Thomas v. Ponder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OTIS MICHAEL THOMAS,  No. 09-15522

Plaintiff-Appellant,

D.C. No.

v.

 3:06-cv-03581-

G. PONDER; M. J. KIRCHER; M. S. MMC

EVANS,

OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, Senior United States District

Judge, Presiding

Argued and Submitted

April 7, 2010—Pasadena, California

Filed July 16, 2010

Before: Daniel M. Friedman,* Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Friedman

*The Honorable Daniel M. Friedman, United States Circuit Judge for

the Federal Circuit, sitting by designation.

10285

THOMAS v. PONDER 10289

COUNSEL

Jeremy Maltby and Jonathan Wells Monson (argued),

O’Melveny & Myers, LLP, Los Angeles, California; Rebecca

S. Hekman (argued), UCLA School of Law Ninth Circuit

Clinic, Los Angeles, California, for the plaintiff-appellant.

Edmund G. Brown, Jr., Rochelle C. East, Thomas S. Patter-

son, Neah Huynh (argued), Office of the California Attorney

General, San Francisco, California, for the defendants-

appellees.

OPINION

REINHARDT, United States Circuit Judge:

Otis Thomas brought this suit seeking to establish that

prison officials (individually and collectively “prison offi-

cials”) violated his Eighth Amendment rights by denying him

outdoor exercise for 13 months and 25 days while he was in

a maximum security housing unit. The prison officials condi-

tioned Thomas’s access to outdoor exercise upon his signing

a “pledge form” promising that he would not engage in vio-

lence while participating in prison programs. Thomas signed

contemporaneous interview forms promising to “program

non-violently” but refused to sign the pledge form itself. The

prison officials insisted that only the pledge form would do

and continued to refuse to allow him any opportunity to exer-

cise until he signed the form.

The district court granted summary judgment for the prison

officials on Thomas’s 42 U.S.C. § 1983 claim. It concluded

that the denial of out-of-cell exercise for such an extended

period of time was “sufficiently serious” to constitute a valid

Eighth Amendment claim, but held that Thomas failed to

demonstrate that there was a genuine issue of material fact as

10290 THOMAS v. PONDER

to whether the prison officials had acted with “deliberate

indifference.” First, it concluded that Thomas had failed to

show that the prison officials believed that the risk of harm to

Thomas’s health was other than “insubstantial or nonexis-

tent.” Second, it concluded that there was insufficient evi-

dence to establish that the prison officials acted unreasonably.

The district court concluded that the prison officials’ depriva-

tion of Thomas’s right to exercise was reasonable because of

Thomas’s disciplinary history and the “genuine emergency”

at the prison, and because Thomas had the opportunity to sign

the pledge form at any time, and upon signing would have

been permitted to exercise out-of-cell.

We agree with the district court’s conclusion that the prison

officials’ denial of out-of-cell exercise for such an extended

period of time was “sufficiently serious” to constitute a valid

Eighth Amendment claim, but reject the district court’s other

rulings. We hold that as a matter of law the serious risk to

Thomas’s health posed by this extended deprivation of a basic

human necessity was “obvious” to the prison officials. We

also hold that a material factual issue exists as to whether the

prison officials’ actions were reasonable, in light of Thomas’s

limited disciplinary record, the security conditions at the

prison for the last 11 of the 14 months that Thomas was

deprived of exercise, and the prison officials’ willingness to

allow Thomas to resume the regular course of exercise upon

signing the formal pledge form. We therefore reverse the dis-

trict court and remand for further proceedings.

I. BACKGROUND

A. FACTUAL BACKGROUND

Otis Thomas (“Thomas”) was a prisoner housed in Facility

C at the Salinas Valley State Prison (“SVSP”) in 2005-06.

Facility C is a level IV maximum security housing unit with

the SVSP. Inmates are housed in Facility C for a variety of

reasons, including “a history of assaultive behavior and disci-

THOMAS v. PONDER 10291

plinary actions, gang-related convictions, and lengthy or life

sentences.” On July 14, 2005, a Facility C inmate using a

homemade knife stabbed and seriously wounded two correc-

tional officers.1 In response, the prison officials placed the

SVSP on lockdown from July 14, 2005 to September 9, 2005.2

On September 9, 2005, prison officials introduced a “modi-

fied program” allowing “non-contact visits only, suspended

quarterly packages and curtailed outdoor recreation.” Under

this modified program, prisoners were deprived of all out-of-

cell exercise, fed in their cells, subjected to strip searches,

and, on the rare occasions that they were permitted to leave

their cells, were escorted in restraints.

On October 17, 2005, the Captain of Facility C, G. Ponder,

sent a memorandum to the Facility C inmates that explained

what they would be required to do in order to return from the

“modified” program to a “normal” program. The memoran-

dum stated, in relevant part:

I am developing a process to help the facility work

towards providing inmates that want to program

without violence an opportunity to do so. The choice

to program will be in the hands of each individual

inmate. The first step in this process will be inter-

views. The next step will be your commitment to

program without violence and verification of this

commitment by signing that fact. The next process

will involve Correctional Officers identifying

inmates that have shown willingness to program and

providing a list of those inmates to supervisory staff.

1

Thomas was not involved with this incident, or with any other incident

during this time period.

2

“Lockdown” occurs when prison officials suspend activities and privi-

leges for a portion of the prison’s population and “all but essential func-

tions are suspended in those affected housing units or sub-facilities, e.g.,

yard, canteen draws, religious services, and visiting.” 15 Cal. Admin.

Code § 3000.

10292 THOMAS v. PONDER

Inmates that fail to act in accordance with Depart-

mental rules and Institution procedures will result in

housing and program changes. Inmates are advised

that their privileges and access to programs will be

curtailed until you as an individual successfully

comply with this process.

Ponder’s program involved interviewing each inmate at least

twice. At each interview, the interviewee was required to sign

a “pledge” that he was willing to follow the proposed program

without violence. Inmates whom the prison deemed “willing

to program without violence” were typically returned to “nor-

mal” programming after their initial interview or signing of

the pledge form. Ponder explained, in a sworn declaration,

that once an inmate signed the pledge his return to normal

programing was also dependent upon prison officials under-

taking a review of his case to affirm that “no other factors evi-

dence a propensity for violence.” Inmates who refused to sign

the pledge, declined interviews, or were otherwise deemed to

have not participated “meaningfully” in the interview process

remained on “modified” program status.

In accordance with this review policy, prison officials inter-

viewed Thomas several times between August 2005 and June

2006. Before beginning these interviews, prison officials

instructed Thomas to fill out forms. Thomas answered all of

the questions on these interview forms and then he and a

prison official signed all of the forms. The interview forms

were all identical and all included the following statement and

question: “Programming on a level IV general population

yard requires participation without violence. Are you willing

to commit to this type of program? If no, give details?” In

response to this question Thomas wrote “Yes.” Another ques-

tion was “Do you have any safety concerns?” to which

Thomas answered “No.” The question “If the facility were

returned to normal program, could you program without vio-

lence on a level IV general population yard with inmates from

all races/ethnics [sic] or past or present gang affiliations?”

THOMAS v. PONDER 10293

also appeared on each form, and in response to this question

Thomas also answered “Yes.”

After Thomas signed the forms, prison officials conducted

the interviews. During the interviews, prison officials gave

Thomas a pledge form and instructed him to sign. The pledge

form stated:

I am currently housed within Facility ‘C’ Salinas

Valley State Prison. I am also aware that this facility

is on a modified program status based upon several

acts of violence having occurred within the past 15

months.

By signing this document, I am advising staff that I

want to participate in the program review process

being implemented at this time. I am also stipulating

that I want to “do my own time” and will program

by not participating in gang violence.

I have been advised that my failure to act in accor-

dance with institutional rules and procedures may

result in program and housing changes. I am aware

that during the time I participate in the program

review process, I will retain my established

work/privilege group.

I am aware, if I am unassigned and I participate in

the program review process that my participation

does not constitute a credit earning assignment. Fur-

ther, I understand that my privileges and access to

programs will be curtailed until I successfully com-

plete this program and am returned to normal general

population program status.

I have been advised that the program review process

is ongoing and that I will be expected to maintain

compliance with regulations to participate. During

10294 THOMAS v. PONDER

the program review process I will be required to

interact with other inmates of all races and ethnicity

during all out of cell activities. The process and my

participation in it, is on-going and monitored. [sic]

During this period I understood that my progress and

suitability to remain in the program will be moni-

tored and evaluated by staff.

Thomas was later unable to recall whether he was asked to

sign the pledge form at every interview, but he stated that on

each occasion that he was asked to sign, he refused to do so.3

The prison refused to release Thomas from the modified pro-

gram and continued to deny him access to the outdoor exer-

cise yard, because he would not sign the pledge. A

Correctional Lieutenant in Facility C, Lieutenant J. Celaya,

subsequently explained that, because Thomas refused to sign

the pledge, he “posed an unknown risk and threat to prison

staff . . . .” Celaya also stated that Thomas “had prior disci-

plinary problems, and was suspected of gang involvement.”

Celaya conceded, however, that Thomas’s alleged gang

involvement was an unsubstantiated assumption. Moreover,

four other prisoners provided sworn declarations that the

prison had returned them to normal programming even though

they had never signed the pledge form.

3

Thomas’s reasons for refusing to sign the form are not immediately

evident from the record. Thomas has offered various explanations for his

refusal to sign. At one point, he stated that he refused to sign because he

believed that the pledge would provide for “endless punishment” or “un-

specified discipline” and would be used to force him to answer “questions

about other inmates,” when he was unwilling to do so. In his brief,

Thomas further explained that he:

did not object to pledging non-violence; rather, he believed that

California regulations did not allow the prison to deny inmates

exercise or other privileges for failing to sign such a “general

chrono” form, and was concerned that, by signing the form, he

might subject himself to discipline for an incident in which he

had no involvement.

THOMAS v. PONDER 10295

Thomas finally relented and signed the pledge form on

August 31, 2006, at which juncture the prison officials

released him from the modified program and restored his

exercise privileges.4 Thomas testified that he signed the

pledge because he was tired, severely stressed, and losing

weight. Prior to his singing the pledge, the prison officials had

denied Thomas outdoor exercise for a total of 13 months and

25 days.

B. PROCEDURAL BACKGROUND

On June 5, 2006, while incarcerated at Centinela State

Prison in California, Thomas filed a 42 U.S.C. § 1983 action

against SVSP prison officials. Thomas amended this com-

plaint on July 5, 2006. In his amended complaint Thomas

alleged, inter alia, that prison officials Captain Ponder, Offi-

cer Kircher, and Warden Evans violated his Eighth Amend-

ment rights by denying him access to the exercise yard for

almost 14 months. None of the other allegations in his

amended complaint is before us on this appeal.

The prison officials filed a motion for summary judgment

on Thomas’ Eighth Amendment claim and the district court

granted the motion. It stated that it recognized that “[e]xercise

is one of the most basic human necessities protected by the

Eighth Amendment” and that Thomas had shown that his

deprivation was sufficiently serious for a valid Eighth

Amendment claim. It concluded, however, that for two rea-

sons Thomas had failed to show that the prison officials acted

with “deliberate indifference,” an essential element of an

Eighth Amendment claim. First, it concluded that Thomas

could not show that the prison officials were “subjectively

aware” of the risk to Thomas’s health posed by the extended

deprivation of exercise because “the undisputed evidence

shows they believed the risk of harm to [Thomas] was insub-

4

Thomas asserts that this was the second time he signed a pledge form.

The first time was July 26, 2006.

10296 THOMAS v. PONDER

stantial or nonexistent’ because [he] could have signed the

pledge at any time and gained immediate access to outdoor

exercise.” Second, it concluded that by keeping Thomas in the

modified program, and denying him outdoor exercise, the

prison officials had acted “reasonably,” because:

(1) Facility C was placed on lockdown and then

modified program in response to a “genuine emer-

gency,” (2) there was a rational connection between

requiring inmates to sign the CDC-128-B pledge and

restoring institutional security, (3) plaintiff repeat-

edly refused to sign the pledge, (4) plaintiff had a

lengthy discipline history, which included refusing

to obey staff orders and threatening staff and other

inmates, and (5) as a result of plaintiff’s refusal to

sign the pledge and his disciplinary history, defen-

dants were unable to assess the level of threat plain-

tiff posed to staff and other inmates should he be

returned to a normal program. Further, . . . almost a

year after the July 14, 2005 stabbing incident,

through June 2006, there were several other docu-

mented threats and assaults that took place at SVSP

and in Facility C that threatened the safety and

security of the institution and hindered the ability of

staff to return to Facility C to normal programming.

Thomas timely appeals the summary judgment order as to his

Eighth Amendment claim.

II. ANALYSIS

We review de novo a district court’s grant of summary

judgment. McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th

Cir. 2008). The non-moving party’s evidence “is to be

believed, and all justifiable inferences are to be drawn in [his]

favor . . . . [his] version of any disputed issue of fact is thus

presumed correct.” Eastman Kodak Co. v. Image Technical

Services, Inc., 504 U.S. 451, 456 (1992) (internal quotation

THOMAS v. PONDER 10297

marks omitted). At this stage of proceedings, we do “not

weigh the evidence or determine the truth of the matter

[asserted], but only determine[ ] whether there is a genuine

issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054

(9th Cir. 1999) (en banc). “We will not reverse a district

court’s grant of summary judgment unless the party opposing

summary judgment has identified the evidence establishing a

genuine issue of material fact in its opposition to summary

judgment.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127,

1137 (9th Cir. 2009). An issue of material fact is genuine “if

there is sufficient evidence for a reasonable jury to return a

verdict for the non-moving party.” Long v. County of Los

Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

We construe liberally the filings and motions of a pro se

inmate in a civil suit. Bias v. Moynihan, 508 F.3d 1212 (9th

Cir. 2007) holds that an ordinary pro se litigant, like other liti-

gants, must comply strictly with the summary judgment rules.

Id. at 1219 (citing Jacobsen v. Filler, 790 F.2d 1362 (9th Cir.

1986)). Pro se inmates are, however, expressly exempted

from this rule:

It is the element of “choice” which most clearly dis-

tinguishes pro se prisoner cases from [ordinary pro

se cases] . . . . an inmate’s choice of self-

representation is less than voluntary; and, when that

unwilling self-representation is coupled with the fur-

ther obstacles placed in a prisoner’s path by his

incarceration—for example his limited access to

legal materials and to sources of proof—it seems

appropriate to apply the requirements of the sum-

mary judgment rule with less than strict literalness.

Jacobsen, 790 F.2d at 1365 n.4 (internal citations and quota-

tion marks omitted). We have, therefore, held consistently

that courts should construe liberally motion papers and plead-

ings filed by pro se inmates and should avoid applying sum-

mary judgment rules strictly. See also Frost v. Symington, 197

10298 THOMAS v. PONDER

F.3d 348, 352 (9th Cir. 1999). Liberal construction is thus the

appropriate standard to apply to Thomas’s filings in this case.

A. The district court’s ruling that there was insufficient

evidence to establish that the prison officials knew of a

serious risk of substantial harm to Thomas’s mental and

physical health is incorrect as a matter of law

[1] Under Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009),

an inmate seeking to prove an Eighth Amendment violation

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.” Id. at 812 (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)). The second step, show-

ing “deliberate indifference,” involves a two part inquiry.

First, the inmate must show that the prison officials were

aware of a “substantial risk of serious harm” to an inmate’s

health or safety.5 Farmer, 511 U.S. at 837. This part of our

inquiry may be satisfied if the inmate shows that the risk

posed by the deprivation is obvious. See id. at 842 (“[A] fact-

finder may conclude that a prison official knew of a substan-

tial risk [to a prisoner’s health] from the very fact that the risk

was obvious.”). Second, the inmate must show that the prison

officials had no “reasonable” justification for the deprivation,

in spite of that risk.6 See id. at 844 (“[P]rison officials who

actually knew of a substantial risk to inmate health or safety

may be found free from liability if they responded reason-

ably.”).

5

In its order, the district court erroneously considers whether the prison

officials were aware that Thomas was “suffering serious harm from the

deprivation” of exercise. The correct issue for consideration is, however,

whether the prison officials were subjectively aware of a “serious risk of

substantial harm.” Farmer, 511 U.S. at 837 (emphasis added); Helling v.

McKinney, 509 U.S. 25, 32 (1993) (emphasis added) (“That the Eighth

Amendment protects against future harm to inmates is not a novel proposi-

tion.”).

6

We discuss the “reasonableness” arguments infra.

THOMAS v. PONDER 10299

[2] The district court concluded correctly that the prison

officials’ denial of out-of-cell exercise to Thomas for 13

months and 25 days was “sufficiently serious” to constitute a

valid claim under the Eighth Amendment. As the Supreme

Court noted in Wilson v. Seiter, 501 U.S. 294 (1991), prison

officials may violate an inmate’s Eighth Amendment rights

when they deprive him of “a single identifiable human need

such as food, warmth, or exercise.” Id. at 304. Here, as the

district court noted, Thomas satisfies Foster and Farmer’s

objective test based on the undisputed fact that he was denied

outdoor exercise for the 13 months and 25 days. We have held

consistently that “ordinarily the lack of outside exercise for

extended periods is a sufficiently serious deprivation” for

Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d

1444, 1457 (9th Cir. 1993). A prohibition on outdoor exercise

of six weeks is a “sufficiently serious” deprivation to support

an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203

F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai,

48 F.3d 1082, 1086 (9th Cir. 1994).

After determining that an individual has shown objectively

that he was deprived of something “sufficiently serious,” we

must next consider whether the risk to the inmate was suffi-

ciently “obvious” to the prison officials that they must have

been aware of the severity of the deprivation, before we move

on to consider whether the deprivation was nonetheless rea-

sonable in light of all of the circumstances. The district court

appears, however, not to have considered whether the risk to

Thomas’s health was “obvious,” but instead determined that

it was “insubstantial or nonexistent,” because (i) Thomas

could have signed the form at any time, and (ii) Thomas had

a “substantial” disciplinary history and security conditions at

the prison were “acute.” In so doing, it bypassed a necessary

step in its inquiry, and proceeded instead directly to the ques-

tion of reasonableness. We therefore turn, in the first instance,

to the question that the district court erroneously omitted:

whether the risk to Thomas’s health was “obvious” to the

prison officials.

10300 THOMAS v. PONDER

[3] Any argument that the risk to Thomas’s health was not

“obvious” fails as a matter of law. See Farmer, 511 U.S. at

842. Farmer’s obviousness requirement does not necessitate

a showing that an individual prison official had specific

knowledge that harsh treatment of a particular inmate, in par-

ticular circumstances, would have a certain outcome. Rather,

we measure what is “obvious” in light of reason and the basic

general knowledge that a prison official may be presumed to

have obtained regarding the type of deprivation involved. Id.

For example, for the purposes of an obviousness analysis, a

prison warden is deemed to have the general knowledge that

is expected, at a minimum, of an individual performing the

functions of that job. He cannot disclaim an understanding

that is essential to the performance of his duties and that has

been announced in our cases for over 30 years. Id. (“if an

Eighth Amendment plaintiff presents evidence showing that

a substantial risk was . . . longstanding, pervasive, well-

documented, or expressly noted by prison officials in the past,

and the circumstances suggest that the defendant-official

being sued had been exposed to information concerning the

risk and thus ‘must have known’ about it” such evidence suf-

fices) (citations and quotations omitted).

[4] As the district court acknowledged, “[e]xercise is one

of the most basic human necessities protected by the Eighth

Amendment.” Like food, it is “a basic human need protected

by the Eighth Amendment.” Keenan v. Hall, 83 F.3d 1083,

1091 (9th Cir. 1996); see also Wilson, 501 U.S. at 304. Our

case law uniformly stresses the vital importance of exercise

for prisoners. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th

Cir. 1993) (“Exercise has been determined to be one of the

basic human necessities protected by the Eighth Amend-

ment.”); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (“There is substantial agreement among the cases in

this area that some form of regular outdoor exercise is

extremely important to the psychological and physical wellbe-

ing of the inmates.”).7 As we held in Foster, “if an inmate

7

At least one other circuit has reached a similar conclusion. See French

v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (holding that “[l]ack of

THOMAS v. PONDER 10301

presents evidence of very obvious and blatant circumstances

indicating that the prison official knew [a substantial risk of

serious harm] existed, then it is proper to infer that the official

must have known of the risk.” 554 F.3d at 814 (citation omit-

ted).

[5] It is undisputed by the parties that the prison officials

knew the length and scope of Thomas’s confinement without

outdoor exercise. Prison officials made and reviewed the deci-

sion to keep Thomas confined without out-of-cell exercise,

and Thomas submitted repeated written and oral complaints

to prison officials about his deprivation of out-of-cell exer-

cise. For over thirty years, we have emphasized that “some

form of regular outdoor exercise is extremely important to the

psychological and physical wellbeing of the inmates.” Spain,

600 F.2d at 199. California strictly regulates this “regular out-

door exercise,” ordinarily requiring prisons to provide inmates

held in the general population with at least three hours of

exercise per week and inmates held in segregation with at

least one hour of exercise per day. Cal. Code Regs. tit. 15,

§§ 1065, 3343(h) (2006). The same regulations prohibit disci-

plining inmates by depriving them of outdoor exercise for

more than ten days, absent extreme circumstances. Id.

§ 3322(c).

[6] In light of the above, we conclude that the prison offi-

cials were aware as a matter of law of the potential conse-

quences of depriving an inmate of out-of-cell exercise for an

extended period of time. The mere fact of the total deprivation

of Thomas’s right to out-of-cell exercise for almost fourteen

months is sufficient, in light of the established law, to render

it obvious to the prison officials that their actions posed a

“substantial risk of serious harm” to Thomas’s mental and

exercise may certainly rise to a constitutional violation. Where movement

is denied and muscles are allowed to atrophy, the health of the individual

is threatened and the state’s constitutional obligation is compromised”).

10302 THOMAS v. PONDER

physical health. We therefore reject the district court’s ruling

to the contrary.

B. A genuine issue of material fact exists as to whether

the prison officials acted reasonably in depriving Thomas

of all out-of-cell exercise for 13 months and 25 days in

light of all the circumstances

[7] The district court concluded that there was insufficient

evidence to establish that a genuine issue of material fact

existed as to whether the prison officials’ deprivation of

Thomas’s right to out-of-cell exercise was “reasonable.”

Given the record before us, and the seriousness of the risk to

which Thomas was subjected, it is difficult to conceive how

the prison officials actions would be deemed “reasonable.”

Nevertheless, the issue is one of fact that must be presented

to a fact-finder.

The district court found that the prison officials acted rea-

sonably in light of Thomas’s “lengthy disciplinary history”

and of other actual or threatened violence at Facility C in

2005 and 2006, and because Thomas could have signed the

pledge form at any time. We reverse this ruling, as well. We

hold that the evidence in the record demonstrates that

Thomas, at the least, raised a genuine issue of material fact as

to whether the prison officials acted reasonably in light of: the

serious risk to Thomas’s mental and physical health; the level

of documented assaults and threats at the facility during the

last 11 months Thomas was deprived of exercise; Thomas’s

limited disciplinary record; his execution of other forms pro-

vided by the prison in which he promised to “program non-

violently”; and the prison authorities’ failure to consider pro-

viding him with alternative opportunities to exercise.

In reaching its conclusion that the prison officials reason-

ably relied on Thomas’s disciplinary history when they

decided to deprive him of exercise for almost 14 months, the

district court relied on LeMaire v. Maass, 12 F.3d 1444 (9th

THOMAS v. PONDER 10303

Cir. 1993) in which a prisoner had attacked a prison guard,

“savagely attacked” another inmate, assaulted numerous

prison officers with hot water, toilet water, food, feces, and

urine, had at least 25 major rule violations in a two year

period, and attacked two prison officials as he exited an exer-

cise cubicle (an act “he vowed to repeat” if he were allowed

to exercise again). Id. at 1448, 1458. The LeMaire court found

that restricting such a prisoner’s exercise privileges was rea-

sonable “because he both abused them and represent[ed] a

grave security risk.” Id. at 1458. However, Thomas’s disci-

plinary history, as it appears in the record before us, bears

very little resemblance to LeMaire’s. Thomas’s record lists

only two disciplinary infractions: one episode of battery of an

inmate in 2003 and one threat of violence to an inmate in

2002. The only disciplinary infraction during Thomas’s 13-

month-25-day confinement without out-of-cell exercise was a

report filed by a prison official charging him with “willfully

obstructing a police officer” because he submitted a complaint

to the prison Warden about the officials’ refusal to allow him

to exercise. LeMaire, therefore, has little relevance to the

present case.

Furthermore, the evidence in the record demonstrates that

the sole reason that Thomas was kept on modified program-

ming was his failure to sign the pledge form, not any fear that

prison officials harbored about Thomas’s dangerousness. The

very fact that as soon as Thomas signed the pledge form he

was permitted to engage in out-of-cell exercise shows that the

prison officials did not consider him to be intrinsically dan-

gerous, but apparently thought that he was “dangerous” only

as long as he refused to sign the form. Both the district court

and the prison officials assert that if Thomas had “signed the

pledge at any time” he would have “gained immediate access

to outdoor exercise.”8 Thus, there was apparently nothing

8

The prison officials concede as much in their brief, where they state

that “as the district court noted . . . [Thomas] ‘could have signed the

pledge at any time and gained immediate access to outdoor exercise’

. . . . access to outdoor exercise was easily attainable . . . all he had to do

was simply sign the pledge form.’ ”

10304 THOMAS v. PONDER

about Thomas that warranted deprivation of out-of-cell exer-

cise other than the absence of his signature on the pledge. In

addition, the record also shows that, apart from his refusal to

sign the pledge form, Thomas cooperated with the multiple

interviewers, and committed in writing to non-violence in

separate contemporaneous interview forms. The district court

did not consider these contemporaneous signed interview

forms,9 even though they pose a significant obstacle to the

prison officials’ assertion that they deprived Thomas of out-

of-cell exercise because they were concerned that he posed a

threat of violence to other inmates—a threat that they later say

would have been alleviated had he signed the pledge itself.

In reaching its conclusion that the prison officials’ refusal

to allow Thomas to exercise outdoors was reasonable, the dis-

trict court also considered the history of violence at SVSP.

According to the district court, the prison officials acted rea-

sonably in depriving Thomas of exercise because they were

responding to a “genuine emergency.” We have held previ-

ously that prisons may curtail inmates’ outdoor exercise

“when a genuine emergency exists.” Specifically, “prison

officials may be more restrictive than they otherwise may be,

and certain services may be suspended temporarily.” Hop-

towit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) abrogated

on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

Such an emergency may occur following outbreaks of

extraordinary levels of violence in a prison. Norwood v.

Vance, 572 F.3d 626, 631 (9th Cir. 2009) (“When violence

rises to unusually high levels, prison officials can reasonably

believe it is lawful to temporarily restrict outdoor exercise to

help bring the violence under control.”)

9

The prison officials argue that the district court disregarded these forms

because “Thomas never alerted the district judge that these forms were rel-

evant to his outdoor-exercise claim.” Thomas, however, cited these forms

repeatedly in his opposition papers, including the first two pages of his

declaration.

THOMAS v. PONDER 10305

In this case, the prison officials make no substantial argu-

ment that the “emergency” caused by the July 14, 2005 inci-

dent in which a Facility C inmate stabbed two correctional

officers endured for the 13 months and 25 days that Thomas

was deprived of out-of-cell exercise. To the contrary, they

admit that the lockdown that the “emergency” precipitated

lasted for less than two months, from July 14, 2005 to Sep-

tember 9, 2005. Thereafter, the authorities introduced the

“modified program,” to which individual prisoners were sub-

ject until they signed the pledge. The record shows that no

further lockdown occurred at the facility, and 148 other Facil-

ity C inmates returned to normal programming while the

deprivation of Thomas’s out-of-cell exercise remained in

force.

The prison officials’ contention that from July 14, 2005

through June 2006 “there were several other documented

threats and assaults that took place at SVSP” does not estab-

lish that following the end of the lockdown on September 9,

2005, there was a “state of emergency” in the prison.10 Docu-

mented threats and assaults happen frequently in prisons.

Given that an emergency is different from normal prison con-

duct, an emergency cannot be deemed to exist simply because

there are documented threats and assaults from time to time—

otherwise every prison would be in a constant state of emer-

gency.

Indeed, Thomas’s case is readily distinguishable from our

“genuine emergency” cases, upon which the district court

relied. The district court cited, for example, Hayward v.

Procunier, 629 F.2d 599 (9th Cir. 1980), a case in which we

10

Thomas was deprived of exercise for a total of 13 months and 25 days.

For the first two months, the prison was on lockdown, for the remaining

11 months and 25 days it was not. During some part of nine of those

remaining 11 months, the “documented threats and assaults” are alleged

to have occurred. The prison officials offer no evidence that any incidents

of any kind occurred during the final two months prior to the date on

which Thomas signed the pledge and his exercise privileges were restored.

10306 THOMAS v. PONDER

ruled that a “genuine emergency” existed at San Quentin

prison in 1974 following a series of extremely violent inci-

dents. Id. at 600, 603. We held that a five-month lockdown of

the prison, including restrictions on out-of-cell exercise—

initially on all out of cell exercise, but with “[s]ome yard

exercise . . . permitted within a month after the lockdown

began”—was permissible in such circumstances. Id. at 600.

The extremely violent incidents, including “82 assaults with

weapons and 12 killings, as well as 71 cases of possession of

weapons and 2 attempted escapes,” id., at San Quentin in

1974 were, however, quite distinct from the single stabbing

incident, albeit of two guards, that occurred while Thomas

was a prisoner at SVSP.

Moreover, we held that the restrictions on outdoor exercise

imposed in Hayward were permissible in part because they

were temporary, and because the inmates in that case “were

allowed approximately the minimum exercise mandated in

Spain within a month after the imposition of the lockdown.”

Id. at 603. The prison officials contend that Thomas’s depri-

vation of out-of-cell exercise was, like that of Hayward, a

“temporary” measure, because Thomas could have signed the

pledge at any time. Thomas’s 13 month and 25 day confine-

ment without out-of-cell exercise was not, however, “tempo-

rary.” Whether a deprivation is temporary depends on the

expiration date, if any, of the prison’s policy, not on whether

an individual can escape its application by one means or

another. Here, the policy was of indefinite duration. In Thom-

as’s case the deprivation would have lasted even longer than

the almost 14 months it did, had Thomas not capitulated and

signed the form because the ban on exercise had begun to

affect his health.

The district court’s conclusion that the prison officials’ pol-

icy was “reasonable” is also highly questionable in light of the

absence of any evidence in the record that the prison officials

considered whether there were any alternative means of pro-

viding Thomas out-of-cell exercise. Even where security con-

THOMAS v. PONDER 10307

cerns might justify a limitation on permitting a prisoner “to

mingle with the general prison population” such concerns “do

not explain why other exercise arrangements [are] not made.”

Spain, 600 F.2d at 200; see also Lopez, 203 F.3d at 1133

(holding that even if denying Lopez access to the general rec-

reation yard was reasonable, “it does not explain why Lopez

was not given some other opportunity for outdoor exercise.”).

The prison officials argue that “Thomas was offered alterna-

tives to no exercise, when Defendants offered him opportuni-

ties for outdoor exercise once in August 2005, once in

September 2005, once in October 2005, twice in November

2005, and an unspecified number of times between January

2006 and June 2006.” The occasions cited by the prison offi-

cials are, in each case, those on which Thomas was offered

the pledge form and refused to sign, not occasions on which

he was offered “some other opportunity for outdoor exercise,”

and declined to accept that offer.

The prison officials’ repeated assertion that the deprivation

of exercise was “reasonable” because Thomas could have

signed the pledge form at any time and thereafter would been

permitted to exercise misses the point completely and is

entirely inconsistent with our previous holdings. See Foster,

554 F.3d at 814. As we discuss supra, we have held that

deprivation of exercise may be “reasonable” in certain situa-

tions, such as during a “state of emergency” in a prison, or

when a prisoner poses such a threat to inmates or guards that

his confinement without exercise is the only way to maintain

the security of the facility. Under the circumstances present

here, however, in which the punishment of deprivation of

exercise appears clearly not to have been necessary to main-

tain order in the prison, it is difficult to conceive of how a

deprivation of a “basic human necessity,” LeMaire, 12 F.3d

at 1457, may be deemed reasonable. Thomas testified that

during the 13 month 25 day period of confinement without

out-of-cell exercise he did not sign and had no intention of

ever signing the pledge form. Like the inmate in Foster,

Thomas refused repeatedly to abide by a prison policy, and

10308 THOMAS v. PONDER

complained to prison officials about the deprivation inflicted

upon him by prison officials in response to his refusal to

adhere to the policy.11 Foster, 554 F.3d at 812. In common

with Foster, Thomas could have chosen to behave differently,

but he did not, and in punishing him for that choice the prison

officials placed him at risk of substantial physical and mental

harm. Id. at 812-14. We therefore hold that, as in Foster,

Thomas has, at the very least, raised a genuine issue of mate-

rial fact as to whether the prison officials’ actions were rea-

sonable.

[8] In sum, Thomas has, at the very least, raised a genuine

issue of material fact as to whether the prison officials acted

reasonably in denying him of all out-of-cell exercise for 13

months and 25 days. The record shows that Thomas had

already promised to “program non-violently” in the separate

interview forms that he signed. Neither Thomas’s own limited

disciplinary record, nor the occasional documented threats or

acts of other prisoners appears to have rendered it reasonable

to deprive him of all out-of-cell exercise opportunities during

the lengthy period involved. The record also reflects that the

prison officials failed to consider other ways of providing

Thomas with sufficient exercise that would not have impli-

cated any of their purported security concerns. Finally, the

prison authorities’ contention that Thomas could have signed

the pledge form at any time would not appear to provide a jus-

tification for their actions over so long a period. We therefore

hold that the district court erred in ruling that there was insuf-

11

The prison officials do not argue explicitly that Thomas’s refusal to

sign the pledge form demonstrated a dangerous resistance to authority or

a failure to comply with or abide by the rules that justified his prolonged

confinement without exercise. Even if the prison officials had made such

an argument, however, and even if such an argument had merit, it would

be highly unlikely to outweigh the prison officials’ responsibility to safe-

guard an inmate’s health. It is thus hard to envisage any circumstances in

which the refusal to sign a form would justify jeopardizing an inmate’s

health by depriving him of all opportunity to exercise for almost 14

months.

THOMAS v. PONDER 10309

ficient evidence to raise a genuine issue of material fact as to

whether the prison officials acted reasonably. Accordingly,

we reverse the district court’s ruling granting summary judg-

ment to the prison officials.

We should add that we have difficulty in conceiving how

the prison officials might be able to justify the deprivation of

so critical a human necessity as exercise for a period of

almost 14 months on the basis of “reasonableness,” as they

would have been willing to allow Thomas to enjoy out-of-cell

exercise throughout almost all of this period if he had signed

the pledge form. Nevertheless, because we are asked to decide

only whether the district court’s ruling on the prison officials’

motion for summary judgment was erroneous and because

Thomas has not asked us to grant him relief in the form of

summary judgment, we are reluctant to do more than reverse

and remand for further proceedings.

C. We decline to reach the prison officials’ argument

that they are entitled to qualified immunity

The district court did “not reach defendant’s argument that

they are entitled to qualified immunity,” because it found that

Thomas had failed to make any actionable constitutional

claims. The prison officials suggest that, irrespective of our

ruling on Thomas’s constitutional claims, we should affirm

the district court’s grant of summary judgment to the prison

officials on the ground of qualified immunity.

In order to establish qualified immunity, a government offi-

cial must show that his “conduct has not violated any ‘clearly

established’ constitutional right of which a reasonable person

would have known.” Foster, 554 F.3d at 812 (internal quota-

tion marks omitted). Although the prison officials have raised

this issue on appeal, they have not attempted to show how or

why each of the named prison officials is entitled to qualified

immunity, nor did they do so before the district court. Cer-

tainly none has shown any reason for such relief in light of

10310 THOMAS v. PONDER

our reversal and remand on the question of a constitutional

violation.

[9] In light of the above, we decline to consider the ques-

tion of qualified immunity for the first time on appeal, and

remand the case to the district court to consider that issue in

the first instance, at such time in the further proceedings as it

may be appropriate to do so.

REVERSED AND REMANDED FOR FURTHER

PROCEEDINGS IN LIGHT OF THIS OPINION.

FRIEDMAN, Circuit Judge, dissenting:

In my view, the appropriate and dispositive inquiry in this

case is whether the prison officials abused their discretion or

otherwise acted unreasonably in requiring the prison inmates,

as a condition of their release from various restrictions

imposed following a lockdown (including the ability to leave

their cells for outdoor exercise, the restriction here at issue),

to sign a pledge that they would not engage in violent conduct

if they were so released. Since I conclude that the prison offi-

cials did not abuse their discretion, I would affirm the district

court’s grant of summary judgment dismissing the inmate’s

damage suit under 42 U.S.C. § 1983, alleging that denying

him outdoor exercise for almost fourteen months because of

his refusal to sign the pledge, subjected him to cruel and

unusual punishment in violation of the Eighth Amendment.

The appellant Thomas was housed in a maximum security

unit of a California state prison. The prison was locked down

after another inmate in the unit stabbed and seriously

wounded two correctional officers. The lockdown, during

which prisoners were confined to their cells and could leave

them only in emergencies or for extraordinary circumstances,

was in effect for approximately two months.

THOMAS v. PONDER 10311

When the lockdown ended, the prison officials introduced

a “modified” program containing many of the same restric-

tions that had existed during the lockdown, including the pro-

hibition on leaving the cell for outdoor exercise. To leave the

“modified” program and to return to a “normal” one, inmates

were required to be interviewed and to sign a pledge. In his

interviews, Thomas answered “yes” to the following ques-

tions on an interview form: “Programming on a level IV gen-

eral population yard requires participation without violence.

Are you willing to commit to this type of program? If not,

give details?” “If the facility were returned to normal pro-

gram, could you program without violence on a level IV gen-

eral population yard with inmates from all races/ethnics [sic]

or past or present gang affiliations?” He answered “no” to the

question “Do you have any safety concerns?”

The pledge form that Thomas refused to sign for a substan-

tial period, although he was asked to do so on several occa-

sions and apparently informed that if he did so he could have

outdoor exercise, contained the following statement:

By signing this document, I am advising staff that I

want to participate in the program review process

being implemented at this time. I am also stipulating

that I want to “do my own time” and will program

by not participating in gang violence.

Prison officials, headed by the warden, are responsible for

maintaining order and imposing discipline in the prison. They

must protect the inmates and prison employees, including the

guards and correctional officers, against violence and injury.

In carrying out these responsibilities, they necessarily must

have broad discretion in deciding how to run the prison and

to determine what steps are appropriate and necessary to deal

with particular situations and problems as they arise. Since the

facility where Thomas was housed was a maximum security

unit, one must assume that its inhabitants included many vio-

lent and dangerous prisoners.

10312 THOMAS v. PONDER

Considering all the circumstances, I cannot say that the

prison officials abused their discretion or otherwise acted

unreasonably in requiring the inmates of that maximum secur-

ity unit to sign the pledge form containing the commitment

not to engage in violence, as a condition of their returning to

the regular prison program, which included outdoor exercise.