Pittsley

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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12 MICHAEL WITKIN, No. 2:22-cv-1211 WBS CSK P

13 Plaintiff,

14 v. MEMORANDUM AND ORDER RE:

CROSS MOTIONS FOR SUMMARY

15 PITTSLEY, JUDGMENT

16 Defendant.

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19 Plaintiff Michael Witkin is a former state prisoner

20 proceeding pro se in this action brought under 42 U.S.C. § 1983.

21 Defendant M. Pittsley is a correctional lieutenant at the

22 California Medical Facility, who served as the senior hearing

23 officer in a disciplinary hearing at which plaintiff was found

24 guilty of disobeying an officer’s order to follow COVID-19

25 protection policies during visiting hours. As part of his

26 disciplinary decision, Lt. Pittsley assessed a sixty-day

27 suspension on plaintiff’s recreational yard privileges.

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1 Plaintiff argues that such action violated his rights under the

2 Eighth Amendment to the United States Constitution to be free

3 from cruel and unusual punishment. (See Docket No. 42.)

4 The matter was referred to a United States magistrate

5 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

6 Both sides filed motions for summary judgment, and on July 25,

7 2025, the magistrate judge filed findings and recommendations

8 herein, recommending that both plaintiff’s and defendant’s

9 motions be denied (Docket No. 24). The findings and

10 recommendations were served on all parties and contained notice

11 to all parties that any objections to the findings and

12 recommendations were to be filed within fourteen days. Defendant

13 filed objections, and on September 15, 2025, plaintiff filed a

14 late reply.1

15 In accordance with the provisions of 28 U.S.C. §

16 636(b)(1)(C) and Local Rule 304, this court has conducted a de

17 novo review of this case, and for the following reasons declines

18 to follow the full recommendation of the magistrate judge.

19 The magistrate judge recommends denying defendant’s

20 motion for summary judgment on the grounds that plaintiff had

21 raised genuine disputes of material fact as to both whether his

22 conditions of confinement violated the Eighth Amendment and

23 whether defendant was entitled to qualified immunity. (See

24 Docket No. 42.)

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1 Plaintiff contends that defendant failed to serve

plaintiff with a copy of defendant’s objections. (ECF No. 46 at

27 1.) However, defendant’s objections are accompanied by a

certificate of service attesting to service by mail on

28 plaintiff’s address of record. (ECF No. 45 at 10.)

1 However, the Supreme Court has instructed that a court

2 may assume without deciding the existence of a constitutional

3 violation for the purposes of determining whether the official

4 who committed the alleged violation was entitled to qualified

5 immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

6 Pursuant to that guidance, this court elects not to first answer

7 the question of whether defendant’s conduct which is the subject

8 of this action violated plaintiff’s constitutional rights.

9 Instead, the court proceeds first to address the question of

10 whether, construing the facts in the light most favorable to

11 plaintiff, defendant is entitled to qualified immunity.

12 I. Legal Standard

13 In § 1983 actions, “[q]ualified immunity protects

14 government officials from liability for civil damages insofar as

15 their conduct does not violate clearly established statutory or

16 constitutional rights of which a reasonable person should have

17 known.” Pearson, 555 U.S. at 231 (2009) (citation modified).

18 “The test for qualified immunity is: (1) identification of the

19 specific right being violated; (2) determination of whether the

20 right was so clearly established as to alert a reasonable officer

21 to its constitutional parameters; and (3) a determination of

22 whether a reasonable officer would have believed that the policy

23 or decision in question was lawful.” McDade v. West, 223 F.3d

24 1135, 1142 (9th Cir. 2000).

25 “Once the defense of qualified immunity is raised by

26 the defendant, the plaintiff bears the burden of showing that the

27 rights allegedly violated were ‘clearly established.’” LSO, Ltd.

28 v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). “If plaintiff

1 carries this burden, then the officer[] must prove that [his]

2 conduct was reasonable even though it might have violated

3 constitutional standards.” Romero v. Kitsap Cnty., 931 F.2d 624,

4 627 (9th Cir. 1991).

5 A. Determining What Constitutes Clearly Established Law

6 Whether the unlawfulness of the conduct at issue is

7 clearly established “depends largely upon the level of generality

8 at which the relevant ‘legal rule’ is to be identified.” Wilson

9 v. Layne, 526 U.S. 603, 614 (1999). The Supreme Court’s “cases

10 [have] establish[ed] that the right the official is alleged to

11 have violated must have been ‘clearly established’ in a more

12 particularized, and hence more relevant, sense: The contours of

13 the right must be sufficiently clear that a reasonable official

14 would understand that what he is doing violates that right.”

15 Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Vos v.

16 City of Newport Beach, 892 F.2d 1024, 1035 (9th Cir. 2018) (“The

17 Supreme Court has repeatedly admonished courts not to define

18 clearly established law at a high level of generality.”

19 (quotations omitted)).

20 “This is not to say that an official action is

21 protected by qualified immunity unless the very action in

22 question has previously been held unlawful, but it is to say that

23 in light of pre-existing law the unlawfulness must be apparent.”

24 Anderson, 483 U.S. at 640 (citation omitted). In other words,

25 “[f]or a right to be clearly established, case law must

26 ordinarily have been earlier developed in such a concrete and

27 factually defined context to make it obvious to all reasonable

28 government actors, in the defendant's place, that what he is

1 doing violates federal law.” Shafer v. Cnty. of Santa Barbara,

2 868 F.3d 1110, 1117 (9th Cir. 2017); see also Reichle v. Howards,

3 566 U.S. 658, 664 (2012) (for a right to be clearly established,

4 “existing precedent must have placed the statutory or

5 constitutional question beyond debate.”).

6 “Although the Supreme Court has provided little

7 guidance as to where courts should look to determine whether a

8 particular right was clearly established at the time of the

9 injury,” courts “in the Ninth Circuit begin [their] inquiry by

10 looking to binding precedent.” Hopkins v. Bonvicino, 573 F.3d

11 752, 772 (9th Cir. 2009) (citation modified). “If the right is

12 clearly established by decisional authority of the Supreme Court

13 or this Circuit, [the] inquiry should come to an end.” Id.

14 B. Clearly Established Law Regarding Outdoor Exercise

15 While the Ninth Circuit has decried the deprivation of

16 outdoor exercise in various instances, it has never held that the

17 lack of outdoor exercise for prisoners per se constitutes an

18 Eighth Amendment violation. Although it has held that “some form

19 of regular outdoor exercise is extremely important to the

20 psychological and physical well being of . . . inmates,” Spain v.

21 Procunier, 600 F.2d 189, 199 (9th Cir. 1979), it has not clearly

22 established that the deprivation of outdoor exercise for a

23 temporary period, offset in part by the maintenance of other

24 privileges, violates the Eighth Amendment.

25 In Spain, the Ninth Circuit found that denying inmates

26 outdoor exercise privileges constituted an Eighth Amendment

27 violation only when viewed in conjunction with “[s]everal [other]

28 factors”: the inmates were in “continuous segregation, spending

1 virtually 24 hours every day in their cells with only meager out-

2 of-cell movements and corridor exercise,” had “minimal” contact

3 with “other persons,” and lived in “an atmosphere of fear and

4 apprehension.” Id.

5 In the years following Spain, in dealing with the

6 deprivation of outdoor exercise, the Ninth Circuit has required a

7 showing of harsh conditions beyond simply being deprived of

8 outdoor exercise in order to constitute an Eighth Amendment

9 violation. For example, in Keenan v. Hall, 83 F.3d 1083, 1089

10 (9th Cir. 1996), opinion amended on denial of reh'g, 135 F.3d

11 1318 (9th Cir. 1998), the court emphasized that the inmates were

12 “confined to continuous and long-term segregation.” Also, in

13 Thomas v. Ponder, 611 F.3d 1144, 1146, 1152-53 (9th Cir. 2010)

14 the inmate was not just deprived of outdoor exercise but was

15 confined to the maximum security housing unit. See also Allen v.

16 Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994) (prison official not

17 entitled to qualified immunity when prisoner was largely deprived

18 of outdoor exercise for six weeks while being “indefinite[ly]”

19 housed in special holding unit “under admittedly ‘harsh’

20 conditions”).

21 The court sees nothing per se cruel or unusual in

22 requiring prisoners to exercise indoors rather than out-of-doors.

23 Indeed, weather and air quality are often better indoors, and

24 many people, even those who are not incarcerated, choose to

25 exercise indoors. For that reason, the Ninth Circuit has

26 repeatedly held that prison officials who suspended outdoor

27 exercise privileges during outbreaks of prison violence or to

28 mitigate violent prisoners were either entitled to qualified

1 immunity or did not violate the Eighth Amendment. See, e.g.,

2 Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (prison

3 officials who denied inmate outdoor exercise privileges during

4 period of prison violence entitled to qualified immunity);

5 LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993) (no Eighth

6 Amendment violation when inmate was deprived of outdoor exercise

7 privileges for approximately five years because of violent

8 disciplinary infractions); Hayward v. Procunier, 629 F.2d 599,

9 603 (9th Cir. 1980) (no Eighth Amendment violation where prison

10 officials instituted month-long deprivation of outdoor exercise

11 privileges during prison lockdown), cert. denied, 451 U.S. 937

12 (1981); Corona v. Knowles, 687 F.App’x 602, 603 (9th Cir. 2017)

13 (prison warden who deprived inmate of outdoor exercise for

14 approximately five months in response to violent attack on prison

15 officials entitled to qualified immunity at summary judgment).

16 But the Ninth Circuit has yet to determine the

17 circumstances under which a temporary deprivation of outdoor

18 exercise for an inmate not subject to “continuous and long-term

19 segregation,” Keenan, 83 F.3d at 1089, or otherwise “harsh

20 conditions,” Allen, 48 F.3d at 1088, rises to the level of an

21 Eighth Amendment violation. Cf. Rhoden v. Mayberg, No. 1:07-cv-

22 01151 BLW LMB, 2011 WL 219992, at *3 (E.D. Cal. Jan. 21, 2011)

23 (“No clearly established law exists governing what combination of

24 indoor and outdoor exercise is appropriate for inmates . . .

25 where ‘harsh’ living conditions are not at issue, but where

26 facility staff must take into consideration the possible health

27 risks attendant with high summer temperatures.”), aff’d, 473

28 F.App’x 737 (9th Cir. 2012).

1 Indeed, the Ninth Circuit has suggested that outdoor

2 exercise may not be required at all so long as “otherwise

3 meaningful recreation” is provided to inmates. Shorter v. Baca,

4 895 F.3d 1176, 1185 (9th Cir. 2018); see also Norbert, 10 F.4th

5 at 929 (“[W]e have not imposed a rigid requirement of outdoor

6 exercise regardless of the other opportunities for physical

7 exercise that a correctional institution affords.”). Thus, no

8 clearly established law exists regarding whether, and how much,

9 outdoor exercise is required for inmates not subject to harsh

10 conditions.

11 II. Conclusion

12 It is important not to forget that the events giving

13 rise to this lawsuit occurred during the height of the Covid-19

14 pandemic, during which Covid-19 was a “quickly evolving area of

15 science . . . about which scientific conclusions have been hotly

16 contested.” Høeg v. Newsom, 652 F. Supp. 3d 1172, 1188 (E.D. Cal.

17 2023). At the time, “COVID-19 [wa]s a novel, highly infectious

18 virus that . . . resulted in lockdowns of entire countries around

19 the globe to stop the spread of the virus.” Torres v. Milusnic,

20 472 F. Supp. 3d 713, 727 (C.D. Cal. 2020). Even in noncustodial

21 settings, quarantines, masking, and social distancing were the

22 order of the day.

23 “The novel nature of COVID-19 and the atmosphere of

24 confusion concerning the proper methods of addressing it are

25 particularly salient here given that the events alleged in the

26 complaint occurred in” 2021, approximately one year “into the

27 pandemic.” Cox v. Bal, No. 2:22-cv-00804 WBS EFB, 2024 WL

28 4977193, at *2 (E.D. Cal. Dec. 4, 2024). “With this context in

ee ne I OO EOE IE REE IIE IIE IEE ONDE III I OSE OE OE EES

1 mind, it is clear that . . . prison officials were trying to do

2 the best they could in unprecedented circumstances,” id., by

3 penalizing an inmate for breaching the very safety protocols

4 designed to curb the spread of the pandemic.

5 Viewing the evidence in the light most favorable to

6 | plaintiff, the court finds that plaintiff’s conditions of

7 | confinement fall short of the extreme circumstances in Spain and

8 its progeny. Because plaintiff has failed to show the existence

9 | of clearly established law regarding when a temporary deprivation

10 of outdoor exercise for inmates not subject to harsh conditions

11 constitutes an Eighth Amendment violation, defendant is entitled

12 to qualified immunity.

13 Qualified immunity protects “all but the plainly

14 incompetent or those who knowingly violate the law.” Malley v.

15 | Briggs, 475 U.S. 335, 341 (1986). Given the circumstances of

16 this case, this court cannot conclude that Lt. Pittsley was

17 plainly incompetent or knowingly violated the law. Accordingly,

18 because the court finds that defendant is entitled to gualified

19 immunity, it does not reach the question of whether defendant’s

20 conduct in fact violated plaintiff’s Highth Amendment rights.

21 IT IS THEREFORE ORDERED that plaintiff’s motion for

22 summary judgment (Docket No. 22) be, and the same hereby is

23 DENIED;

24 AND IT IS FURTHER ORDERED that defendant’s motion for

25 summary judgment (Docket No. 36) be, and the same hereby is,

26 GRANTED on the ground of qualified immunity.

27 Dated: September 30, 2025 dete ak. 4) 4

28 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE