*2 FRIEDMAN,* Before DANIEL M. NELSON, and STEPHEN DOROTHY W. REINHARDT, Judges. Circuit REINHARDT; Opinion by Judge Judge FREIEDMAN. Opinion by OPINION
REINHARDT, Judge: Circuit brought seeking
Otis this suit (individually establish that officials”) collectively “prison violated rights denying his Amendment for 13 and 25 him outdoor exercise months maximum days he was in a while * Friedman, by designation. sitting Daniel M. United The Honorable Circuit, Judge for the Federal States Circuit period “sufficiently
housing unit. The officials condi- of time was serious” to tioned Thomas’s access to outdoor exercise constitute a valid Eighth Amendment upon signing promis- form” “pledge claim, reject but the district court’s other ing engage would not violence rulings. hold that as a matter of law *3 programs. participating prison while posed risk to health serious signed contemporaneous interview by deprivation of a this extended basic promising “program forms non-violent- necessity human pris- was “obvious” to the ly” sign pledge but form refused on We officials. also hold that material itself. insisted that prison officials factual pris- issue exists as to whether the form pledge would do and continued to reasonable, on officials’ actions were allow him any opportunity refuse to light of disciplinary Thomas’s limited rec- he exercise until the form. ord, prison at the conditions granted summary district court the last of the 14 months that judgment for the exercise, officials on Thom- deprived Thomas was and the § as’s 1983 claim. It U.S.C. concluded prison willingness officials’ allow Thom- the denial out-of-cell exercise for as to the regular resume course of exercise period such an extended time was “suffi- upon the formal signing pledge form. We ciently serious” constitute valid therefore reverse district court and claim, Eighth Amendment but held that remand for further proceedings. Thomas failed to demonstrate genuine
was a issue of material fact as to I. BACKGROUND whether the officials had acted with A. FACTUAL BACKGROUND First, “deliberate indifference.” it con- (“Thomas”) cluded Otis prison- that Thomas had failed to was a show that officials er Facility believed the risk housed in C at Salinas (“SVSP”) harm to Valley Thomas’s health was other than State Prison in 2005-06. Second, “insubstantial or nonexistent.” Facility aC is level IV maximum security concluded that there was insufficient evi- housing unit with the SVSP. Inmates are dence to establish that the officials Facility housed in variety C for a of rea- acted unreasonably. district court sons, including “a history of assaultive concluded that the depriva- officials’ actions, disciplinary behavior and gang- tion of Thomas’s right to exercise convictions, lengthy related or life reasonable because disciplin- of Thomas’s 14, 2005, July On Facility sentences.” ary history “genuine and the emergency” using C inmate a homemade knife prison, and because Thomas had the stabbed seriously wounded two cor- opportunity form at rectional In response, pris- officers.1 time, upon signing would have been placed SVSP lockdown permitted to exercise out-of-cell. July from September 2005 to 2005.2 9, 2005, agree September On the district court’s con- officials in- clusion officials’ denial of troduced a “modified program” allowing out-of-cell exercise for such extended only, quar- “non-contact visits suspended incident, 1. Thomas was not prison's population involved with this and "all but essen- or with other incident this time suspended tial are functions in those affected period. sub-facilities, housing e.g., yard, units can- draws, services, religious visiting.” teen 2. "Lockdown” occurs when § 15 Cal. Code Admin. suspend privileges portion activities and for a his return to normal re- and curtailed outdoor terly packages program, dependent upon modified programing pris- also creation.” Under all out-of-cell deprived of were prisoners undertaking on officials a review of his cells, exercise, subjected to in their fed “no case to affirm that other factors evi- and, searches, occasions on the rare strip Inmates propensity dence a violence.” their permitted leave pledge, who declined refused cells, in restraints. were escorted interviews, or were otherwise deemed to “meaningfully” in the participated Captain On October Ponder, Facility C, process sent memorandum interview remained on “modified” G. explained Facility C inmates that program status. *4 in required to do order what In with policy, accordance this review program return from the “modified” to to prison officials interviewed Thomas several program. “normal” memorandum a August times and June 2006. between stated, part: in relevant interviews, beginning Before these process help to developing I am instructed to fill out facility providing inmates work towards ques- forms. Thomas answered all of the violence program that want to without tions these interview forms and he then to so. The choice to opportunity an do and all official be in the hands of each program will all forms. The interview forms were iden- in step inmate. The first this individual following all tical and included state- next be interviews. The process will question: ment and on a “Programming pro- your commitment to step will be yard level general population requires IV and without violence verification gram participation you without violence. Are by signing that fact. this commitment this willing type program? to commit to involve Correction- process The next will no, give response If details?” to this identifying al inmates have Officers question Thomas wrote “Yes.” Another pro- willingness program to and shown you any safety question was “Do supervi- viding inmates to a list those concerns?” to which Thomas answered to act in sory staff. Inmates fail facility “No.” “If question were rules and Departmental accordance with program, you returned to normal could will result in procedures Institution program without violence on level IV changes. housing program Inmates general population yard with from inmates privileges and ac- are advised their present all or past to until programs [sic] cess will be curtailed races/ethnics successfully comply gang also on each you appeared as an individual affiliations?” form, question in process. response with this to this also answered “Yes.” interviewing involved program Ponder’s twice. At inter- each inmate least each forms, After Thomas view, required sign interviewee During officials conducted the interviews. willing that he to follow the “pledge” interviews, prison gave Thom- In- proposed program without violence. as a form and instructed him to “willing deemed mates whom sign. form stated: typically program without violence” Facility I am housed ‘C’ currently within programming returned to “normal” after I Valley am also Salinas State Prison. signing their initial interview or facility in aware that this is on modified explained, pledge form. Ponder declaration, acts program upon an inmate status based several sworn that once having violence occurred within remain will program be monitored past 15 months. and evaluated staff. document, By signing advising I am Thomas was later unable recall whether staff I participate that want he was asked to pledge form process being program imple- review interview, every but he stated that on each I stipulat- mented at this time. am also occasion that he was asked to he sign, . ing my that I want to “do own time” and refused do so.3 The refused by not program participating will release Thomas from the pro- modified gang violence. gram deny and continued to access my I have advised that failure yard, the outdoor exercise he act in accordance institutional rules pledge. would not A Correctional procedures may program result C, Lieutenant Facility Lieutenant J. changes. I housing am aware that Celaya, subsequently explained that, be- I participate pro- the time in the cause Thomas to sign refused the pledge, gram process, I my review will retain “posed unknown risk and threat work/privilege established group. *5 Celaya staff....” also stated that aware, I I am if am I unassigned and Thomas “had prior disciplinary problems, participate in the program pro- review suspected gang and was involvement.” cess that my participation does not con- conceded, Celaya however, that Thomas’s assignment. stitute a earning credit alleged gang involvement was an unsub- Further, my I privi- understand that Moreover, stantiated assumption. four leges programs and access to will be prisoners provided other sworn declara- I successfully complete curtailed until tions had returned them to program
this amand returned to normal normal even programming though general population program status. never signed had form. pledge I have program been advised that the process review is I ongoing and that will finally Thomas and signed relented be expected maintain with compliance to form pledge August at which regulations participate. During juncture to him released program process review I will be re- from the program modified and restored quired to interact other inmates of his exercise privileges.4 Thomas testified all ethnicity races and all out of that he pledge because he was process my tired, cell par- severely stressed, activities. and and losing weight. it, ticipation in is moni- on-going and to his singing pledge, Prior tored, During period this I [sic] under- officials had denied Thomas outdoor exer- my stood that progress suitability and to cise for total of days. 13 months and 25 non-violence; 3. sign refusing object Thomas’s reasons for pledging did not rather, immediately regula- form are he believed not evident from the that California did tions deny allow the in- explana- record. has offered Thomas various privileges failing mates exercise or other sign. point, tions for his refusal to At he one form, sign "general such a chrono” and sign stated that he refused to he that, form, signing was concerned believed provide might subject discipline himself to for an punishment” "unspecified "endless disci- incident in had which he no involvement. pline” and would be used to force inmates,” "questions answer about other 4. Thomas asserts that this was second brief, unwilling when he was to do so. In his signed pledge time he form. The first time explained July Thomas further that he: in- restoring and CDC-128-B BACKGROUND B. PROCEDURAL (3) security, plaintiff re- stitutional 5, 2006, while incarcerated On June peatedly pledge, refused to California, Prison State Centinela (4) discipline plaintiff lengthy had § 1983 action filed 42 U.S.C. history, refusing included which prison officials. Thomas against SVSP threatening obey staff orders and 5, 2006. July complaint amended (5) inmates, as a staff and other and alleged, complaint amended his plaintiffs refusal to result alia, Captain inter disciplinary history, his de- pledge and Kircher, Ponder, and Ev- Officer Warden fendants were unable to assess rights Amendment Eighth ans violated plaintiff to staff posed level threat yard by denying him access re- and other inmates should he be None of the other months. almost Further, program. turned a normal complaint is his amended allegations year July ... almost a after the this appeal. us on before incident, stabbing through June a motion for officials filed 2006, there were several other docu- Eighth judgment on Thomas’ summary mented and assaults that took threats claim the district court Amendment place Facility C SVSP rec- It stated that it granted the motion. safety security of threatened the “[ejxercise one most ognized ability the institution hindered protected by the human necessities basic Facility of staff to return C that Thomas had Amendment” and programming. normal sufficiently that his shown *6 Eighth timely summary judg- a Amendment appeals serious for valid concluded, however, that for two It as Eighth claim. order to his Amendment ment Thomas had failed show reasons claim. acted with “deliberate prison officials II. ANALYSIS
indifference,” an element of an essential review a court’s de novo district First, it con- Amendment claim. Eighth judgment. McDonald grant summary of could not that Thomas show cluded (9th Co., 774, F.3d 778 Oil 548 v. Sun “subjectively officials were Cir.2008). non-moving evi- party’s health aware” of risk believed, justifiable “is to and all dence deprivation of exer- posed by the extended favor are to be drawn in [his] inferences undisputed “the evidence cise because issue of disputed .... version of [his] the risk of harm to shows believed presumed thus Eastman fact is correct.” or nonexistent’ was insubstantial [Thomas] Services, v. Image Kodak Co. Technical could have [he] 456, 2072, Inc., 112 119 504 U.S. S.Ct. time and immediate access gained (internal (1992) quotation 265 L.Ed.2d Second, it concluded to outdoor exercise.” omitted). proceed- stage marks At this of keeping Thomas the modified by weigh we do “not the evidence ings, denying outdoor exer- program, of the matter [assert- determine truth cise, officials had acted “reason- is ed], there determine[ ] but whether ably,” because: for trial.” Balint v. Car- genuine issue (1) Facility placed on lockdown C (9th 180 Cir. City, F.3d 1054 son program in re- and then modified (en 1999) banc). (2) “We will not reverse emergency,” to a sponse “genuine judg- summary of grant court’s be- district was a rational connection there summary party opposing unless inmates the ment requiring tween 1150 (9th
judgment Symington, has identified the evidence es 197 F.3d 352 Cir. 1999). tablishing genuine issue of fact material Liberal construction is thus the opposition judgment.” to summary its appropriate apply standard to to Thomas’s Brekka, Holdings LVRC LLC v. 581 F.3d in this filings case. (9th Cir.2009). 1127, 1137 An issue of ruling A. The district court’s that there genuine material “if is suffi fact is was insufficient evidence to estab- jury cient evidence for reasonable lish that officials knew non-moving party.” return a verdict for the a serious risk of substantial harm
Long
Angeles,
v.
Los
442
County
F.3d
physical
to Thomas’s mental and
(9th Cir.2006).
1178, 1185
health is incorrect as a
matter
liberally
We construe
filings
mo-
law
a pro
tions of
inmate in
suit.
se
a civil
Runnels,
Foster
Under
v.
554
807
(9th
Moynihan,
Bias v.
1151 (i) istent,” Thomas could have risk to of a substantial actually knew who (ii) time, safety may be found free the form at Thom- health or inmate they responded disciplinary history reason- if as had “substantial” liability from conditions at the ably”). doing, bypassed “acute.” In so a neces- court concluded [2] The district inquiry, proceeded sary step in its prison officials’ denial correctly that the directly question to the reason- instead Thomas for 13 exercise out-of-cell turn, in therefore the first ableness. We “sufficiently seri days was
months and 25 instance, question district a valid claim under to constitute ous” whether erroneously omitted: court Supreme As Amendment. Eighth to Thomas’s health was “obvious” risk Seiter, v. 501 U.S. noted in Wilson Court officials. 2321, 271 115 L.Ed.2d 111 S.Ct. (1991), may an in violate Any argument that the risk rights when Eighth Amendment mate’s as “obvious” fails a matter health not single deprive him “a identifiable Farmer, law. 511 U.S. 114 See warmth, food, as or exer human need such require- 1970. obviousness S.Ct. Farmers Here, as Id. at S.Ct. cise.” showing does necessitate a that ment noted, Thomas satisfies the district court official had specific an individual objective based and Farmers test Foster knowledge par- harsh treatment of a fact that he was denied undisputed circumstances, inmate, in particular ticular for 13 months and outdoor Rather, have certain outcome. we consistently “or held days. We have light of rea- measure what is “obvious” lack of outside exercise dinarily the general knowledge and the basic son sufficiently is a serious periods extended may be to have presumed official pur Eighth Amendment deprivation” regarding type obtained Maass, v. LeMaire F.3d poses. example, pur- involved. Id. For Cir.1993). (9th out prohibition A analysis, an poses of obviousness “sufficiently is a exercise of six weeks door the general is deemed warden support deprivation to serious” minimum, knowledge expected, See, v. e.g., Lopez claim. Amendment performing the functions of an individual (9th Smith, Cir. 1132-33 job. cannot disclaim an under- of that He Sakai, 2000) (en banc); 48 F.3d Allen standing perform- that is essential to the Cir.1994). (9th 1082, 1086 has an- of his duties and that ance determining has After that an individual years. cases for over 30 nounced our objectively deprived that he was *8 shown (“if Eighth plaintiff an Amendment Id. serious,” something “sufficiently we must that a showing evidence substan- presents in- whether the risk to the next consider longstanding, pervasive, risk was ... tial sufficiently pris- “obvious” the mate well-documented, by or expressly noted been must have on officials past, and the officials in the circum- prison severity deprivation, the of aware suggest the defendant-official stances the we on to consider whether before move exposed sued informa- being had in was nonetheless reasonable deprivation the and thus ‘must concerning tion risk The dis- of all the circumstances. light of it” evidence suf- have known’ about such however, not to appears, trict court omitted). (citations fices) quotations and risk Thomas’s considered whether the district court acknowl “obvious,” As the but instead deter- health was basic is one of most edged, “[e]xercise nonex- that it was “insubstantial or mined 1152 protected by Eighth
human necessities at least three hours of exercise per week food, Like it Amendment.” is “a basic segregation and inmates held in with at by protected Eighth human need one of per day. least hour exercise Cal. Hall, Amendment.” Keenan v. 83 F.3d (2006). 1065, 3343(h) Regs. §§ tit. Code (9th Wilson, Cir.1996); see also regulations The same prohibit disciplining case U.S. S.Ct. Our by inmates depriving them of outdoor ex- uniformly law vital importance stresses the days, ercise for more than ten absent ex- prisoners. of See LeMaire 3322(c). § treme Id. circumstances. Maass, 1457(9th Cir.1993) 12 F.3d above, light of we conclude that (“Exercise has one been determined to be officials were aware as matter of basic human protected necessities potential of law of the consequences of Amendment.”); by Spain v. depriving an inmate of out-of-cell exercise (9th Cir.1979) Procunier, 600 F.2d period extended of time. The mere (“There agreement among is substantial deprivation fact of the total of Thomas’s the cases this area that some form of right out-of-cell exercise for almost regular extremely outdoor exercise is im- sufficient, fourteen light months is of portant to the psychological physical law, the established to render it obvious to inmates.”).7 well-being of the As held we officials that their posed actions Foster, “if an inmate presents evidence a “substantial risk of serious harm” to of very obvious and blatant circumstances physical mental and health. We indicating official knew [a reject therefore the district court’s ruling existed, of substantial risk serious harm] contrary. proper then it is infer the official must have known of the risk.” 554 F.3d at genuine AB. issue of material fact ex- 814(citation omitted). ists as to whether offi- undisputed It is parties that reasonably depriving cials acted the length officials knew all out-of-cell exercise scope Thomas’s confinement without days light months and 25 outdoor exercise. Prison officials made of all the circumstances and reviewed keep the decision to The district court concluded that there exercise, confined without out-of-cell was insufficient evidence to establish that repeated Thomas submitted written and genuine issue material fact existed as complaints oral officials about his to whether the officials’ deprivation of out-of-cell exercise. For right of Thomas’s to out-of-cell exercise thirty years, over emphasized we have was “reasonable.” Given the record be- form regular “some outdoor exercise is us, fore and the extremely seriousness the risk to important psychological which subjected, Thomas was physical well-being is difficult inmates.” Spain, 600 to conceive strictly F.2d at 199. how officials actions California regulates “regular exercise,” outdoor deemed “reasonable.” Neverthe- less, ordinarily requiring prisons provide in the issue is one of fact that must be *9 general mates held in population the presented to a fact-finder.
7. At least one other circuit has reached a denied atrophy, and muscles are allowed to Owens, similar conclusion. See French v. the the health of individual is threatened and (7th Cir.1985) (holding that obligation compro- the state’s constitutional may certainly "[l]ack exercise to a rise mised”). constitutional violation. Where movement is us, very the bears pears in record before found that the court
The district reasonably light to Thomas’s little resemblance LeMaire’s. acted prison officials history” disciplinary only disciplinary lists two infrac- “lengthy Thomas’s record violence battery actual or threatened episode and of other of an inmate tions: one 2006, and because Facility C in 2005 and at threat of violence to an one form pledge the could have Thomas only in- disciplinary inmate in 2002. ruling, as time. reverse any at during Thomas’s 13-month-25- fraction the evidence the hold that well. We day exer- confinement without out-of-cell Thomas, at that the demonstrates record prison aby cise filed official report was least, issue of material genuine raised a “willfully obstructing him with charging prison the officials acted fact to whether as he submitted a com- police officer” because risk reasonably of: the serious to light plaint prison Warden about health; physical mental and Thomas’s him to officials’ refusal allow exercise. assaults and threats at level of documented LeMaire, therefore, little has relevance to facility during the last 11 months present case. exercise; Thom deprived was Thomas Furthermore, the evidence in the record record; his execu disciplinary as’s limited sole reason that demonstrates provided tion of other forms program- was kept modified promised “program nonviol in which he sign ming pledge was his failure to authorities’ failure ently”; and the form, any fear that officials providing him with alternative to consider dangerousness. Thomas’s harbored about opportunities to exercise. very soon fact as as Thomas reaching pris- In its conclusion that signed the form he pledge permitted was reasonably on officials relied Thomas’s engage exercise shows that out-of-cell they disciplinary history when decided officials did not consider deprive him exercise for almost intrinsically dangerous, apparently but months, on Le- the district court relied thought “dangerous” that he was as (9th Maass, 12 Cir. F.3d 1444 Maire long as he refused form. Both 1993) prisoner had attacked a in which the district court and the officials prison guard, “savagely attacked” another “signed assert if Thomas had inmate, assaulted numerous officers “gained pledge time” he would have water, food, feces, water, with hot toilet immediate access outdoor exercise.”8 mine, major viola- had at least 25 rule Thus, apparently nothing about was period, year tions in a two and attacked Thomas that warranted out- as exited an exercise two he of-cell exercise other than the absence of (an if repeat” “he vowed to he cubicle act addition, signature pledge. on the again). Id. at were allowed to exercise that, apart the record shows from his also LeMaire court found that 1458. The form, pledge refusal privi- restricting prisoner’s such a interviewers, cooperated multiple with the he leges was reasonable “because both writing and committed in non-violence grave representad] abused them and However, in separate contemporaneous interview risk.” Id. at 1458. history, did ap- as forms. The district court not consider disciplinary to outdoor exercise' .... concede as much in immediate access brief, easily to outdoor exercise attain- state "as dis- access their where simply sign ... all had to ... 'could have able do trict court noted [Thomas] ” gained time form.' *10 1154 case, In contemporaneous signed
these
interview
the
officials make no
forms,9
argument
“emergen-
substantial
though they pose
significant
even
14,
cy”
by
July
caused
2005 incident
officials’ assertion
obstacle
Facility
which a
C inmate stabbed two
they deprived
that
of out-of-cell
correctional officers
13
endured
they
that
exercise because
were concerned
days
months and 25
that Thomas
de-
posed a threat of violence to other
prived of out-of-cell exercise. To the con-
they
say
that
inmates —a threat
later
trary,
they admit that the lockdown that
would have been alleviated had he
“emergency” precipitated
lasted
itself.
months,
14,
than
July
less
two
from
2005
9,
Thereafter,
September
the au-
reaching
its conclusion that the
pro-
thorities introduced the “modified
prison officials’
to allow Thomas to
refusal
gram,” to
prisoners
which individual
were
reasonable,
exercise outdoors was
dis
subject
they signed
until
pledge.
history
trict court also
considered
no
record shows that
further
lockdown
According
violence
SVSP.
to the district
facility,
occurred
and 148
Fa-
other
court, the prison
reasonably
officials acted
cility
pro-
C inmates returned to normal
depriving
Thomas of exercise because
gramming
while the
of Thom-
responding
“genuine
to a
emer
as’s out-of-cell exercise remained in force.
gency.”
previously
We have held
prisons may curtail inmates’ outdoor exer
officials’contention that from
a genuine
14,
cise “when
emergency
July
exists.”
through
June 2006 “there
Specifically, “prison
may
more
be
were several other documented threats
be,
than they
restrictive
may
place
otherwise
assaults
took
at SVSP” does
and certain
not establish that
may
suspended
following
services
the end of the
September 9,
lockdown
temporarily.”
Ray,
Hoptowit v.
682 F.2d
(9th Cir.1982)
a “state
emergency”
prison.10
in the
abrogated on oth
Documented threats and
grounds
Conner,
happen
assaults
er
v.
Sandin
515 U.S.
frequently
prisons.
Given that an
emer-
115 S.Ct.
1155 cited, court’s conclusion that The district example, Hay district court The (9th was policy officials’ “reasonable” Procunier, 629 F.2d Cir. 599 ward light in highly questionable is also of a 1980), ruled that a case in which we any in the that absence of evidence record Quen emergency” existed at San “genuine officials considered whether following of in 1974 a series tin of pro there were alternative means at extremely incidents. Id. violent viding Thomas out-of-cell exercise. Even a lockdown We held that five-month justify a might concerns where on prison, including restrictions out- of the a “to permitting prisoner on limitation initially of on all out cell of-cell exercise— mingle general prison population” with exercise, yard exercise “[s]ome but with explain why concerns “do not other such month after the permitted ... within a not arrangements made.” [are] exercise in began” permissible such lockdown —was 200; Spain, Lopez, F.2d at see also extremely Id. at 600. The circumstances. (holding if at 1133 that even incidents, including “82 assaults violent denying Lopez general access to recre killings, as well as 71 weapons with reasonable, yard “it not ation was does weapons of and 2 at possession of cases why explain Lopez given was not some id., Quentin in escapes,” at San tempted exercise.”). opportunity other for outdoor however, were, quite from the distinct argue “Thomas incident, stabbing albeit two single exercise, was offered alternatives no while was guards, that occurred opportuni Defendants offered him when prisoner SVSP. at in August exercise once ties outdoor Moreover, that the we held restrictions in September in once once Hayward imposed exercise in outdoor twice in October November permissible part because were unspecified and an number of times be the inmates temporary, because January 2006 2006.” The tween and June approximately allowed that case “were are, by occasions cited Spain the minimum exercise mandated case, was in each those which Thomas imposition of the a month after the within pledge form and refused to offered offi- lockdown.” Id. at 603. occasions on which he was offered sign, not deprivation that Thomas’s cials contend exer opportunity “some other outdoor was, Hay- like out-of-cell exercise cise,” accept and declined to offer. ward, measure, “temporary” repeated officials’ assertion signed Thomas could “rea- deprivation of exercise was day 13 month and 25 any time. Thomas’s Thomas could have sonable” because exercise confinement without out-of-cell time and form not, however, “temporary.” Whether to exer- permitted thereafter would depends on the temporary is is point completely and cise misses the date, prison’s any, poli- if expiration entirely previous inconsistent our cy, not on whether an individual can es- Foster, at 814. As holdings. See 554 F.3d or an- application its one means cape depri- supra, we discuss we have held Here, indefinite policy other. may vation of “reasonable” depriva- case duration. situations, as “state certain such longer lasted even than tion would have or when emergency” prison, did, had Thomas the almost months poses such a threat to inmates prisoner capitulated form be- exer- guards that his confinement without begun way cause the ban on exercise had to maintain securi- cise facility. the circum- ty his health. Under affect *12 here, however, during lengthy in which the present period stances involved. The record punishment deprivation prison of exercise also reflects that the officials necessary ways to appears clearly providing not to have failed consider other in prison, maintain order it diffi- Thomas with sufficient exercise that would to deprivation any how of a not have implicated purported cult to conceive of a of their LeMaire, 12 necessity,” Finally, prison “basic human F.3d concerns. au- 1457, may deemed reasonable. thorities’ contention that at be Thomas could pledge that the 13 month form at time Thomas testified justification day appear provide confinement without out- would not to a period sign long period. did not and had no for their over of-cell exercise he actions so signing pledge of ever form. therefore hold that the court intention district erred Foster, in ruling Like inmate in Thomas refused insufficient evi- by to to repeatedly prison policy, genuine abide dence raise issue of material complained prison to officials fact to prison about the as whether the officials acted upon by prison reasonably. Accordingly, inflicted him we reverse the response ruling granting summary officials to his refusal ad- district court’s Foster, prison policy.11 judgment here to the officials. Foster, In with common Thomas difficulty in We should add that we have differently, could have chosen behave conceiving might how the officials not, him punishing but he did justify be able to the deprivation of so him placed choice the necessity critical a human as exercise for a physical at risk substantial mental period of almost 14 months on basis harm. Id. 812-14. We therefore hold “reasonableness,” they as would have been that, Foster, has, very as in Thomas at the willing enjoy to allow Thomas to out-of-cell least, genuine of material raised issue throughout peri- almost all fact as to whether the officials’ ac- od if he had form. Nev- tions were reasonable. ertheless, because we are asked to decide sum, has, least, very ruling at the whether district court’s summary officials’ motion for genuine raised issue of material fact as judgment to whether the was erroneous and because prison officials acted rea- grant sonably has asked us to denying him of all out-of-cell summary relief in judgment, the form of exercise for days. 13 months and 25 we are reluctant to do more than reverse record already shows that Thomas had proceedings. remand for further promised “program non-violently” separate signed. interview forms that he decline C. We to reach the offi- disciplinary Neither Thomas’s own limited they argument cials’ are enti- record, nor the occasional documented immunity qualified tled prisoners appears threats or acts of other to have it deprive rendered reasonable to The district court did “not reach defen- him of opportunities all out-of-cell exercise argument dant’s are entitled argue explicitly unlikely 11. The highly outweigh pris- officials do not would that Thomas's refusal to form responsibility safeguard on officials' an in- dangerous demonstrated a resistance au- envisage mate’s health. It is thus hard to thority comply or a failure to abide circumstances which refusal to justified prolonged rules that confine- justify jeopardizing form would an inmate’s ment without exercise. Even if the by depriving opportunity health him of all argument, officials had made such an howev- exercise for almost 14 months. er, merit, argument and even if such an had it discretion, I did not abuse their found that immunity,” qualified any actionable grant to make court’s of sum- Thomas had failed affirm the district claims. constitutional mary judgment dismissing the inmate’s that, ruling of our irrespective suggest § alleg- suit damage under U.S.C. *13 claims, constitutional we should ing denying exercise for outdoor sum- grant court’s affirm the district of his re- almost fourteen months because the officials on mary judgment to subjected him pledge, to fusal to the immunity. ground qualified the punishment in violation cruel and unusual immunity, qualified In order establish Amendment. the that his government official must show a was in a appellant The housed any ‘clearly has violated es- “conduct maximum unit of California of which a right tablished’ constitutional locked prison. state down known.” person would have reasonable after another inmate in the unit stabbed 812(internal Foster, quotation 554 F.3d at seriously wounded two correctional of- omitted). Although the offi- marks lockdown, pris- during which ficers. they on appeal, this issue cials have raised confined to their cells oners were why or attempted have not show how emergencies them in or could leave prison officials is enti- each of the named circumstances, extraordinary for ef- they nor immunity, did do qualified tled to approximately fect for two months. Certainly the district court. so before any reason such relief none has shown ended, the When lockdown remand on the light of our reversal and program officials introduced “modified” violation. question of constitutional containing many of the same restrictions above, we In decline to light lockdown, in- had existed immuni- qualified question consider prohibition cluding leaving cell ty appeal, first time on and remand for the for outdoor exercise. To leave the “modi- district court to consider the case program fied” and to a “normal” return instance, time the first at such issue one, required inmates were to be inter- may as it proceedings further sign pledge. and to In his inter- viewed appropriate do so. views, “yes” to the fol- Thomas answered AND REMANDED FOR REVERSED form: lowing questions on an interview IN LIGHT FURTHER PROCEEDINGS general popu- on a IV “Programming level OF THIS OPINION. yard participation lation without requires you willing violence. Are to commit this FRIEDMAN, Judge, dissenting: Circuit not, give If details?” type program? view, appropriate disposi- my “If normal facility were returned to in this case is whether the inquiry tive program, you program without vio- could abused their or prison officials discretion yard general population lence on level IV unreasonably in requiring acted otherwise all [sic] with inmates from or races/ethnics inmates, as a of their condition past present gang affiliations?” He imposed from various restrictions release you question “Do answered “no” (including ability following a lockdown any safety concerns?” exercise, to leave their cells outdoor refused to form that Thomas issue), sign a here at restriction although period, substantial engage would not vio- they occasions to do so on several was asked so released. lent conduct if did that if he so apparently informed I conclude that Since exercise, Services, he could have outdoor contained Americredit Financial Inc., following Creditor-Appellant, statement: document, By signing I am advising this participate staff that I want to in the Penrod, Debtor-Appellee. Marlene A.
program process being imple- review No. 08-60037. mented at time. I also stipulat- am that I ing my want “do own time” and United States of Appeals, Court program by will not participating in Ninth Circuit.
gang violence. Argued and Submitted Nov. *14 officials, warden, Prison headed are July Filed responsible for maintaining order and im- posing discipline prison. They protect
must the inmates and em- ployees, including guards and correc- officers,
tional against violence injury. In carrying out these responsibilities, they necessarily must have broad discretion in
deciding how to run the and to de- steps termine what are appropriate and necessary particular to deal with situa- problems tions as they arise. Since facility where Thomas was housed was unit, maximum one must as- sume its inhabitants included many violent and dangerous prisoners.
Considering circumstances, all the I can- say officials abused their discretion or otherwise acted unrea-
sonably in requiring the inmates of that maximum security unit form containing the commitment not to violence,
engage as a condition of their returning regular prison program, which included outdoor exercise. PENROD,
In re Marlene A. Debtor.