 1983); Hamilton, 679 F.2d at 145; cf. Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 217 (1947) (discussing that party could dismiss under Rule 41(a)(2) instead of losing a directed verdict motion).

As a term or condition of dismissal, a district court may, but is not required to, award attorney’s fees and costs to the defendant.  See Westlands, 100 F.3d at 97; Stevedoring Servs., 889 F.2d at 921.  If the district court does award such fees and costs, they should not be awarded for work that can be used in future litigation.  See Westlands, 100 F.3d at 97; Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993); cf. In re Lowenschuss, 67 F.3d at 1401 (noting that any prejudice from dismissal was lessened because work could be used in another action).

f.       Involuntary Dismissal (Fed. R. Civ. P. 41(b))

“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.  Unless the dismissal order states otherwise, a dismissal under this subdivision … operates as an adjudication on the merits.”  Fed. R. Civ. P. 41(b).  Upon dismissal for failure to prosecute, the party may not challenge any interlocutory orders entered by the district court.  See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996); Ash v. Cvetkov, 739 F.2d 493, 497–98 (9th Cir. 1984); cf. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (stating that where the complaint has been dismissed properly under Fed. R. Civ. P. 8, the court need not look at other alleged problems with dismissal).

“[D]ismissal is a harsh penalty and, therefore, it should only be imposed in extreme circumstances.”  Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Tillman v. Tillman, 825 F.3d 1069, 1074 (9th Cir. 2016); Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1132 (9th Cir. 2008) (vacating dismissal order); Bautista v. Los Angeles Cty., 216 F.3d 837, 841 (9th Cir. 2000); Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998); Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 825 (9th Cir. 1991).

Five factors should guide the court’s decision whether to dismiss: (1) the public’s interest in expeditiously resolving litigation; (2) the court’s interest in managing its docket; (3) the defendant’s interest in avoiding prejudice; (4) the public policy interest favoring disposition of cases on the merits; and (5) the availability of less drastic alternatives.  See Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Bautista, 216 F.3d at 841; Hernandez, 138 F.3d at 399; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam); Ferdik, 963 F.2d at 1260–61.

Factual findings as to these factors are not required, but such findings are helpful in the process of appellate review.  See Bautista, 216 F.3d at 841; Al-Torki, 78 F.3d at 1384; Ferdik, 963 F.2d at 1261.

Similarly, an explicit discussion of alternatives to dismissal is favored.  See Hernandez, 138 F.3d at 400; Ferdik, 963 F.2d at 1262.  A warning that the complaint will be dismissed may be considered as a less drastic alternative sufficient to meet the fifth factor.  See Ferdik, 963 F.2d at 1262; Malone v. U.S. Postal Serv., 833 F.2d 128, 132–33 & n.1 (9th Cir. 1987); cf. Hernandez, 138 F.3d at 401 (concluding dismissal was an abuse of discretion because parties were not on notice of risk of dismissal).  A warning may not be necessary where dismissal is pursuant to a noticed motion instead of sua sponte.  See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1455–56 (9th Cir. 1994).

Dismissal may be appropriate for failure to follow local rules, see Ghazali, 46 F.3d at 53; for failure to comply with an order to file an amended complaint, see Ferdik, 963 F.2d at 1260–61; for failure to inform the district court of a change of address pursuant to a local rule, see Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (per curiam); and for failure to appear at trial, see Al-Torki, 78 F.3d at 1385; Hernandez v. Whiting, 881 F.2d 768, 771–72 (9th Cir. 1989) (reversing dismissal of prisoner’s case for failure to appear at trial due to trial court’s failure to pursue alternatives for securing prisoner’s presence at trial).  Dismissal may be an appropriate sanction for discovery abuses.  See Fed. R. Civ. P. 37(b); Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993).  But see Johnson, 939 F.2d at 825–26 (holding dismissal was too severe a sanction for failure to appear at a deposition and settlement conference where court had failed to employ or threaten to employ less drastic alternatives).  “[D]ismissal for lack of prosecution must be supported by a showing of unreasonable delay.”  Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Al-Torki, 78 F.3d at 1384; In re Eisen, 31 F.3d at 1451.  Dismissal for judge-shopping may be acceptable, but may be an abuse of discretion where entered sua sponte without considering alternatives.  See Hernandez, 138 F.3d at 399–400.  Dismissal of an action after a “bare bones” order regarding the defects of a second amended complaint is an abuse of discretion.  Bautista, 216 F.3d at 841–42.

g.       Default Judgments (Fed. R. Civ. P. 55(b))

Federal Rule of Civil Procedure 55(b) allows for the entry of default judgment under limited conditions.  Ordinarily, default judgments are disfavored.  See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986).

When considering whether to enter a default judgment, the court should consider “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.”  Id. at 1471–72; see also Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996); Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1989).

C.      Disciplining Pro Se Litigants

1.       Vexatious Litigant Orders

“Flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.”  De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990); see also Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); O’Loughlin v. Doe, 920 F.2d 614, 618 (9th Cir. 1990).  To prevent such abuses, the court may enter a pre-filing review order requiring a vexatious litigant to submit complaints for review prior to filing.  See Molski, 500 F.3d at 1057; De Long, 912 F.2d at 1147; see also In re McDonald, 489 U.S. 180, 184 (1989) (per curiam); Demos v. U.S. Dist. Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (order).  “The record supporting such an order ‘needs to show, in some manner, that the litigant’s activities were numerous or abusive.’” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (quoting De Long, 912 F.2d at 1147).  “[S]uch pre-filing review orders should rarely be filed.”  De Long, 912 F.2d at 1147; see also Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014); Molski, 500 F.3d at 1057; Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990).

Before the court enters a vexatious litigant order, the plaintiff must be given adequate notice and an opportunity to oppose entry of the order, the court must develop an adequate record by listing the case filings that support its finding of vexatiousness, the court must make findings concerning the frivolous or harassing nature of the prior litigation, and the pre-filing review order must be narrowly tailored to remedy only the specific litigation abuses supported by the record.  See Ringgold-Lockhart, 761 F.3d at 1062; Molski, 500 F.3d at 1057; O’Loughlin, 920 F.2d at 617; De Long, 912 F.2d at 1147–48; Moy, 906 F.2d at 470–71.

A vexatious litigant order cannot be entered against an attorney.  See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999).

2.       Sanctions

Courts may impose sanctions on pro se litigants proceeding in forma pauperis.  See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir. 1996); Warren v. Guelker, 29 F.3d 1386, 1389–90 (9th Cir. 1994) (per curiam).  Prior to imposing Rule 11 sanctions pursuant to a party’s motion, the court must follow the procedures outlined in Fed. R. Civ. P. 11(c)(1)(A).  See Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 788–79 (9th Cir. 2001); Barber v. Miller, 146 F.3d 707, 710–11 (9th Cir. 1998); see also Holgate v. Baldwin, 425 F.3d 671, 677–78 (9th Cir. 2005).

Pro se status is relevant to the reasonableness determination under Fed. R. Civ. P. 11.  See Warren, 29 F.3d at 1390.  The court can also consider the pro se litigant’s ability to pay as one factor in assessing sanctions.  See id.

D.      Using Magistrate Judges

“The power of federal magistrate judges is limited by 28 U.S.C. § 636.”  Estate of Conners ex rel. Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993) (citing Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992)).  See also Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015) (explaining that “[p]ursuant to section 636, magistrate judges may hear and determine nondispositive matters, but not dispositive matters, in § 2254 proceedings).

Under 28 U.S.C. § 636(b)(1)(A), a district court judge may designate a magistrate judge:

… to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.

Under 28 U.S.C. § 636(b)(1)(B), a district court may designate a magistrate judge “to conduct hearings, including evidentiary hearings, and … submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A) … and of prisoner petitions challenging conditions of confinement.”  The distinction between subparagraphs (A) and (B) is that the former confers a power to make a final disposition and the latter only confers a power to recommend a final disposition.  See Meredith, 6 F.3d at 658.

“A district judge may not designate a magistrate judge to hear and determine a motion to involuntarily dismiss an action.”  Hunt v. Piller, 384 F.3d 1118, 1123 (9th Cir. 2004).  However, the district court may “designate a magistrate judge to hear a motion to dismiss and submit proposed findings of fact and recommendations for the disposition of such a motion” under § 636(b)(1)(B).  Hunt, 384 F.3d at 1123.

The magistrate judge may not make a final determination on an application for in forma pauperis status unless the parties have consented.  See Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 1988) (order).

The magistrate judge has no power to consider post-trial motions, such as motions for attorney’s fees, under § 636(b)(1)(A).  See Meredith, 6 F.3d at 659.  If the district court conducts a de novo review of the order, however, the review corrects this error.  See id.

When the magistrate judge has submitted recommended findings of fact and conclusions of law to the court, a party has 14 days after service to file written objections.  See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.  A party, however, has no right to file objections to a magistrate judge’s recommendation that an application to proceed in forma pauperis be denied.  See Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998) (per curiam).

“It is clear that failure to object to proposed findings of fact entered by magistrate[ judge]s in matters referred to them under 28 U.S.C. § 636(b)(1) (1982) waives the opportunity to contest those findings on appeal.”  Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 635 (9th Cir. 1988) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983) (order)), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc) (per curiam); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991); Smith v. Frank, 923 F.2d 139, 141 (9th Cir. 1991).  Note this court has stated that the “cases discussing the effects of failure to object to a report and recommendation are perhaps best understood as an application of the doctrine of forfeiture, not waiver.”  Bastidas v. Chappell, 791 F.3d 1155, 1159 n.1 (9th Cir. 2015).

Similarly, “a party who fails to file timely objections to a magistrate judge’s nondispositive order with the district judge to whom the case is assigned forfeits its right to appellate review of that order.”  Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (concluding that party had waived its right to challenge discovery sanctions).[4]

 “While ‘failure to object to a magistrate judge’s factual findings waives the right to challenge those findings, [i]t is well settled law in this circuit that failure to file objections … does not [automatically] waive the right to appeal the district court’s conclusions of law,’ but is rather ‘a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.’” Bastidas 791 F.3d at 1159  (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (alterations in original) (internal quotation marks omitted)). See also Pollard v. The GEO Grp., Inc., 629 F.3d 843, 853 (9th Cir. 2010), reversed on other grounds by Minneci v. Pollard, 565 U.S. 118 (2012); Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007); United States v. Torf (In re Grand Jury Subpoena), 357 F.3d 900, 903 (9th Cir. 2004) (as amended); Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Simpson, 77 F.3d at 1174 n.2; FDIC v. Zook Bros. Constr. Co., 973 F.2d 1448, 1450 n.2 (9th Cir. 1992).

“Consent, …, is the touchstone of magistrate judge jurisdiction.”  Wilhelm v. Rotman, 680 F.3d 1113, 1119 (9th Cir. 2012) (internal citation and quotation marks omitted); see also Allen v. Meyer, 755 F.3d 866, 868 (9th Cir. 2014) (magistrate judge had no jurisdiction where there was neither express or implied consent).  If the parties consent, a magistrate judge “may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case … .”  28 U.S.C. § 636(c)(1); see Meredith, 6 F.3d at 658.  “[A] court may infer consent where ‘the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.’” Wilhelm, 680 F.3d at 1119–20 (quoting Roell v. Withrow, 538 U.S. 580, 590 (2003)).  As this court recognized in Wilhelm v. Rotman, to the extent the Ninth Circuit previously held that consent could never be inferred, the court was overruled by the Supreme Court in Roell.  Wilhelm, 680 F.3d at 1120; see also Roell, 538 U.S. at 582, 590–91 (concluding that parties’ general appearances before the magistrate judge after they had been told of their right to be tried by a district judge supplied necessary consent); see also Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 918–19 (9th Cir. 2003).

The Ninth Circuit has concluded that a magistrate judge may not enter an order for criminal contempt, but has not decided the question with regard to civil contempt.  See Bingman v. Ward, 100 F.3d 653, 658 & n.1 (9th Cir. 1996); cf. 28 U.S.C. § 636(e) (discussing magistrate judge’s powers with regard to contempt proceedings).  For a discussion of the difference between civil and criminal contempt, see Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008) and Bingman, 100 F.3d at 656.

E.      Recusal/Disqualification of Judges

A judge may be disqualified where she or he “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”  28 U.S.C. § 455(b)(1); see also United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010).  Judicial rulings in the present or former proceedings are not enough to demonstrate bias unless they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”  Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. McChesney, 871 F.3d 801, 807 (9th Cir. 2017); Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1220 (9th Cir. 2014) (per curiam); United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007); Poland v. Stewart, 117 F.3d 1094, 1103–04 (9th Cir. 1997).  Moreover, information gained from prior proceedings cannot usually be the basis for a finding of judicial bias.  See Liteky, 510 U.S. at 551; see also Johnson, 610 F.3d at 1147; Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010).  But see United States v. Chischilly, 30 F.3d 1144, 1149 (9th Cir. 1994) (explaining that facts from prior litigation can establish bias if exceptional), overruled on other grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) (en banc).

For other grounds for the disqualification of judges, see 28 U.S.C. § 455(b)(2)–(5).

A judge accused of bias may determine the sufficiency of an affidavit supporting the motion for disqualification, but must proceed no further in ruling on the motion.  See 28 U.S.C. § 144; see also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008), abrogated on other grounds by Simmons v. Himmelreich, 136 S. Ct. 1843 (2016); Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988); United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).

F.      Considerations on Appeal

1.       Granting In Forma Pauperis Status

A district court may revoke the appellant’s in forma pauperis status by certifying that the appeal was not taken in good faith.  See 28 U.S.C. § 1915(a)(3).  If the district court does so certify, then the appellant may apply to the appellate court for leave to proceed in forma pauperis on appeal.  See Fed. R. App. P. 24(a).  “Unless the issues raised [on appeal] are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, the request of an indigent for leave to appeal in forma pauperis must be allowed.”  Ellis v. United States, 356 U.S. 674, 675 (1958) (per curiam) (citation omitted); accord Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977).

The appellate court must dismiss the appeal if it is frivolous, fails to state a claim, or is brought against defendants immune from suit for monetary damages.  See 28 U.S.C. § 1915(e)(2); Marks v. Solcum, 98 F.3d 494, 495–96 (9th Cir. 1996) (per curiam).

For a discussion of the relationship between the amended § 1915(a)(3) (1996) and Fed. R. App. P. 24(a), see infra IV.B.  For payment of filing fees on appeal, see 28 U.S.C. § 1915(a)(2).  For additional discussion, see supra II.B.1.c.

2.       Appointment of Counsel

Counsel should be appointed on appeal only in exceptional circumstances.  See United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam).  For a discussion of “exceptional circumstances,” see supra II.B.1.e.(2).

3.       Transcripts

A litigant who has been granted in forma pauperis status may move to have transcripts produced at government expense.  See 28 U.S.C. § 753(f); Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984) (order).

If any issue raised on appeal depends on the review of a transcript, it is the appellant’s responsibility to provide the relevant portions of the transcript.  See Fed. R. App. P. 10(b)(2); Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (per curiam); Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (per curiam); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 789–90 (9th Cir. 1989); Thomas v. Computax Corp., 631 F.2d 139, 143 (9th Cir. 1980) (holding inability to afford production of transcripts is insufficient to excuse this obligation).  The appellate court may dismiss or decline to consider the appeal, or portions thereof, where a transcript is necessary for review and the party who raised the issue has failed to provide a transcript.  See Jones v. City of Santa Monica, 382 F.3d 1052, 1056–57 (9th Cir. 2004); Hall, 935 F.2d at 165; Syncom Capital Corp., 924 F.2d at 169; Portland Feminist Women’s Health Ctr., 877 F.2d at 789–90.

 

 

III.    ANALYSIS OF SUBSTANTIVE LAW

This section discusses the basic analytical frameworks for claims commonly raised by prisoners.  The majority of the section is devoted to the rights guaranteed to prisoners by the Constitution (III.A), with a brief portion on statutory claims often raised by prisoners (III.B).  The section also includes brief discussions of parole and probation (III.C) and the rights of pretrial detainees (III.D).

A.      Constitutional Claims

“There is no iron curtain drawn between the Constitution and the prisons of this country.”  Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974); see also Beard v. Banks, 548 U.S. 521, 528 (2006); Shaw v. Murphy, 532 U.S. 223, 228–29 (2001); Turner v. Safley, 482 U.S. 78, 84 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979); Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017); Bull v. City & Cty. of San Francisco, 595 F.3d 964, 972 (9th Cir. 2010) (en banc); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003); Morrison v. Hall, 261 F.3d 896, 900–01 (9th Cir. 2001); Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1998) (en banc); Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990); Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir. 1988).  “[S]imply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.  Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and right … .”  Bell, 441 U.S. at 545–46 (citation and internal quotation marks omitted); see also Shaw, 532 U.S. at 229; Gerber v. Hickman, 291 F.3d 617, 620 (9th Cir. 2002) (en banc); Morrison, 261 F.3d at 901; Michenfelder, 860 F.2d at 331.

Courts should accord prison officials great deference when analyzing the constitutional validity of prison regulations.  See Beard, 548 U.S. at 528–30; Overton v. Bazzetta, 539 U.S. 126, 132 (2003); O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987); Turner, 482 U.S. at 84–85; Dunn v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010); Bahrampour, 356 F.3d at 973; Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001); Gilmore v. California, 220 F.3d 987, 992 n.5 (9th Cir. 2000); Anderson v. Cty. of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); Michenfelder, 860 F.2d at 331; see also Noble v. Adams, 646 F.3d 1138, 1143 (9th Cir. 2011) (as amended) (explaining that the court should “defer to prison officials’ judgment so long as that judgment does not manifest either deliberate indifference or an intent to inflict harm.”).  The issue of deference to prison officials is more acute when state prison officials are defendants in federal court.  See Turner, 482 U.S. at 85; Mauro, 188 F.3d at 1058; Royse v. Superior Court, 779 F.2d 573, 574 (9th Cir. 1986); Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981).

Despite limitations on prisoners’ constitutional rights and the deference to be accorded prison officials, “[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”  Procunier v. Martinez, 416 U.S. 396, 405–06 (1974), limited by Thornburgh v. Abbott, 490 U.S. 401 (1989); see also Turner, 482 U.S. at 84; Morrison, 261 F.3d at 901; Mauro, 188 F.3d at 105. See also Shorter v. Baca, 895 F.3d 1176, 1189 (9th Cir. 2018) (readily acknowledging the deference due prison officials engaged in the admittedly difficult task of administering inmate populations, but explaining that deference does not extend to sanctioning a clear violation of an inmate’s constitutional rights).

1.       First Amendment

a.       Speech Claims

(1)     General Principles

“[A] prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system.”  Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); Clement v. Cal. Dep’t. of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004) (per curiam); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).  A regulation that impinges on First Amendment rights “is valid if it is reasonably related to legitimate penological interests.”  Turner v. Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 528 (2006); Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Shaw v. Murphy, 532 U.S. 223, 229 (2001); Lewis v. Casey, 518 U.S. 343, 361 (1996); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Ashker, 350 F.3d at 922; Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001); Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc).  The prisoner may challenge whether her or his speech fits within the regulation in addition to challenging the regulation on its face.  See Hargis v. Foster, 312 F.3d 404, 410 (9th Cir. 2002).

In determining whether a prison regulation is reasonably related to a legitimate penological interest, the court should consider the following factors:  (1) whether there is a valid, rational connection between the regulation and the interest used to justify the regulation; (2) whether prisoners retain alternative means of exercising the right at issue; (3) the impact the requested accommodation will have on inmates, prison staff, and prison resources generally; and (4) whether the prisoner has identified easy alternatives to the regulation which could be implemented at a minimal cost to legitimate penological interests.  See Beard, 548 U.S. at 529; Overton, 539 U.S. at 132; Shaw, 532 U.S. at 229–30; Turner, 482 U.S. at 89–91; Crime Justice & Am., Inc. v. Honea, 876 F.3d 966, 972 (9th Cir. 2017); Hrdlicka v. Reniff, 631 F.3d 1044, 1049–50 (9th Cir. 2011); Prison Legal News, 397 F.3d at 699; Clement, 364 F.3d at 1151–52Clement, 364 F.3d at 1151-52; Bahrampour v. Lampert, 356 F.3d 969, 975–76 (9th Cir. 2004); Ashker, 350 F.3d at 922; Morrison, 261 F.3d at 901; Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999); Mauro, 188 F.3d at 1058–59.

The first of these factors is the most important.  See Prison Legal News, 397 F.3d at 699; Ashker, 350 F.3d at 922; Morrison, 261 F.3d at 901; Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001); Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990); see also Hrdlicka, 631 F.3d at 1051.

Legitimate penological interests include “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.”  Procunier v. Martinez, 416 U.S. 396, 412 (1974) (footnote omitted), limited by Thornburgh v. Abbott, 490 U.S. 401 (1989); Beard, 548 U.S. at 530–31 (motivating better behavior on the part of particularly difficult prisoners); Crime Justice & Am., Inc., 876 F.3d at 975 (“Maintaining security in a jail is inarguably a legitimate government interest.”); Mauro, 188 F.3d at 1059 (protecting guards; preventing prisoners from sexually harassing guards); Witherow v. Paff, 52 F.3d 264, 265–66 (9th Cir. 1995) (per curiam) (protecting public officials; preventing prisoners from sending dangerous or highly offensive items in the mail).

Prison regulations may be content-based when the regulation is related to legitimate security concerns, but regulations must otherwise be content-neutral.  See Thornburgh, 490 U.S. at 415–16; Turner, 482 U.S. at 90, 93; Bahrampour, 356 F.3d at 975; Mauro, 188 F.3d at 1059; Stefanow v. McFadden, 103 F.3d 1466, 1472 (9th Cir. 1996), superseded by statute on other grounds by the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5; Harper v. Wallingford, 877 F.2d 728, 732–33 (9th Cir. 1989); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987).

Where the plaintiff presents evidence of a lack of a rational relationship between a legitimate penological interest and a prison regulation, then “[p]rison authorities cannot rely on general or conclusory assertions to support their policies.  Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests.  An evidentiary showing is required as to each point.”  Walker, 917 F.2d at 386; see also Ashker, 350 F.3d at 922; Cook, 238 F.3d at 1150; Frost, 197 F.3d at 356–57.  Where the plaintiff has not presented evidence, but only alleged, that there is a lack of a rational relationship between a legitimate penological interest and a prison regulation, then it is enough that a reasonable prison official would think that the policy would serve a legitimate penological interest even if there is no evidence of problems in the past or the likelihood of problems in the future.  See Ashker, 350 F.3d at 922–23; Frost, 197 F.3d at 356–57; Mauro, 188 F.3d at 1060.

(2)     Applications
(a)     Personal Correspondence

Prisoners have “a First Amendment right to send and receive mail.”  Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam); see also Nordstrom v. Ryan, 856 F.3d 1265, 1271 (9th Cir. 2017).  Prison regulations concerning incoming mail should be analyzed under the Turner factors.  See Thornburgh v. Abbott, 490 U.S. 401, 411–13 (1989); Witherow, 52 F.3d at 265.  For a description of the Turner factors, see supra III.A.1.a.(1).  Prison regulations concerning outgoing prisoner mail may need to further “important or substantial governmental interest[s] unrelated to the suppression of expression,” Procunier v. Martinez, 416 U.S. 396, 413 (1974), limited by Thornburgh, 490 U.S. at 413–14, and they must at least more closely fit the interest served than regulations concerning incoming mail, see Thornburgh, 490 U.S. at 412; Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam); O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996); Witherow, 52 F.3d at 265; see also Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 878–79 (9th Cir. 2002).  Prison officials do not need to show that there is no less restrictive mail policy that could serve the same penological interests.  See Thornburgh, 490 U.S. at 412; Witherow, 52 F.3d at 265.

Prison officials may justifiably censor outgoing mail concerning escape plans, containing information about proposed criminal activity, or transmitting encoded messages.  See Procunier, 416 U.S. at 413.  Prison officials may also visually inspect outgoing mail to determine whether it contains contraband material that threatens prison security or material threatening the safety of the recipient.  See Witherow, 52 F.3d at 266; Royse v. Superior Court, 779 F.2d 573, 574–75 (9th Cir. 1986).  See also Nordstrom, 856 F.3d at 1272 (“Legitimate penological interests that justify regulation of outgoing legal mail include ‘the prevention of criminal activity and the maintenance of prison security.’” (quoting O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996))).

Prison officials may prohibit correspondence between inmates based on security concerns.  See Turner v. Safley, 482 U.S. 78, 93 (1987).

Prison officials may not prohibit inmates from receiving mail containing material downloaded from the internet.  See Clement v. Cal. Dep’t. of Corr., 364 F.3d 1148, 1152 (9th Cir. 2004) (per curiam).

(b)     Legal Correspondence

Prison officials are not permitted to review prisoners’ legal papers for legal sufficiency before sending them to the court.  See Ex Parte Hull, 312 U.S. 546, 549 (1941).

“[P]risoners have a protected First Amendment interest in having properly marked legal mail opened only in their presence.”  Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017) (concluding the protected First Amendment interest extends to civil legal mail).  Consistent with the First Amendment, prison officials may, (1) require that mail from attorneys be identified as such and (2) open such correspondence in the presence of the prisoner for visual inspection.  See Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981).  Cf. Mann v. Adams, 846 F.2d 589, 590–91 (9th Cir. 1988) (per curiam) (concluding that mail from public agencies, public officials, civil rights groups and news media may be opened outside the prisoners’ presence in light of security concerns).

“Mail from the courts, as contrasted to mail from a prisoner’s lawyer, is not legal mail.”  Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998); see also Hayes, 849 F.3d at 1211 (explaining the First Amendment does not prohibit opening mail from the courts outside the recipient’s presence).  A prison need not treat all mail sent to government agencies and officials as legal mail.  See O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996).

Note that in addition to a First Amendment right to send and receive mail while incarcerated, the Sixth Amendment right to assistance of counsel may also be implicated if a prison’s policy regarding outgoing legal mail interferes with the relationship between a criminal defendant and defense counsel.  See Nordstrom v. Ryan (Nordstrom II), 856 F.3d 1265, 1271–74 (9th Cir. 2017) (explaining that “prison officials may inspect, but may not read, an inmate’s outgoing legal mail in his presence” and holding that prison’s policy violated inmate’s First and Sixth Amendment rights).  See also Mangiaracina v. Penzone, 849 F.3d 1191, 1197 (9th Cir. 2017) (recognizing “that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right”); Nordstrom v. Ryan (Nordstrom I), 762 F.3d 903, 909 (9th Cir. 2014) (recognizing that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected).

(c)      Publications

“[P]ublishers and inmates have a First Amendment interest in communicating with each other.”  Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011).  Furthermore, “[a] First Amendment interest in distributing and receiving information does not depend on a recipient’s prior request for that information.”  Id.

A prisoner’s right to receive publications from outside the prison should be analyzed in light of the Turner factors.  See Beard v. Banks, 548 U.S. 521, 531–33 (2006); Bahrampour v. Lampert, 356 F.3d 969, 975–76 (9th Cir. 2004); Morrison v. Hall, 261 F.3d 896, 901–02 (9th Cir. 2001); Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999) (en banc); Stefanow v. McFadden, 103 F.3d 1466, 1472 (9th Cir. 1996), superseded by statute on other grounds by the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5; Harper v. Wallingford, 877 F.2d 728, 732 (9th Cir. 1989); see also Hrdlicka, 631 F.3d at 1049–51.  For a description of the Turner factors, see supra III.A.1.a.(1).

The Supreme Court has concluded that “a prohibition against receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores does not violate [a prisoner’s] First Amendment rights.”  Bell v. Wolfish, 441 U.S. 520, 550 (1979).  Whether such a rule is constitutional when applied to soft-cover books and magazines is not clearly established.  See Beard, 548 U.S. at 531–33 (upholding prison policy of denying newspapers, magazines, and photographs to a group of specially dangerous and recalcitrant inmates); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 923–24 (9th Cir. 2003) (holding that prison policy requiring books and magazines mailed to the prison to have an approved vendor label affixed to the package was not rationally related to a legitimate penological objective); Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998) (suggesting a publisher-only rule as applied to softback books and magazines may violate the First Amendment); Johnson v. Moore, 948 F.2d 517, 520 (9th Cir. 1991) (per curiam); Pratt v. Sumner, 807 F.2d 817, 819–20 (9th Cir. 1987) (finding prisoner’s complaint challenging prison’s publisher-only rule for books, including softcover legal materials, was not frivolous).

When considering prison regulations on incoming publications, “[s]ome content regulation is permissible in the prison context.”  McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987); see also Thornburgh v. Abbott, 490 U.S. 401, 415–16 (1989); Mauro, 188 F.3d at 1059; Stefanow, 103 F.3d at 1472; Harper, 877 F.2d at 732–33.

In light of security concerns, the Ninth Circuit has affirmed censorship of materials containing role-playing or similar fantasy games, Bahrampour, 356 F.3d at 976; advocating anti-Semitic violence, see Stefanow, 103 F.3d at 1472–75, and materials from the North American Man/Boy Love Association, see Harper, 877 F.2d at 734.

In light of concerns about preventing the sexual harassment of prison guards and other inmates, prison officials may prohibit receipt of sexually explicit materials.  See Bahrampour, 356 F.3d at 976; Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999); Mauro, 188 F.3d at 1060.

The Ninth Circuit has concluded, however, that prison officials may not prohibit receipt of Hustler when they allow prisoners to receive Playboy.  See Pepperling v. Crist, 678 F.2d 787, 790 (9th Cir. 1982).  The Ninth Circuit has also stated that prison officials may not prohibit materials which merely advocate racial supremacy, see Stefanow, 103 F.3d at 1472; McCabe, 827 F.2d at 638, or which merely advocate homosexual activity, see Harper, 877 F.2d at 733.

Prison officials may not prohibit receipt of gift publications when sent directly from the publisher.  See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999); see also Hrdlicka, 631 F.3d at 1050.  Prison officials may not prohibit receipt of subscription publications even when sent bulk rate or third or fourth class.  See Morrison, 261 F.3d at 905; Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001); see also Hrdlicka, 631 F.3d at 1050; Prison Legal News v. Lehman, 397 F.3d 692, 700 (9th Cir. 2005) (explaining that prison officials may not prohibit receipt of non-subscription bulk mail or catalogs because “it is the fact that a request was made by the recipient, and not the fact that the recipient is paying to receive the publication, that is important.”).

When prison officials intercept publications, it “must be accompanied by minimum procedural safeguards.”  Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (citation omitted); see also Krug v. Lutz, 329 F.3d 692, 696–98 (9th Cir. 2003).

A county’s “ban on inmates’ receipt of unsolicited commercial mail” has been found to not violate the First Amendment.  See Crime Justice & Am., Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017).  The court determined that the ban, which reduced inmate access to paper they were likely to misuse, was reasonably related to a legitimate penological objective of jail security, that there were sufficient alternative means of exercising the right that remained available to prison inmates, that the impact of accommodating the publisher would have significant impact on jail resources, and that the ban on the unsolicited commercial mail was not an exaggerated response to the problems posed by paper in the jail. See id.. at 973–78.

(d)     Telephones

“Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations.”  Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam) (concluding no right to a specific phone rate).

(e)      Access to Media

Prison officials may prohibit face-to-face interviews with journalists and may restrict entry of journalists into the prison environment, see Saxbe v. Wash. Post Co., 417 U.S. 843, 850 (1974); Pell v. Procunier, 417 U.S. 817, 826 (1974); Cal. First Amendment Coalition v. Woodford, 299 F.3d 868, 874–75 (9th Cir. 2002), as “long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved,” Pell, 417 U.S. at 826.  Cf. Cal. First Amendment Coal., 299 F.3d at 870–71 (holding that the public and the press have a “First Amendment right to view executions from the moment the condemned is escorted into the execution chamber.”).

(f)      Associational Rights

The prisoner’s incarcerated status, by necessity, restricts the scope of the prisoner’s First Amendment associational rights.  See Overton v. Bazzetta, 539 U.S. 126, 131–32 (2003) (holding that prison officials’ restrictions on noncontact visits bore a rational relation to legitimate penological interests); Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125–26 (1977) (holding that prison officials’ prohibition of prison labor unions is reasonably related to legitimate interests in security); see also Dunn v. Castro, 621 F.3d 1196, 1201–05 (9th Cir. 2010); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).

(g)     Jailhouse Lawyers

A prisoner’s legal assistance to other inmates deserves no more First Amendment protection than any other prisoner speech.  See Shaw v. Murphy, 532 U.S. 223, 231–32 (2001).

(h)     Prison Grievances

“The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities and as well as a right of meaningful access to the courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); see also Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances.”); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (“[P]risoners have a First Amendment right to file prison grievances.”); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).  “Retaliation against prisoners for their exercise of this right is itself a constitutional violation, and prohibited as a matter of ‘clearly established law.’”  Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 567 and Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995)); see also Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016) (recognizing that “a corrections officer may not retaliate against a prisoner for exercising his First Amendment right to report staff misconduct”).  There are five basic elements for a viable claim of First Amendment retaliation in the prison context:

(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.

Brodheim, 584 F.3d at 1269 (quoting Rhodes, 408 F.3d at 567–68).  See also Shepard, 840 F.3d at 688 (determining that fact issues remained as to whether officer retaliated against inmate); Jones, 791 F.3d at 1035–36 (concluding that Jones made a showing in support of his retaliation claim sufficient to overcome summary judgment); Wood v. Yordy, 753 F.3d 899, 904–05 (9th Cir. 2014) (holding inmate failed to establish prison officials retaliated against him).

b.      Religion Claims

(1)     Free Exercise Clause

“The right to exercise religious practices and beliefs does not terminate at the prison door.  The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.”  McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (citations omitted); see also O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015) (upholding prison classifications used to cell inmates with individuals of a different race, where placement allegedly interferes with inmate’s religious practice); Shakur v. Schriro, 514 F.3d 878, 883–84 (9th Cir. 2008); Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993); Friend v. Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991).  In order to implicate the Free Exercise Clause, the prisoner’s belief must be both sincerely held and rooted in religious belief.  See Shakur, 514 F.3d at 884–85.  “A person asserting a free exercise claim must show that the government action in question substantially burdens the person’s practice of her religion.” Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015).

In analyzing the legitimacy of regulation of prisoners’ religious expression, the court should utilize the Turner factors.  See O’Lone, 482 U.S. at 349; Shakur, 514 F.3d at 884 (analyzing Muslim inmate’s challenge to the denial of his request for kosher meat, which he believed would be consistent with Islamic Halal requirements); Henderson v. Terhune, 379 F.3d 709, 713 (9th Cir. 2004); Mayweathers v. Newland, 258 F.3d 930, 937–38 (9th Cir. 2001) (analyzing Muslim inmates’ challenge to prison work rule and limiting O’Lone to its facts); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), abrogated on other grounds by Shakur, 514 F.3d at 884–85; Anderson v. Angelone, 123 F.3d 1197, 1198 (9th Cir. 1997); Ward, 1 F.3d at 876–77; Friend, 923 F.2d at 127.  For a description of the Turner factors, see supra III.A.1.a.(1).

In light of the evidence submitted in support of a legitimate penological interest in security, the Ninth Circuit has upheld policies prohibiting long hair, see Henderson, 379 F.3d at 713–14; growing beards, see Friedman v. Arizona, 912 F.2d 328, 331–32 (9th Cir. 1990), superseded by statute on other grounds; preaching of racial hatred and violence, see McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987); wearing headbands, see Standing Deer v. Carlson, 831 F.2d 1525, 1528–29 (9th Cir. 1987); attendance of sweat-lodge ceremonies by Native American prisoners in disciplinary segregation, see Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987); and inmate-led religious services, see Anderson, 123 F.3d at 1198–99.  In light of the evidence of generalized safety concerns, the Ninth Circuit upheld a prohibition on prisoners keeping candles in their cells.  See Ward, 1 F.3d at 879.  The Ninth Circuit also concluded that the interest in a simplified food service may allow a prison to provide a pork-free diet, instead of a fully kosher diet, to an Orthodox Jewish inmate.  See id. at 877–79; see also Resnick v. Adams, 348 F.3d 763, 769 (9th Cir. 2003) (concluding that the interest in “the orderly administration of a program that allows federal prisons to accommodate the religious dietary needs of thousands of prisoners” allows a prison to require submission of a standard prison form in order to receive kosher food).  Prison officials have a legitimate interest in getting inmates to their work and educational assignments.  See Mayweathers, 258 F.3d at 938.

With respect to the connection between the regulation of religious exercise and the legitimate penological interest, evidence concerning anticipated problems, even though no actual problems have arisen from the prisoner’s conduct, is sufficient to meet this standard.  See Friedman, 912 F.2d at 332–33; Standing Deer, 831 F.2d at 1528.  For a further discussion of the burden of proof regarding the connection between the challenged regulation and the legitimate penological interest it purportedly serves, see supra III.A.1.a.(1).

Under the second Turner factor – availability of alternatives – “[t]he relevant inquiry … is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, [the court must] determine whether the inmates have been denied all means of religious expression.”  Ward, 1 F.3d at 877 (citing O’Lone, 482 U.S. at 351–52); see also Mayweathers, 258 F.3d 938; Friend, 923 F.2d at 128; cf. Allen, 827 F.2d at 568 (stating that prisoner must establish denial of access to a religious ceremony to support a free exercise claim).  “Also relevant to the evaluation of the second factor is a distinction O’Lone had no occasion to make: the distinction between a religious practice which is a positive expression of belief and a religious commandment which the believer may not violate at peril of his [or her] soul.”  Ward, 1 F.3d at 878; see also Henderson, 379 F.3d at 714 (explaining that where a prisoner, by cutting his hair, would be considered “‘defiled’ and therefore unworthy or unable to participate in the other major practices of his religion,” the prisoner would “thus be denied all means of religious expression.”).  Compare Ward, 1 F.3d at 878 (concluding that where prison officials have deprived Orthodox Jewish prisoner of kosher diet, a rabbi, and religious services, the second factor weighs in the prisoner’s favor), with id. at 880 (concluding that prisoner’s request not to be transported on the Sabbath was not reasonable under second factor because prisoner had many opportunities to observe the Sabbath).

Under the third Turner factor – the effect of the accommodation on prison staff and other inmates – the court may consider security concerns.  See McCabe, 827 F.2d at 637.  The court may also consider “an appearance of favoritism that could generate resentment and unrest.”  Standing Deer, 831 F.2d at 1529 (citing O’Lone, 482 U.S. at 353); see also Mayweathers, 258 F.3d at 938; Ward, 1 F.3d at 880; Friend, 923 F.2d at 128.  The appearance of favoritism cannot be dispositive, however, because such appearance will be present in every case where accommodations are made.  See Henderson, 379 F.3d at 714; Ward, 1 F.3d at 878.

Finally, with respect to the fourth Turner factor – presence of alternative regulations that will accommodate the religious expression – prison officials do not bear the burden of disproving the availability of alternatives.  See O’Lone, 482 U.S. at 350.

Although the prisoner’s free exercise right is still subject to the legitimate penological interests of the prison, an inmate who adheres to a minority religion must be given a “reasonable opportunity of pursuing his [or her] faith comparable to the opportunity afforded fellow prisoners who adhere to the conventional religious precepts.”  Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam); see also Jones v. Bradley, 590 F.2d 294, 296 (9th Cir. 1979).  “[R]easonable opportunities,” however, are not the same as identical treatment.  Cruz, 405 U.S. at 322 n.2; Allen, 827 F.2d at 568; Jones, 590 F.2d at 296.

“Inmates … have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.”  McElyea, 833 F.2d at 198; see also Ashelman v. Wawrzaszek, 111 F.3d 674, 677–78 (9th Cir. 1997); Ward, 1 F.3d at 877.  This rule does not apply if dietary requirements do not stem from religious sentiments.  See Johnson v. Moore, 948 F.2d 517, 520 (9th Cir. 1991) (per curiam).

Prison officials have no affirmative obligations to provide appropriate clergy for inmates.  See Ward, 1 F.3d at 880; Reimers v. Oregon, 863 F.2d 630, 631–32 (9th Cir. 1989); Allen, 827 F.2d at 568–69.

(2)     Religious Freedom Restoration Act (42 U.S.C §§ 2000bb to 2000bb-4); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5

The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 (“RFRA”), which imposes a more stringent standard on government regulations that burden religious expression, has been declared unconstitutional as applied to local and state laws, because it exceeded Congress’ powers.  See Freeman v. Arpaio, 125 F.3d 732, 735–36 (9th Cir. 1997) (discussing effect of City of Boerne v. Flores, 521 U.S. 507 (1997)), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878, 883–84 (9th Cir. 2008).  The Supreme Court has stated that the RFRA “continues to apply to the Federal Government.”  Sossamon v. Texas, 563 U.S. 277, 281 (2011) (citing Cutter v. Wilkinson, 544 U.S. 709, 715 (2005)).  Additionally, the Ninth Circuit has held that the RFRA remains operative “as applied in the federal realm.” Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002).

Congress resurrected the RFRA’s standards as applied to state prisons using its power under the Spending and Commerce Clauses.  See Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5 (2000) (“RLUIPA”); Cutter, 544 U.S. at 714 (explaining that “RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens … .”); Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (explaining that Congress passed RLUIPA in response to the Supreme Court’s partial invalidation of the RFRA).  Section 3 of the RLUIPA provides that “[no] [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.”  42 U.S.C. § 2000cc-1(a); see also Cutter, 544 U.S. at 715; Florer, 639 F.3d at 921–22; Khatib v. Cty. of Orange, 639 F.3d 898, 900 (9th Cir. 2011) (en banc).  “RLUIPA thus allows prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA.”  Holt v. Hobbs, 135 S. Ct. 853, 860 (2015) (internal quotation marks and citation omitted).

The RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”  42 U.S.C. § 2000cc-5(7)(A); see also Holt, 135 S. Ct. at 860; Cutter, 544 U.S. at 715.  This concept is to be construed “‘in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.’ … Congress stated that RLUIPA ‘may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’” Holt, 135 S. Ct. at 860 (quoting § 2000cc–3(g)).

“RLUIPA’s requirements are not unlimited.  If inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, a prison system may resist the imposition.”  Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018).

The “inquiry to determine whether a defendant acted ‘under color of state law’ is the same under RLUIPA as it is under § 1983.”  Florer, 639 F.3d at 922.

As opposed to traditional First Amendment jurisprudence, where prisoners’ free exercise claims are analyzed under the deferential rational basis standard of Turner v. Safley, 482 U.S. 78 (1987), “RLUIPA requires the government to meet the much stricter burden of showing that the burden it imposes on religious exercise is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”  Greene v. Solano Cty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (citation and internal quotation marks omitted); see also Holt, 135 S. Ct. at 860; Alvarez v. Hill, 518 F.3d 1152, 1156–57 (9th Cir. 2008).

The Supreme Court has held that “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver.”  Sossamon v. Texas, 563 U.S. 277, 293 (2011); cf. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1168–69 (9th Cir. 2011) (distinguishing Sossamon on basis that it is grounded on Eleventh Amendment authority, and explaining that the City of Yuma could be liable for monetary damages under RLUIPA because the Eleventh Amendment requirement does not apply to municipalities).

The Ninth Circuit has held that RLUIPA claims for damages may proceed only for injunctive relief against defendants acting within their official capacities.  See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (RLUIPA does not contemplate liability of government employees in individual capacity); see also Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1114 (9th Cir. 2010) (“The Eleventh Amendment bars [a prisoner’s] suit for official-capacity damages under RLUIPA.”).

The Ninth Circuit has held that “RLUIPA claims need satisfy only the ordinary requirements of notice pleading.”  Alvarez, 518 F.3d at 1159 (explaining that “[u]nder this pleading standard, it is sufficient that the complaint, alone or supplemented by any subsequent filings before summary judgment, provides the defendant fair notice that the plaintiff is claiming relief under RLUIPA as well as the First Amendment.”).

“RLUIPA incorporates the administrative exhaustion requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).”  Fuqua, 890 F.3d at 844.

For cases applying RLUIPA to prisoners’ free exercise claims, see Holt v. Hobbs, 135 S. Ct. 853, 859 (2015) (grooming policy substantially burdened prisoner’s exercise of religion); Fuqua v. Ryan, 890 F.3d 838, 844–50 (9th Cir. 2018); Walker v. Beard, 789 F.3d 1125, 1134–37 (9th Cir. 2015) (prisoner’s rights not violated under RLUIPA); Florer, 639 F.3d at 921–27; Shakur, 514 F.3d at 888–91; Greene, 513 F.3d at 986–90; Warsoldier v. Woodford, 418 F.3d 989, 994–1001 (9th Cir. 2005); see also Khatib, 639 F.3d at 901–05 (applying RLUIPA to former detainee who was required to remove headscarf in public against her religious beliefs and practice while held in county courthouse holding facility).

2.       Fourth Amendment

a.       General Principles

The reasonableness of searches and seizures by prison officials should be analyzed in light of the Turner factors.  See Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997); Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990); Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir. 1988).  For a description of the Turner factors, see supra III.A.1.a.(1).  To determine if a policy violates the Fourth Amendment right to be free from unreasonable searches, the court considers “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.”  Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922 (9th Cir. 2017) (quotation marks and citation omitted).  Prison officials must present evidence that a search served a legitimate penological interest.  See Walker, 917 F.2d at 386–88.  Note that each case “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.”  Bell v. Wolfish, 441 U.S. 520, 559 (1979).

b.      Cell Searches

Prisoners have no Fourth Amendment right of privacy in their cells.  See Hudson v. Palmer, 468 U.S. 517, 525–26 (1984); Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996); Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir. 1994) (per curiam); Nakao v. Rushen, 766 F.2d 410, 412 (9th Cir. 1985); see also Seaton v. Mayberg, 610 F.3d 530, 534 (9th Cir. 2010) (recognizing a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the continual surveillance of inmates and their cells required to ensure security and internal order).

c.       Body Searches

Prisoners retain a very limited Fourth Amendment right to shield themselves from being observed nude.  See Michenfelder v. Sumner, 860 F.2d 328, 333–34 (9th Cir. 1988); cf. Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998) (per curiam) (relying on prisoners’ privacy right in not being viewed by guards of the opposite sex to conclude that gender may be a bona fide occupational qualification in a Title VII sex discrimination action brought by male guards).  This right is not violated if guards only make casual observations of the prisoner or if the observations are made from a distance.  See Michenfelder, 860 F.2d at 334; Grummett, 779 F.2d at 495–96.

Generally, strip searches do not violate the Fourth Amendment rights of prisoners.  See Michenfelder, 860 F.2d at 332–33.  Strip searches that are “excessive, vindictive, harassing, or unrelated to any legitimate penological interest,” however, may be unconstitutional.  Id. at 332.  In the case of a pretrial detainee, the Ninth Circuit determined in Byrd v. Maricopa Cty. Sheriff’s Department, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc), that a cross-gender, strip search was unreasonable as a matter of law, where the female cadet touched the detainee’s inner and outer thighs, buttocks, and genital area.  629 F.3d at 1142.

The Supreme Court in Florence v. Board of Chosen Freeholders, 566 U.S. 318, 322–23 (2012), addressed the practice of strip searches of detainees at jails, concluding that the searches at issue did not violate the Fourth Amendment.  In so holding, the Court “instructed courts to ‘defer to the judgment of correctional officials’ when the officials conduct ‘strip searches’ of detainees admitted to the general population of a jail facility.”  Shorter v. Baca, 895 F.3d 1176, 1187 (9th Cir. 2018) (quoting Florence, 566 U.S. at 322–23); see also Florence, 566 U.S. at 322–23 (no violation where detainees passed through metal detector, were instructed to remove clothing while an officer looked for body markings, wounds, and contraband, and were required to lift genitals, turn around, and cough in a squatting position as part of the process).  However, the Ninth Circuit concluded that deference to jail officials is unwarranted where search methods are unreasonable.  See Shorter, 895 F.3d at 1189 (concluding that the search procedure that required noncompliant pretrial detainees to be chained to their cell doors for hours at a time, virtually unclothed, without access to meals, water, or clothing, and visible to guards on patrol, was humiliating and an extreme invasion of privacy, and thus, that deference was not due to the jail officials).

The Ninth Circuit has not yet recognized a Fourth Amendment right of prisoners not to be subjected to cross-gender, clothed, body searches.  See Jordan v. Gardner, 986 F.2d 1521, 1524–25 (9th Cir. 1993) (en banc) (holding prison policy of requiring male guards to conduct random, suspicionless clothed body searches on female prisoners violated Eighth Amendment); Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985).  However, in Byrd v. Maricopa Cty. Sheriff’s Department, 629 F.3d 1135, 1142 (9th Cir. 2011) (en banc), this court did conclude that a cross-gender, strip search of a pretrial detainee was unreasonable as a matter of law given the nature of the search in that case.

Routine visual body cavity searches do not violate prisoners’ Fourth Amendment rights.  See Bell v. Wolfish, 441 U.S. 520, 558 (1979); Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Michenfelder, 860 F.2d at 332; Rickman v. Avaniti, 854 F.2d 327, 328 (9th Cir. 1988).  Moreover, it was not clearly established, as of September 1994, that prisoners had a right for such searches to be performed by prison officials of the same gender.  See Somers v. Thurman, 109 F.3d 614, 620–22 (9th Cir. 1997) (explaining that it was “highly questionable even as of [March 25, 1997] whether prison inmates have a Fourth Amendment right to be free from routine unclothed searches by officials of the opposite sex, or from viewing of their unclothed bodies by officials of the opposite sex.”).  A digital body cavity search, however, must “be conducted with reasonable cause and in a reasonable manner,” Vaughan v. Ricketts, 950 F.2d 1464, 1468–69 (9th Cir. 1991), to serve a legitimate penological interest, see Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir. 1988); see also Somers, 109 F.3d at 622 n.5.

Extraction of blood to create a DNA bank for prisoners convicted of a felony, a crime of violence, a sexual abuse crime, or an attempt or conspiracy to commit a felony does not violate prisoners’ Fourth Amendment rights.  See Hamilton v. Brown, 630 F.3d 889, 894 (9th Cir. 2011); United States v. Kriesel, 508 F.3d 941, 943, 946–47 (9th Cir. 2007); United States v. Kincade, 379 F.3d 813, 831–32 (9th Cir. 2004) (en banc).

Drug testing through urinalysis can be a reasonable search under the Fourth Amendment.  See Thompson, 111 F.3d at 702–03 (concluding that search was reasonable where a large number of prisoners were tested, the prisoners were selected using legitimate criteria, and the sample was collected outside the presence of other inmates and in the presence of a guard of the same gender).

d.      Phone-Call Monitoring

“[N]o prisoner should reasonably expect privacy in his [or her non-legal] outbound telephone calls.”  United States v. Van Poyck, 77 F.3d 285, 290–91 (9th Cir. 1996); see also United States v. Monghur, 588 F.3d 975, 979, 981 (9th Cir. 2009) (recognizing that there is no expectation of privacy in telephone calls made from jail, but determining that defendant did not waive expectation of privacy in a closed container stored in an apartment that was not specifically identified in the telephone calls).

3.       Sixth Amendment

“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.’”  Nordstrom v. Ryan (Nordstrom I), 762 F.3d 903, 909 (9th Cir. 2014) (quoting U.S. Const. amend. VI).  Deliberate government interference with the confidential relationship between a criminal defendant and defense counsel violates the Sixth Amendment right to counsel if it substantially prejudices the criminal defendant.”  Nordstrom I, 762 F.3d at 909.

“[P]risoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.”  Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017).  “[T]he practice of requiring an inmate to be present when his legal mail is opened is a measure designed to prevent officials from reading the mail,” protecting an inmate’s Sixth Amendment right to confer privately with counsel.  Nordstrom, 762 F.3d at 910; see also Mangiaracina, 849 F.3d at 1196.  Nordstrom I, held that while prison officials may inspect legal-outgoing mail in the inmate’s presence, prison officials may not read it.  762 F.3d at 910.  As explained in Nordstrom v. Ryan (Nordstrom II), 856 F.3d 1265, 1272 (9th Cir. 2017), “a proper inspection entails looking at a letter to confirm that it does not include suspicious features such as maps, and making sure that illegal goods or items that pose a security threat are not hidden in the envelope.” A policy that required prison staff to “inspect mail page-by-page to ensure that a letter concerns only legal subjects” goes beyond the level of inspection approved in Nordstrom I.  Nordstrom II, 856 F.3d at 1271–72 (holding that policy and practice of scanning inmate’s outgoing legal mail violated Sixth Amendment right to counsel).  See also Mangiaracina, 849 F.3d at 1196–97 (concluding pretrial detainee alleged sufficient fact to state claim for improper opening of legal mail).

4.       Eighth Amendment

a.       General Principles

The Eighth Amendment prohibits the imposition of cruel and unusual punishments and “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency.”  Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation and internal quotation marks omitted); see also Hutto v. Finney, 437 U.S. 678, 685 (1978); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979).  “No static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’”  Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

“The Constitution ‘does not mandate comfortable prisons.’”  Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes, 452 U.S. at 349); see also Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).  The Eighth Amendment is also not a mandate for broad prison reform or excessive federal judicial involvement.  See Hallett, 296 F.3d at 745; Hoptowit, 682 F.2d at 1246.

          [A] prison official violates the Eighth Amendment only when two requirements are met.  First, the deprivation alleged must be, objectively, ‘sufficiently serious[;]’ a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities’[.]  …

          The second requirement follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’  To violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of mind.’

Farmer, 511 U.S. at 834 (citations omitted); see also Hope v. Pelzer, 536 U.S. 730, 737–38 (2002); Wilson v. Seiter, 501 U.S. 294, 299–300 (1991) (discussing subjective requirement); Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (“For an inmate to bring a valid § 1983 claim against a prison official for a violation of the Eighth Amendment, he must [ ] objectively show that he was deprived of something sufficiently serious [and] make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health or safety.”); Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002); Hallett, 296 F.3d at 744; Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995); Anderson v. Cty. of Kern, 45 F.3d 1310, 1312–13 (9th Cir. 1995).  See also Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (“Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to [a prisoner’s] serious medical needs.” (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

To prove deliberate indifference, subjective recklessness is required, that is, an official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015) (quotation marks and citation omitted).

Both the Supreme Court and the Ninth Circuit have held that the Turner factors are not relevant to Eighth Amendment analyses.  See  Johnson v. California, 543 U.S. 499, 511 (2005); Ward v. Walsh, 1 F.3d 873, 876–77 (9th Cir. 1993); Grenning v. Miller-Stout, 739 F.3d 1235, 1240 (9th Cir. 2014); Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993) (en banc); see also Spain, 600 F.2d at 193–94.

Prior to Peralta, the Ninth Circuit had held that neither cost nor the prison’s security interests are relevant to the finding of an Eighth Amendment violation, although they are relevant to the fashioning of a remedy.  See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 473 (9th Cir. 1989) (security interests); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (costs); Hoptowit, 682 F.2d at 1247 (relevant to fashioning a remedy); Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (security interests; relevant to fashioning a remedy); Spain, 600 F.2d at 200 (costs).  In Peralta, the en banc court explained that while “[t]he Supreme Court has not said whether juries and judges may consider a lack of resources as a defense in section 1983 actions[,]” it  has instructed that prison officials are not deliberately indifferent unless they act wantonly, which is dependent upon the constraints facing the officials. Peralta, 744 F.3d at 1082.  The Peralta court held that it is appropriate to consider the constraints, including lack of resources, under which an individual doctor who lacks authority over budgeting decisions is operating when determining whether such an official is liable for money damages in a section 1983 action.  See Peralta, 744 F.3d at 1082–84.  In so holding, the court overruled Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986) and Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012), to the extent they could be read to apply to monetary damages against an official who lacks authority over budgeting decisions. See Peralta, 744 F.3d at 1083.

Relevant to the kinds of injuries that may give rise to an Eighth Amendment claim, the Prison Litigation Reform Act states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury while in custody without a prior showing of physical injury … .”  42 U.S.C. § 1997e(e).  The PLRA contains a similar provision amending the Federal Tort Claims Act.  See 28 U.S.C. § 1346(b)(2).  For further discussion of these provisions, see infra IV.F.

Note “Eighth Amendment protections apply only once a prisoner has been convicted of a crime, while pretrial detainees are entitled to the potentially more expansive protections of the Due Process Clause of the Fourteenth Amendment.”  Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016); see also Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 924 n.2 (9th Cir. 2017) (“The Fourteenth Amendment, and not the Eighth Amendment, governs cruel and unusual punishment claims of pretrial detainees.”).  While the Eighth Amendment standard to prove deliberate indifference is clear (the official must have a subjective awareness of the risk of harm), the deliberate indifference standard under the Fourteenth Amendment is less clear.  See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017).  In Castro, the Ninth Circuit addressed the Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015), which applied an objective deliberate indifference standard to the excessive force claim of a pretrial detainee.  Castro, 833 F.3d at 1068–70.  As explained in CastroKingsley “rejected the notion that there exists a single ‘deliberate indifference’ standard applicable to all § 1983 claims, whether brought by pretrial detainees or by convicted prisoners.”  Castro, 833 F.3d at 1069 (recognizing that Kingsley did not limit its holding to “force,” and applying objective standard to “failure-to-protect” claim of pretrial detainee, overruling prior precedent that identified a single deliberate indifference standard for all § 1983 claims).

b.      Safety

“Prison officials have a duty to take reasonable steps to protect inmates from physical abuse.”  Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005); Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001).

To establish a violation of this duty, the prisoner must establish that prison officials were “deliberately indifferen[t]” to serious threats to the inmate’s safety.  See Farmer, 511 U.S. at 834.[5]  To demonstrate that a prison official was deliberately indifferent to a serious threat to the inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate … safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.”  Farmer, 511 U.S. at 837; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (explaining that subjective deliberate indifference standard under the Eighth Amendment is well established), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017); Simmons v. Navajo Cty., 609 F.3d 1011, 1017 (9th Cir. 2010); Jeffers v. Gomez, 267 F.3d 895, 913 (9th Cir. 2001) (per curiam); Anderson v. Cty. of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).  To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge.  See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).  Note that “[w]hile a claim of deliberate indifference against a prison official employs a subjective standard, Farmer, 511 U.S. at 837, 114 S. Ct. 1970, … an objective standard applies to municipalities ‘for the practical reason that government entities, unlike individuals, do not themselves have states of mind, Castro, 833 F.3d at 1076 [ ].’” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248–49 (9th Cir. 2016).

Prison officials may not escape liability because they cannot, or did not, identify the specific source of the risk; the serious threat can be one to which all prisoners are exposed.  See Farmer, 511 U.S. at 843.

Prison officials may, however, avoid liability by presenting evidence that they lacked knowledge of the risk.  See Farmer, 511 U.S. at 844; Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1187–88 (9th Cir. 2002), overruled on other grounds by Castro, 833 F.3d at 1076.  Moreover, prison officials may avoid liability by presenting evidence of a reasonable, albeit unsuccessful, response to the risk.  See Farmer, 511 U.S. at 844–45; see generally Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986).

To grant injunctive relief concerning serious risks to the inmate’s safety, the court must find that at the time the relief will be granted there is still a serious, present risk to the inmate and that the prison officials are still acting with deliberate indifference to that risk.  See Farmer, 511 U.S. at 845–47; see also Helling v. McKinney, 509 U.S. 25, 35–36 (1993) (discussing injunctive relief where there is a threat of harm to inmate’s health).  For a discussion of limitations on injunctive relief under the Prison Litigation Reform Act, see supra I.E.2.b, and infra IV.G.

The Supreme Court has held that placing a pre-operative transsexual, who acts and dresses effeminately, in the prison’s general population evinced deliberate indifference to an inmate’s safety.  See Farmer, 511 U.S. at 848–49; cf. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (concluding that sexual abuse of transsexual prisoner by prison guard violated the Eighth Amendment); see also Redman v. Cty. of San Diego, 942 F.2d 1435, 1444–45 (9th Cir. 1991) (en banc) (concluding that placing a young pre-trial detainee in a cell with a known, aggressive sexual offender was deliberate indifference to the detainee’s safety) abrogated by Farmer v. Brennan, 511 U.S. 825 (1994).

The Ninth Circuit has held that allegations that prison officials called a prisoner a “snitch” in the presence of other inmates were sufficient to state a claim of deliberate indifference to an inmate’s safety.  See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989).  But see Morgan v. MacDonald, 41 F.3d 1291, 1293–94 (9th Cir. 1994) (rejecting Eighth Amendment claim where prisoner who had been labeled a snitch had not been retaliated against by other inmates).  The Ninth Circuit has also held that allegations that prison officials knew of the risks of religiously motivated attacks on inmates, and in fact, created the risks and facilitated the attacks, were sufficient to state a claim of deliberate indifference to an inmate’s safety.  See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).  Where jail officials placed a pre-trial detainee who was using crutches in a unit with non-handicapped accessible showers and the detainee complained about falling, jail officials demonstrated deliberate indifference to the detainee’s safety.  See Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998).  But see id. at 1129–30 (holding that no deliberate indifference existed where detainee did not inform jail officials of problems with managing his crutches and his food tray).  Where prison officials placed an African-American prisoner in an integrated exercise yard where frequent attacks had taken place, made jokes about the possibility of attacks and failed to intervene quickly when an attack did occur, they violated their Eighth Amendment duty to protect the inmate.  See Robinson, 249 F.3d at 867.

c.       Medical Needs

(1)     General Principles

          The government has an “obligation to provide medical care for those whom it is punishing by incarceration,” and failure to meet that obligation can constitute an Eighth Amendment violation cognizable under § 1983. Estelle v. Gamble, 429 U.S. 97, 103–05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must show “deliberate indifference” to his “serious medical needs.” Id. at 104, 97 S. Ct. 285. This includes “both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, [681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)].

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).  See also Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“[D]eliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.”); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998); Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995); Anderson v. Cty. of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).  This rule applies to “physical, dental, and mental health.”  Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see also Hallett, 296 F.3d at 744, 746–48 (discussing prison officials’ treatment of mentally ill inmates); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (noting importance of providing dental care to prisoners).  Prisoners must also be protected from serious risks to their health.  See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Helling v. McKinney, 509 U.S. 25, 33–34 (1993); Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995).

“The requirement of deliberate indifference is less stringent in cases involving a prisoner’s medical needs than in other cases involving harm to incarcerated individuals because ‘[t]he State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.’” McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)).  However, in some cases, it may be important to balance the “competing tensions” between “the prisoners’ need for medical attention and the government’s need to maintain order and discipline,” in determining the prison officials’ subjective intent.  Clement, 298 F.3d at 905 n.4 “In deciding whether there has been deliberate indifference to an inmate’s serious medical needs, [the court] need not defer to the judgment of prison doctors or administrators.” Hunt, 865 F.2d at 200 (citation omitted).  “[S]tate prison authorities have wide discretion regarding the nature and extent of medical treatment.”  Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986), overruled by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (overruling Jones, “[t]o the extent Jones … can be read to apply to monetary damages against an official who lacks authority over budgeting decisions … .”).  “Budgetary constraints, however, do not justify cruel and unusual punishment.”  Jones, 781 F.2d at 771.  For a general discussion of “deliberate indifference,” see supra III.A.4.a.

“[T]o show deliberate indifference, the plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to the plaintiff’s health.”  Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (internal quotation marks and citation omitted).  “Deliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment” Id. (internal quotation marks and citation omitted).

“A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”  McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104); see also Jett, 439 F.3d at 1096; Clement, 298 F.3d at 904; Doty v. Cty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).  The court should consider whether a reasonable doctor would think that the condition is worthy of comment, whether the condition significantly affects the prisoner’s daily activities, and whether the condition is chronic and accompanied by substantial pain.  See Lopez, 203 F.3d at 1131–32; Doty, 37 F.3d at 546 n.3 (citing McGuckin, 974 F.2d at 1059–60).

“[C]laims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard.”  Gordon v. Cty. of Orange, 888 F.3d 1118, 1122–25 (9th Cir. 2018) (emphasis added) (relying on Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017), and concluding that the subjective deliberate indifference standard under the Eighth Amendment did not apply to pretrial detainee’s inadequate medical care claim under the Fourteenth Amendment).

(2)     Denial of, Delay of, or Interference with Treatment

“Denial of medical attention to prisoners constitutes an [E]ighth [A]mendment violation if the denial amounts to deliberate indifference to serious medical needs of the prisoners.”  Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

Delay of, or interference with, medical treatment can also amount to deliberate indifference.  See Jett, 439 F.3d at 1096; Clement, 298 F.3d at 905; Hallett, 296 F.3d at 744; Lopez, 203 F.3d at 1131; Jackson, 90 F.3d at 332; McGuckin, 974 F.2d at 1059; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).  Where the prisoner is alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner must show that the delay led to further injury.  See Hallett, 296 F.3d at 745–46; McGuckin, 974 F.2d at 1060; Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).

Where the prisoner alleged that a three-month delay in replacing dentures was causing pain, this was sufficient to state a claim of deliberate indifference to serious medical needs.  See Hunt v. Dental Dep’t, 865 F.2d 198, 200–01 (9th Cir. 1989).  Where the prisoner alleged that an almost two-month delay in receiving any treatment for a fractured thumb, and a nineteen-month delay in being seen by a hand specialist, had caused pain and the diminished use of his hand because the fracture had healed improperly, this was sufficient to state a claim of deliberate indifference to serious medical needs.  See Jett, 439 F.3d at 1097–98.  Where prison officials used pepper spray to quell a fight and the pepper spray vapors migrated into other inmates’ cells, a four-hour delay in providing showers and medical attention to inmates suffering from harmful effects from the pepper spray vapors may violate the Eighth Amendment.  See Clement, 298 F.3d at 905–06.

Prison officials “must provide an outgoing prisoner who is receiving and continues to require medication with a supply sufficient to ensure that [the prisoner] has that medication available during the period of time reasonably necessary to permit [the prisoner] to consult a doctor and obtain a new supply.”  Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999).

(3)     Qualified Medical Personnel

If the prison’s medical staff is not competent to examine, diagnose, and treat inmates’ medical problems, they must “refer prisoners to others who can.”  Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (per curiam); Toussaint v. McCarthy, 801 F.2d 1080, 1111–12 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

(4)     Informing Medical Personnel of Medical Problems

“Prison officials show deliberate indifference to serious medical needs if prisoners are unable to make their medical problems known to the medical staff.”  Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

(5)     Negligence/Medical Malpractice

“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.  Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”  Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Toguchi v. Chung, 391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (stating that “[d]eliberate indifference is a high legal standard.”); Clement v. Gomez, 298 F.3d 898, 904–05 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998); Anderson v. Cty. of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

Isolated occurrences of neglect do not constitute deliberate indifference to serious medical needs.  See Jett, 439 F.3d at 1096; McGuckin, 974 F.2d at 1060; O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); 18 Unnamed “John Smith” Prisoners v. Meese, 871 F.2d 881, 883 n.1 (9th Cir. 1989); Toussaint, 801 F.2d at 1111.  Even gross negligence is insufficient to establish deliberate indifference to serious medical needs.  See Toguchi, 391 F.3d at 1060.

(6)     Difference of Opinion about Medical Treatment

A difference of opinion between medical professionals concerning the appropriate course of treatment generally does not amount to deliberate indifference to serious medical needs.  See Toguchi v. Chung, 391 F.3d 1051, 1059–60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).  To establish that a difference of opinion amounted to deliberate indifference, the prisoner “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” and “that they chose this course in conscious disregard of an excessive risk to [the prisoner’s] health.”  See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016); Toguchi, 391 F.3d at 1058; Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (stating that prisoner may demonstrate deliberate indifference if prison officials relied on the contrary opinion of a non-treating physician), abrogated on other grounds as stated in Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002), overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A difference of opinion between the physician and the prisoner concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs.  See Hamby, 821 F.3d at 1092 (“Eighth Amendment doctrine makes clear that ‘[a] difference of opinion between a physician and the prisoner—or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference.’” (citation omitted)); Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332; Franklin v. Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).  Similarly, a prisoner has no constitutional right to outside medical care to supplement the medical care provided by the prison even where the prisoner is willing to pay for the treatment.  See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).

(7)     Fees for Medical Services

Charging prisoners fees for medical services does not violate the Eighth Amendment unless it prevents prisoners from receiving medical care.  See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985) (per curiam).

(8)     Transfers

Where the record establishes that the prisoner will eventually be transferred, a delay in transferring a prisoner to another facility where a medically necessary diet is available does not violate the Eighth Amendment.  See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

d.      Conditions of Confinement

(1)     General Principles

“It is undisputed that the treatment a prisoner receives in prison and the conditions under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.”  Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Conditions of confinement may, consistent with the Constitution, be restrictive and harsh.  See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc).  Prison officials must, however, provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.”  Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Wright v. Rushen, 642 F.2d 1129, 1132–33 (9th Cir. 1981).

When determining whether the conditions of confinement meet the objective prong of the Eighth Amendment analysis, the court must analyze each condition separately to determine whether that specific condition violates the Eighth Amendment.  See Toussaint, 801 F.2d at 1107; Wright, 642 F.2d at 1133.  “Some conditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise – for example, a low cell temperature at night combined with a failure to issue blankets.”  Wilson v. Seiter, 501 U.S. 294, 304 (1991); see also Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010); Osolinski, 92 F.3d at 938–39; Toussaint, 801 F.2d at 1107; Wright, 642 F.2d at 1133.  When considering the conditions of confinement, the court should also consider the amount of time to which the prisoner was subjected to the condition.  See Hutto v. Finney, 437 U.S. 678, 686–87 (1978); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).

As to the subjective prong of the Eighth Amendment analysis, prisoners must establish prison officials’ “deliberate indifference” to unconstitutional conditions of confinement to establish an Eighth Amendment violation.  See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303.  For a description of “deliberate indifference,” see supra III.A.4.a.

(2)     Specific Conditions
(a)     Crowding

Allegations of overcrowding, alone, are insufficient to state a claim under the Eighth Amendment.  See Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989); Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (per curiam) (citing Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982)).  Where crowding causes an increase in violence or reduces the provision of other constitutionally required services, or reaches a level where the institution is no longer fit for human habitation, however, the prisoner may be able to state a claim.  See Balla, 869 F.2d at 471; Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984); Hoptowit, 682 F.2d at 1248–49.

(b)     Sanitation

“[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.”  Anderson v. Cty. of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995); see also Johnson v. Lewis, 217 F.3d 726, 731–32 (9th Cir. 2000); Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985).

(c)      Food

“The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing.”  LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1259–60 (9th Cir. 2016) (concluding that county’s nutrition policy for pregnant prisoners did not violate the Eighth Amendment); Foster v. Runnels, 554 F.3d 807, 812–13, 813 n.2 (9th Cir. 2009); Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000); Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).  “The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.”  LeMaire, 12 F.3d at 1456 (citation and internal quotation marks omitted); see also Foster, 554 F.3d at 813 n.2.

(d)     Noise

“[P]ublic conceptions of decency inherent in the Eighth Amendment require that [inmates] be housed in an environment that, if not quiet, is at least reasonably free of excess noise.”  Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (citations and internal quotation marks omitted; brackets in original), amended by 135 F.3d 1318 (9th Cir. 1998).

(e)      Exercise

“Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation.”  Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Thomas v. Ponder, 611 F.3d 1144, 1151–52 (9th Cir. 2010); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995); Allen v. City of Honolulu, 39 F.3d 936, 938–39 (9th Cir. 1994); LeMaire v. Maass, 12 F.3d 1444, 1457–58 (9th Cir. 1993); Toussaint v. Yockey, 722 F.2d 1490, 1492–93 (9th Cir. 1984).  “[A] temporary denial of outdoor exercise with no medical effects [, however,] is not a substantial deprivation.”  May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); see also Noble v. Adams, 646 F.3d 1138, 1142–43 (9th Cir. 2011) (as amended) (concluding prison officials were entitled to qualified immunity from § 1983 claim that post-riot lockdown of prison resulted in denial of Eighth amendment right to exercise); Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (recognizing that temporary denial of outdoor exercise with no medical effects is not a substantial deprivation); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998).

Prison officials may restrict outdoor exercise on the basis of weather, unusual circumstances, or disciplinary needs.  See Spain, 600 F.2d at 199.  “The cost or inconvenience of providing adequate [exercise] facilities[, however,] is not a defense to the imposition of a cruel punishment.”  Id. at 200.

(f)      Vocational and Rehabilitative Programs

“Idleness and the lack of [vocational and rehabilitative] programs” does not violate the Eighth Amendment.  See Hoptowit v. Ray, 682 F.2d 1237, 1254–55 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Toussaint v. McCarthy, 801 F.2d 1080, 1106–08 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

In the prison work context, the Eighth Amendment is implicated only when “prisoners are compelled to perform physical labor which is beyond their strength, endangers their lives or health, or causes undue pain.”  Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam); see also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (finding Eighth Amendment violation where inmate’s thumb was torn off by a defective printing press).

(g)     Temperature of Cells

“The Eighth Amendment guarantees adequate heating.”  Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (per curiam) (noting the Eighth Amendment requires adequate heating, but not necessarily a “comfortable” temperature); Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000) (exposure to excessive heat).  “One measure of an inadequate, as opposed to merely uncomfortable, temperature is that it poses ‘a substantial risk of serious harm.’” Graves, 623 F.3d at 1049 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

(h)     Ventilation

“Inadequate ‘ventilation and air flow’ violates the Eighth Amendment if it ‘undermines the health of inmates and the sanitation of the penitentiary.’” Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (quoting Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985)), amended by 135 F.3d 1318 (9th Cir. 1998).

(i)      Lighting

“‘Adequate lighting is one of the fundamental attributes of “adequate shelter” required by the Eighth Amendment.’  Moreover, ‘[t]here is no legitimate penological justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination.’”  Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (citations omitted; brackets in original) (holding there was a triable issue of fact on a continuous lighting claim where prisoner was subjected to two large fluorescent lights that were kept on 24 hours a day for six months, and prisoner claimed that the lighting caused him grave sleeping problems and other and psychological problems), amended by 135 F.3d 1318 (9th Cir. 1998); see also Grenning v. Miller-Stout, 739 F.3d 1235, 1238–41 (9th Cir. 2014) (concluding material issues of fact regarding the brightness of the continuous lighting in prisoner’s cell, the effect it had on the prisoner, and whether officials were deliberately indifferent precluded summary judgment).

(j)      Environmental Tobacco Smoke

Assigning an inmate to live in a cell with an inmate who smokes may give rise to an Eighth Amendment claim.  See Helling v. McKinney, 509 U.S. 25, 35–36 (1993) (remanding for consideration of whether a civilized society’s norms were violated by such behavior); Franklin v. Or., State Welfare Div., 662 F.2d 1337, 1346–47 (9th Cir. 1981) (concluding that prisoner who had pre-existing medical condition that was exacerbated by cigarette smoke had stated a claim).  The prisoner must show that the level of exposure to environmental tobacco smoke has unreasonably endangered the prisoner’s health, “that it is contrary to current standards of decency for anyone to be so exposed against his [or her] will,” and that “prison officials are deliberately indifferent to [the prisoner’s] plight.”  Helling, 509 U.S. at 35–36.

(k)     Asbestos

A prisoner’s exposure to asbestos is sufficient to meet the objective prong of the Eighth Amendment.  See Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995).

(l)      Personal Hygiene

“Indigent inmates have the right to personal hygiene supplies such as toothbrushes and soap.”  Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).

(m)    Clothing

“The denial of adequate clothing can inflict pain under the Eighth Amendment.”  Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir. 1994) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

(n)     Searches

Searches intended to harass may violate the Eighth Amendment.  See Hudson v. Palmer, 468 U.S. 517, 530 (1984).  Prison officials’ knowledge of the risk of psychological trauma from body searches of female inmates by male guards makes such searches a violation of the Eighth Amendment.  See Jordan v. Gardner, 986 F.2d 1521, 1526–30 (9th Cir. 1993) (en banc).  But see Somers v. Thurman, 109 F.3d 614, 622–24 (9th Cir. 1997) (concluding that allegations that female guards conducted visual searches of a male inmate or saw the male inmate nude are insufficient, by themselves, to state a claim under the Eighth Amendment).

(o)     Verbal Harassment

“[V]erbal harassment generally does not violate the Eighth Amendment.”  Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (implying that harassment “calculated to … cause [the prisoner] psychological damage” might state an Eighth Amendment claim) (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)), amended by 135 F.3d 1318 (9th Cir. 1998); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (explaining that “the Eighth Amendment’s protections do not necessarily extend to mere verbal sexual harassment.”).

(p)     Safety Cell

Because prison officials must have means of protecting and controlling suicidal and mentally ill inmates, temporary placement of prisoners in “safety cells” – even where the cells are small, dark, and scary – does not violate the Eighth Amendment.  See Anderson v. Cty. of Kern, 45 F.3d 1310, 1313–15 (9th Cir. 1995).

e.       Excessive Force

“[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is … whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”  Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); see also Whitley v. Albers, 475 U.S. 312, 320–21 (1986); Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 795 (9th Cir. 2018); Watts v. McKinney, 394 F.3d 710, 711 (9th Cir. 2005); Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003); Marquez v. Gutierrez, 322 F.3d 689, 691–92 (9th Cir. 2003); Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002); Jeffers v. Gomez, 267 F.3d 895, 900 (9th Cir. 2001) (per curiam); Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000); Robins v. Meecham, 60 F.3d 1436, 1441 (9th Cir. 1995); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).  Proof of sadism is not required for excessive force claims.  See Hoard v. Hartman, 904 F.3d 780, 789 (9th Cir. 2018).

“[S]ubjective intent is critical in an Eighth Amendment analysis.  More than de minimis force applied for no good faith law enforcement purpose violates the Eighth Amendment.”  Rodriguez, 891 F.3d at 797 (citing  Whitley, 475 U.S. at 320–21).  In contrast, subjective intent plays no role in the Fourth Amendment analysis of excessive force claims, which instead look at the objective reasonableness of the force used.  Rodriguez, 891 F.3d at 797.  However, “[o]bjective reasonableness may inform the Eighth Amendment inquiry, providing evidence of good faith or of malice.”  Id. (concluding that sheriff’s department employees were not entitled to qualified immunity where, during a prison disturbance, they electrically shocked prisoners with stun guns for purpose of causing harm).  See also Hoard, 904 F.3d at 790 (the core inquiry is whether the defendant officers acted in bad faith or with the intent to harm the inmate).

Where prison officials have acted in response to an immediate disciplinary need, because of the risk of injury to inmates and prison employees and because prison officials will not have time to reflect on the nature of their actions, the “malicious and sadistic” standard, as opposed to the “deliberate indifference” standard, applies.  See Whitley, 475 U.S. at 320–21; Rodriguez, 891 F.3d at 796 (9th Cir. 2018) (“A plaintiff cannot prove an Eighth Amendment violation without showing that force was employed ‘maliciously and sadistically’ for the purpose of causing harm.”); Hamilton v. Brown, 630 F.3d 889, 897 (9th Cir. 2011); Clement, 298 F.3d at 903–04; Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc); Berg, 794 F.2d at 460.  The excessive force standard also applies when analyzing practices used in disciplinary segregation to respond to repeat offenders.  See LeMaire v. Maass, 12 F.3d 1444, 1452–53 (9th Cir. 1993).

When determining whether the force is excessive, the court should look to the “extent of injury … , the need for application of force, the relationship between that need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a forceful response.’”  Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321); see also Wilkins v. Gaddy, 559 U.S. 34, 37–38 (2010) (per curiam); Martinez, 323 F.3d at 1184.  Although the Supreme Court has never required a showing that an emergency situation existed, “the absence of an emergency may be probative of whether the force was indeed inflicted maliciously or sadistically.”  Jordan, 986 F.2d at 1528 n.7; see also Hope v. Pelzer, 536 U.S. 730, 738, 747 (2002) (holding that “cuffing an inmate to a hitching post for a period of time extending past that required to address an immediate danger or threat is a violation of the Eighth Amendment.”); Jeffers, 267 F.3d at 913 (deliberate indifference standard applies where there is no “ongoing prison security measure”); Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000).  Moreover, there is no need for a showing of a serious injury as a result of the force, but the lack of such an injury is relevant to the inquiry.  See Hudson, 503 U.S. at 7–9; Martinez, 323 F.3d at 1184; Schwenk, 204 F.3d at 1196.

Because the use of force relates to the prison official’s legitimate interest in maintaining security and order, the court must be deferential when reviewing the necessity of using force.  See Whitley, 475 U.S. at 321–22; see also Norwood v. Vance, 591 F.3d 1062, 1066–67 (9th Cir. 2010).  But see McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (describing circumstances in which the prison official’s use of force was unconstitutionally excessive).

f.       Capital Punishment

The Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.”  Baze v. Rees, 553 U.S. 35, 48 (2008).  “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”  Id. at 50.  See also Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011) (per curiam) (noting that, to establish an Eighth Amendment violation, prisoner must show that the use of sodium thiopental in carrying out his death sentence was sure or very likely to cause needless suffering and to give rise to sufficiently imminent dangers).  Furthermore, “[w]here an execution protocol contains sufficient safeguards, the risk of not adopting an additional safeguard is too ‘remote and attenuated’ to give rise to a substantial risk of serious harm.”  Dickens v. Brewer, 631 F.3d 1139, 1149 (9th Cir. 2011).

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