                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MAURICE P. OLIVIER, AKA Maurice                  No. 12-56718
Pierre Olivier,
                                                 D.C. No. 3:11-cv-01447-MMA-
              Plaintiff - Appellant,             RBB

  v.
                                                 MEMORANDUM*
L. E. SCRIBNER, Warden; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                              Pasadena, California

Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.

       Maurice Olivier appeals the district court’s order dismissing his claims

under 42 U.S.C. § 1983 against various employees at Calipatria State Prison




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“CSP”), where Olivier was incarcerated. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

      Reviewing de novo and liberally construing Olivier’s pro se complaint,

Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010), we conclude that Olivier

alleged facts sufficient to state plausible Eighth Amendment claims based on

deprivation of outdoor exercise time, constant illumination in his prison cell, and

lack of attention to his medical needs.1

      1. CSP’s prior warden, Scribner, allegedly deprived Olivier of outdoor

exercise for 73 days by ordering a prison-wide lockdown, thereby creating a

“sufficiently serious” threat to his health to satisfy the objective prong of an Eighth

Amendment § 1983 claim. Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir.

2010). Sribner allegedly ordered the lockdown in his capacity as warden. We

have held that the risk created by depriving inmates of outdoor exercise is obvious

to a prison warden as a matter of law. Id. Scribner allegedly had no reasonable




      1
        The operative complaint referenced but did not independently include
certain documents that were filed with earlier, superseded pleadings. Because
Olivier is a pro se plaintiff, and because these documents were cross-referenced in
the operative complaint, we consider these documents as incorporated into the
operative complaint. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007).

                                           2
justification for ordering the lockdown. Therefore, Olivier alleged sufficient facts

to state a claim of deliberate indifference. Id. at 1150-51.

      2. CSP’s next warden, McEwan, allegedly deprived Olivier of outdoor

exercise time for sixteen consecutive weeks by failing to execute Olivier’s transfer

to a cooler climate, thus requiring Olivier to remain indoors to avoid heat-related

medical problems, and creating a “sufficiently serious” threat to his health to

satisfy the objective prong of an Eighth Amendment § 1983 claim. Id. Further,

liberally construing Olivier’s complaint, McEwan personally reviewed an appeal

regarding noncompliance with the transfer order, which would have informed

McEwan that further delays in the transfer would negatively affect Olivier’s health,

yet the delay continued without justification. See id. Olivier’s complaint also

alleges “a sufficient causal connection between [McEwan’s] wrongful

conduct”—i.e., failing to remedy noncompliance with a medically-necessary

transfer—“and the constitutional violation”—i.e., depriving Olivier of outdoor

exercise time for months—to hold McEwan liable as a supervisor. Hansen v.

Black, 885 F.2d 642, 646 (9th Cir. 1989).2




      2
        We affirm the district court’s dismissal of Olivier’s outdoor exercise claims
against Defendant Small because Olivier did not appeal that aspect of the district
court’s order.

                                          3
      3. Olivier allegedly suffered health problems as a result of the constant

illumination in his cell, which can be sufficiently serious to support an Eighth

Amendment § 1983 claim. Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996).

Whether the illumination complained of in a particular case is unconstitutional is a

fact-intensive question, see Chappell v. Mandeville, 706 F.3d 1052, 1058-59 (9th

Cir. 2013), but the district court erred in dismissing Olivier’s complaint at the

pleading stage for failing to specifically allege facts regarding the brightness and

intensity of the lighting in his cell. Allegations that the lights were bright enough

to cause health problems were sufficient to support an inference that the

illumination was unconstitutional. Olivier also alleged that Chief Deputy Warden

Ochoa and Correctional Counselors Goins and Miller were informed, through

various complaints, that Olivier’s cell was constantly illuminated, and we can

fairly infer that all three defendants knew Olivier was suffering adverse health

consequences as a result.3 Thus, Olivier plausibly alleged deliberate indifference

by each of these three CSP defendants, who allegedly failed to address the



      3
         Olivier allegedly informed Goins and Miller directly that the constant
illumination was causing health problems. If true, this supports a claim of
deliberate indifference. None of the documents Ochoa allegedly reviewed prove
that he was directly informed of the harm allegedly caused by the constant
illumination, but this is a sufficiency of the evidence issue that cannot be resolved
at the pleading stage.

                                          4
illumination problem without reasonable justification. See Thomas, 611 F.3d at

1150-51.

      4. Olivier allegedly informed Physician Assistant Peters and Doctor Chau

that lack of exercise and constant illumination were causing Olivier to experience

health problems. He further alleges that Peters and Chau refused to provide a sleep

mask or medication pursuant to a blanket CSP policy against providing these sleep

aides. If proven, these allegations would establish a § 1983 claim: Olivier’s

“serious medical need” was not being addressed due to a prison policy, not sound

medical judgment, and Peters and Chau acted with deliberate indifference by

purposefully failing to respond to this need. See Jett v. Penner, 439 F.3d 1091,

1096 (9th Cir. 2006) (internal quotation marks omitted). Accordingly, the district

court also erred in dismissing Olivier’s claims against Chief Medical Officer Ball

and Chief Physician Hjerpe, who learned of their subordinates’ alleged failure to

tend to Olivier’s medical needs when they reviewed his appeals but did not remedy




                                         5
the problem. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).4

      AFFIRMED in part; REVERSED in part; and REMANDED.5




      4
        The district court dismissed Olivier’s complaint without addressing the
issue of qualified immunity. We leave consideration of that issue to the district
court in the first instance. See Grenning v. Miller-Stout, 739 F.3d 1235, 1241 (9th
Cir. 2014).
      5
        Defendants’ request to revoke Olivier’s pauper status is moot because
Olivier paid all required fees.

                                         6
