Cardenas-Ornelas v. Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS CARDENAS-ORNELAS, No. 24-6755

D.C. No.

Plaintiff - Appellee,

2:21-cv-00030-

ART-MDC

v.

CALVIN JOHNSON; HAROLD

WICKHAM; CHARLES DANIELS; OPINION

GARY PICCININI; TIMOTHY

STRUCK; ROBERT OWENS;

JESSIE BRIGHTWELL; MANUEL

PORTILLO; TIMOTHY JOHNSON,

Defendants - Appellants,

and

J. ALCOCK, JULIO CALDERIN,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Anne R. Traum, District Judge, Presiding

Argued and Submitted October 9, 2025

Las Vegas, Nevada

Filed January 29, 2026

2 CARDENAS-ORNELAS V. JOHNSON

Before: Mark J. Bennett, Gabriel P. Sanchez, and Holly A.

Thomas, Circuit Judges.

Opinion by Judge Bennett

SUMMARY *

Qualified Immunity

The panel affirmed in part and reversed in part the

district court’s denial, on summary judgment, of qualified

immunity to Warden Calvin Johnson in an action brought

pursuant to 42 U.S.C. § 1983 and state law by Luis

Cardenas-Ornelas, a Nevada state prisoner, alleging

constitutional violations in connection with his quarantine

during the COVID-19 pandemic.

Cardenas-Ornelas alleged that during the COVID-19

pandemic staff at High Desert State Prison denied him

outdoor exercise in violation of the Eighth Amendment,

despite ordering him to work and permitting yard time for

inmates in other units, and treated him and his unit

differently from others in violation of the Fourteenth

Amendment.

The panel held the district court properly denied Warden

Johnson qualified immunity on the Eighth Amendment

claim. At the time of the alleged deprivation, a prisoner’s

Eighth Amendment right to outdoor exercise or otherwise

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CARDENAS-ORNELAS V. JOHNSON 3

meaningful opportunities for recreation was clearly

established. Viewing the evidence in the light most

favorable to Cardenas-Ornelas, he presented sufficient

evidence which raised triable issues of fact on both the

objective and subjective prongs of his Eighth Amendment

claim.

The panel reversed the district court’s denial of qualified

immunity to Warden Johnson on the Fourteenth Amendment

claim. Cardenas-Ornelas did not establish a genuine dispute

of material fact because he failed to introduce summary

judgment evidence that ruled out every conceivable basis

which might support the alleged differences in yard time

afforded Cardenas-Ornelas’s unit and other units, or

Cardenas-Ornelas and other inmates.

The panel addressed Warden Johnson’s remaining

arguments in a concurrently filed memorandum disposition.

COUNSEL

Allie Zenwirth (argued), Dylan Brenner, Nicholas

Castellano, and Sara Orton, Certified Law Students; Aaron

Littman, Supervising Attorney; UCLA School of Law, Los

Angeles, California; Samuel Weiss, Supervising Attorney,

Rights Behind Bars, Washington, D.C.; for Plaintiff-

Appellee.

Chris Davis (argued), Deputy Attorney General; Aaron D.

Ford, Nevada Attorney General; Office of the Nevada

Attorney General, Las Vegas, Nevada; for Defendants-

Appellees.

4 CARDENAS-ORNELAS V. JOHNSON

OPINION

BENNETT, Circuit Judge:

Luis Cardenas-Ornelas, a prisoner in the custody of the

Nevada Department of Corrections (“NDOC”), brought this

action pursuant to 42 U.S.C. § 1983, alleging that staff at

High Desert State Prison (“HDSP”) denied him outdoor

exercise in violation of the Eighth Amendment and treated

him and his unit differently from others in violation of the

Fourteenth Amendment. Cardenas-Ornelas also brought

analogous claims under the Nevada Constitution. The

district court denied summary judgment on certain of these

claims against Warden Calvin Johnson, and Warden

Johnson appealed. 1 We affirm in part, reverse in part, and

remand. 2

I.

The focus of this appeal is Cardenas-Ornelas’s claim

that, during the COVID-19 pandemic, HDSP staff denied

him outdoor exercise—despite ordering him to work and

permitting yard time for inmates in other units. In early

2020, Cardenas-Ornelas was housed at HDSP and assigned

to Unit 9, a protective segregation unit. HDSP allowed

Unit 9 inmates to work in Prison Industries, where only

Unit 9 inmates worked. By working in Prison Industries,

eligible inmates could “earn wages and good time credits.”

1

The Notice of Appeal was filed by all Defendants. The opening brief

makes clear, however, that the only Appellant is Warden Calvin Johnson.

2

In this opinion, we review the district court’s denial of Warden

Johnson’s assertion of qualified immunity. In a concurrently filed

memorandum disposition, we address Warden Johnson’s remaining

arguments. In that disposition, we affirm in part and reverse in part.

CARDENAS-ORNELAS V. JOHNSON 5

Defendants assert that, during the COVID-19 pandemic, it

was possible to carry out social distancing and contact

tracing in the enclosed Prison Industries warehouse, but not

in the outdoor yard, where inmates from different units

mixed freely. Defendants also contend that they disinfected

the bays where inmates in Prison Industries worked. But

Cardenas-Ornelas claims that he and many other inmates

worked in very close quarters.

A.

In March 2020, Unit 9 was placed on quarantine after a

canteen staff member who had been in close contact with

Unit 9 inmates tested positive for COVID-19. After that

quarantine ended in April 2020, Unit 9 was sent back to

work in Prison Industries. Unit 9, however, continued to be

denied yard time.

In May 2020, after an inmate tested positive for COVID-

19, HDSP locked down. Defendants contend that “inmates

could still exercise in their cell.” After more inmates tested

positive, all were isolated for several weeks. While Unit 9

remained in quarantine without yard time, other units

regained yard time.

In December 2020, after some Unit 9 inmates tested

positive, Unit 9 was again placed on quarantine but, on

several days, was still ordered to work at Prison Industries.

Cardenas-Ornelas claims that this was despite HDSP staff’s

awareness that forty-eight Unit 9 inmates had just tested

positive for COVID-19 and that other Unit 9 inmates were

exhibiting symptoms.

Cardenas-Ornelas alleges that between March 2020 and

July 2021, he was denied almost all outdoor exercise, and

6 CARDENAS-ORNELAS V. JOHNSON

that this caused him anxiety, depression, muscle loss, and

joint pain.

B.

In June 2020, Cardenas-Ornelas filed an informal

grievance alleging the denial of his constitutional rights to

exercise and yard time. Sergeant Timothy Struck denied the

informal grievance because the lockdowns were needed to

protect “the health and safety of all inmates.”

In August 2020, Cardenas-Ornelas filed a first-level

grievance alleging that he was “confined to [his] cell for 23

to 23 1/2 hours a day except for when [he went] to work

which [was] for 8 to 9 hours in a crowded warehouse with

about 130 other inmates.” Warden Johnson denied the

grievance, explaining that “NDOC has not placed any

institution on lock-down but has quarantined in an effort to

adhere to important Center[s] for Disease Control and

prevention guidelines.” Addressing Cardenas-Ornelas’s

working conditions, Warden Johnson noted that “[a]fter

receiving medical clearance, Unit 9 inmate workers received

authorization to return to work as early as April 27, 2020,”

and that safety measures were in place to prevent COVID-19

spread in Prison Industries. Addressing the continued denial

of yard time, Warden Johnson explained that “[t]he

operations of inmates classified to Administrative and

Disciplinary segregation continued as normal as possible

because they [we]re equipped with the resources needed

(rec. cages, locked showers, phone access),” implying that

HDSP lacked the resources to provide protective segregation

inmates with yard time. Cardenas-Ornelas then filed a

second-level grievance, which was denied by Harold

Wickham, Deputy Director of Programs for NDOC.

CARDENAS-ORNELAS V. JOHNSON 7

C.

In January 2021, Cardenas-Ornelas filed a pro se

complaint under 42 U.S.C. § 1983 and Nevada state law

against various HDSP officials, seeking declaratory and

injunctive relief and monetary damages. The district court

screened the complaint and allowed Cardenas-Ornelas to

proceed on several claims, including claims alleging that

Defendants’ denial of outdoor exercise violated prohibitions

against cruel and unusual punishment under the Eighth

Amendment, guarantees of equal protection under the

Fourteenth Amendment, and analogous protections under

the Nevada Constitution.3

In October 2023, Defendants moved for summary

judgment. As relevant here, the district court denied Warden

Johnson summary judgment on Cardenas-Ornelas’s

outdoor-exercise claims alleging cruel and unusual

punishment and equal protection violations. 4 In so doing,

the district court denied Warden Johnson’s assertion of

qualified immunity on those claims. Warden Johnson timely

appealed.

3

The other claims that survived screening were: (1) an Eighth

Amendment claim based on an alleged policy that required officers to

come to work after they reported contact with COVID-19 infected

people, (2) a First Amendment claim alleging interference with mail,

(3) federal and state free speech claims based on the alleged extended

prohibition of all phone calls, and (4) federal and state equal protection

claims based on the alleged denial of all phone calls.

4

On these two claims, the district court granted summary judgment to

all Defendants other than Warden Johnson based on their lack of

personal participation in the alleged violations. On all other claims, the

district court granted summary judgment for Defendants.

8 CARDENAS-ORNELAS V. JOHNSON

II.

Cardenas-Ornelas contends that we lack jurisdiction

over this interlocutory appeal. But because the district court

rejected Warden Johnson’s assertion of qualified immunity,

we have jurisdiction under the collateral order doctrine. See

Johnson v. Myers, 129 F.4th 1189, 1193 (9th Cir. 2025). Our

jurisdiction, however, “does not extend to claims in which

the determination of qualified immunity depends on

disputed issues of material fact.” Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001) (per curiam). Thus, in reviewing

the district court’s denial of qualified immunity, we

“assum[e] that the version of the material facts asserted by

the non-moving party is correct.” Id.

We review de novo a district court’s grant or denial of

summary judgment, “including officers’ entitlement to

qualified immunity.” Jones v. City of North Las Vegas, 150

F.4th 1030, 1035 (9th Cir. 2025).

III.

Warden Johnson argues that he is entitled to qualified

immunity on the Eighth Amendment and Fourteenth

Amendment claims. We affirm the district court’s denial of

qualified immunity on the Eighth Amendment claim but

reverse the district court’s denial of qualified immunity on

the Fourteenth Amendment claim.

Qualified immunity shields government officials

performing discretionary functions “from liability for civil

damages” when “their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly

established only when “[t]he contours of the right [are]

CARDENAS-ORNELAS V. JOHNSON 9

sufficiently clear [such] that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). We

therefore must decide “whether ‘the officer’s conduct

violated a constitutional right’ and whether ‘the right was

clearly established’ at the time of the alleged misconduct.”

Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part

on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009)). Our inquiry may proceed in any order. Id.

A.

On the Eighth Amendment claim, the district court

properly denied Warden Johnson qualified immunity. To

violate the Eighth Amendment, the prison official’s alleged

deprivation “must be, objectively, ‘sufficiently serious,’”

and the “prison official must have a ‘sufficiently culpable

state of mind.’” Farmer v. Brennan, 511 U.S. 825, 834

(1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297–98

(1991)). “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 . . . .” Wilson, 501 U.S. at 304 (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)).

We start our inquiry by considering whether, at the time

of the alleged deprivation, Cardenas-Ornelas had a clearly

established right to outdoor exercise under the Eighth

Amendment. By 2020, our case law had clearly established

a prisoner’s Eighth Amendment right to outdoor exercise or

otherwise meaningful opportunities for recreation. See

Shorter v. Baca, 895 F.3d 1176, 1185–86 (9th Cir. 2018)

10 CARDENAS-ORNELAS V. JOHNSON

(collecting cases). “Our case law uniformly stresse[d] the

vital importance of exercise for prisoners.” Thomas v.

Ponder, 611 F.3d 1144, 1152 (9th Cir. 2010). We had said

that exercise is “one of the basic human necessities protected

by the Eighth Amendment.” LeMaire v. Maass, 12 F.3d

1444, 1457 (9th Cir. 1993). And though on more severe

facts, we had held specifically that prisoners were

unconstitutionally denied outdoor exercise when they were

confined in small cells around the clock for more than four

years. Spain v. Procunier, 600 F.2d 189, 199–200 (9th Cir.

1979). We therefore hold that, at the time of the alleged

deprivation, Cardenas-Ornelas had a clearly established

right to outdoor exercise or meaningful opportunities for

recreation.

The next question is whether a reasonable jury could find

that Warden Johnson violated that clearly established right.

We hold that Cardenas-Ornelas presented sufficient

evidence which, viewed in the light most favorable to him at

summary judgment, raised triable issues on both prongs of

his Eighth Amendment claim against Warden Johnson. On

the objective prong, evidence supported Cardenas-Ornelas’s

claim that he was “confined to [his] cell for 23 to 23 1/2

hours a day” except for when he went to work in Prison

Industries. And Defendants failed to introduce evidence that

recreational opportunities had been afforded to Unit 9 in and

after June 2020, while other units were allowed to resume

yard time. On the subjective prong, Cardenas-Ornelas

introduced evidence supporting his claim that Warden

Johnson had a sufficiently culpable state of mind—namely,

“deliberate indifference.” Hallett v. Morgan, 296 F.3d 732,

744 (9th Cir. 2002) (quoting Wilson, 501 U.S. at 297). “A

prison official acts with ‘deliberate indifference only if the

prison official knows of and disregards an excessive risk to

CARDENAS-ORNELAS V. JOHNSON 11

inmate health and safety.’” Toguchi v. Chung, 391 F.3d

1051, 1057 (9th Cir. 2004) (alterations accepted) (quoting

Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir.

2002), overruled in part on other grounds by Castro v.

County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en

banc)). Here, evidence supported the claim that Warden

Johnson was subjectively aware of the alleged risk because

Warden Johnson responded to Cardenas-Ornelas’s first-

level grievance, which alleged that Cardenas-Ornelas was

being “confined to [his] cell for 23 to 23 1/2 hours a day

except for when [he] got to work.” 5 Moreover, Warden

Johnson ordered Unit 9 inmates to work even as he denied

them yard time.

Addressing the objective prong, Warden Johnson asserts

that “walking from Unit 9 to the Prison Industries

Warehouse” and “work[ing] for eight hours a day, two days

a week” constituted “otherwise meaningful recreation” for

Cardenas-Ornelas because Prison Industries provided

“affirmative programs of training or rehabilitation.” This

argument relies mainly on Norbert v. City & County of San

Francisco, 10 F.4th 918 (9th Cir. 2021). In Norbert, we

affirmed the district court’s finding that “inmates were given

constitutionally sufficient recreation time” when inmates

were “offered at least 30 minutes of exercise time in the

[indoor] gyms seven days a week,” and “general population

inmates c[ould] access the day room for 4.5 hours on

weekdays and 8 hours on weekend days.” Id. at 933. Here,

5

For this reason, Warden Johnson’s argument that he was not personally

involved in any constitutional violation lacks merit. “[T]his is not a case

where the defendants claim that they were unaware of either the

circumstances resulting in the alleged deprivation or the likelihood that

the deprivation would occur.” Allen v. Sakai, 48 F.3d 1082, 1088 (9th

Cir. 1994).

12 CARDENAS-ORNELAS V. JOHNSON

by contrast, there is no evidence that Unit 9 inmates had any

access to meaningful opportunities for exercise between

March 18, 2020, and July 27, 2021. Viewed in the light most

favorable to Cardenas-Ornelas, “sorting cards or hangers” in

Prison Industries did not constitute otherwise meaningful

recreation. Nor did in-cell exercise. Thus, there is a genuine

factual dispute whether the alleged deprivation of exercise

was, objectively, sufficiently serious.

Addressing the subjective prong, Warden Johnson

argues that he cannot be found to have been deliberately

indifferent because he was merely following, and was not

required to reexamine, the medical judgments

communicated through NDOC’s COVID-19 protocols. But

there is a factual dispute regarding whether NDOC’s

COVID-19 protocols required the denial of yard time for

Unit 9 inmates for over a year. Moreover, Warden Johnson

personally reviewed and denied Cardenas-Ornelas’s

first-level grievance, which alleged that Cardenas-Ornelas

was being confined in his cell “for 23 to 23 1/2 hours a day”

except for when he was called to work in Prison Industries.

Thus, Warden Johnson failed to show at the summary

judgment stage that he is entitled to qualified immunity as

an official who was unaware of the prisoner’s complaints

and merely following NDOC’s COVID-19 protocols.

To be sure, even when the alleged deprivation of exercise

was, objectively, sufficiently serious, a prison official may

still be entitled to qualified immunity under the subjective

prong in extraordinary circumstances. In LeMaire v. Maass,

for example, we held that an inmate failed to show the prison

official’s culpable state of mind when the inmate had been

denied opportunities for exercise based on the inmate’s own

misconduct, which had “raise[d] serious and legitimate

security concerns within the prison.” 12 F.3d at 1458. Here,

CARDENAS-ORNELAS V. JOHNSON 13

however, Warden Johnson’s proffered justification does not

rule out deliberate indifference. He claims that he restricted

yard time for Unit 9 inmates to prevent the spread of

COVID-19—a rational explanation. But viewed in the light

most favorable to Cardenas-Ornelas, the non-movant,

Warden Johnson’s justification does not rule out deliberate

indifference because there is conflicting evidence which

shows Warden Johnson ordered Unit 9 to work despite the

risk of COVID-19. Indeed, Cardenas-Ornelas presented

evidence that Warden Johnson ordered Unit 9 inmates to

work even when many Unit 9 inmates were symptomatic or

had tested positive for COVID-19. Thus, there is a triable

issue whether Warden Johnson acted with deliberate

indifference when denying Unit 9 inmates yard time.

We therefore conclude that the district court properly

denied qualified immunity on Cardenas-Ornelas’s Eighth

Amendment claim against Warden Johnson. Our holding,

however, does not foreclose the trier of fact from making

factual determinations which could result in the post-trial

grant of qualified immunity on this claim for Warden

Johnson.

B.

On the Fourteenth Amendment claim alleging a violation

of equal protection, we conclude that Warden Johnson is

entitled to qualified immunity. Because Cardenas-Ornelas

does not allege any “classification [that] implicates a suspect

class or infringes on a fundamental right,” we review under

the rational basis standard. Bottinelli v. Salazar, 929 F.3d

1196, 1201 (9th Cir. 2019). We consider whether “there is

any reasonably conceivable state of facts that could provide

a rational basis for the classification,” FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993), including the

14 CARDENAS-ORNELAS V. JOHNSON

singling out of a “class of one,” Gerhart v. Lake County, 637

F.3d 1013, 1023 (9th Cir. 2011). Defendants “may not rely

on a classification whose relationship to an asserted goal is

so attenuated as to render the distinction arbitrary or

irrational.” City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 446 (1985). Cardenas-Ornelas bears the burden

“to negative every conceivable basis which might support”

the classification. Beach Commc’ns, 508 U.S. at 315

(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 364 (1973)).

On this claim, Cardenas-Ornelas did not establish a

genuine dispute of material fact because he failed to

introduce summary judgment evidence which ruled out

every conceivable basis which might support the alleged

differences in yard time afforded Unit 9 and other units, or

Cardenas-Ornelas and other inmates. Namely, confirmed

and suspected cases of COVID-19 infection in Unit 9

provided a possible justification for continuing to deny yard

time for inmates in Unit 9 while reopening the yard to

inmates in other units. This justification was not “so

attenuated” from the goal of preventing the spread of

COVID-19 at HDSP “as to render the distinction arbitrary or

irrational.” City of Cleburne, 473 U.S. at 446.

In denying qualified immunity on this claim, the district

court erred by crediting allegations in the complaint which

were unsworn and unsupported by evidence in the record.

See Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018)

(holding that parties, even pro se inmates, cannot rely on

“statements in [their] district court [briefing] as competent

summary judgment evidence”). “Although we do not

ordinarily have jurisdiction on an interlocutory appeal to

review a denial of qualified immunity based on the existence

of a disputed fact, ‘when there is an allegation about the

CARDENAS-ORNELAS V. JOHNSON 15

conduct part of the equation, but insufficient evidence of that

conduct to create a genuine issue of material fact, our cases

permit review.’” Foster v. City of Indio, 908 F.3d 1204,

1217 n.10 (9th Cir. 2018) (per curiam) (alteration accepted)

(quoting Jeffers, 267 F.3d at 907).

Cardenas-Ornelas alleged in his complaint that he heard

“a number of officers” say that “Warden Johnson does not

like protective segregation (‘P.S.’) inmates, and that this

allows him to lock down the P.S. units.” But that statement

was not “based on personal knowledge” and did not “set[]

forth the requisite facts with specificity,” and thus could not

“serve as an affidavit for purposes of summary judgment.”

Moran v. Selig, 447 F.3d 748, 759 n.16 (9th Cir. 2006).

Further, Cardenas-Ornelas failed to “identify or submit some

competent evidence,” Soto, 882 F.3d at 872, to support his

claim that Warden Johnson treated Unit 9 inmates

differently based on a personal dislike of protective

segregation inmates. Thus, the district court erred in

concluding that Cardenas-Ornelas’s “claims regarding

Warden Johnson’s dislike of protective segregation inmates

and Defendants’ failure to refute these claims” created a

genuine dispute of material fact which precluded summary

judgment. We accordingly reverse the district court’s denial

of qualified immunity to Warden Johnson on

Cardenas-Ornelas’s Fourteenth Amendment claim.

CONCLUSION

We affirm the district court’s denial of qualified

immunity on the Eighth Amendment claim, reverse the

district court’s denial of qualified immunity on the

Fourteenth Amendment claim, and we remand for further

proceedings consistent with this opinion and the

concurrently filed memorandum disposition.

16 CARDENAS-ORNELAS V. JOHNSON

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.