Noble v. Adams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE JOSEPH NOBLE, IV,  No. 09-17251

Plaintiff-Appellee,

v.  D.C. No.

1:03-cv-05407-SMS

D. ADAMS; D. CUEVAS,

OPINION

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Submitted February 15, 2011*

San Francisco, California

Filed March 17, 2011

Before: John T. Noonan, Diarmuid F. O’Scannlain, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Trott

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

3643

NOBLE v. CUEVAS 3645

COUNSEL

Constance L. Picciano, Deputy Attorney General, Sacra-

mento, California, for the appellants.

Steve Joseph Noble IV, Pro Se, Represa, California, for the

appellee.

3646 NOBLE v. CUEVAS

OPINION

TROTT, Circuit Judge:

Adams and Cuevas are prison officials responsible for a

post-riot lockdown of Corcoran State Prison in California.

They appeal the district court’s denial of their assertion of

qualified immunity against inmate Noble’s claim that the

lockdown resulted in a denial of his Eighth Amendment right

to outdoor exercise. We have jurisdiction over this timely

appeal, and we reverse and remand with instructions to enter

judgment in favor of the officials.

BACKGROUND

During 2002, Noble was a prisoner in the Substance Abuse

Treatment Center (“SATF”) at Corcoran State Prison. He is

an African-American who was also a “former” street gang

member from Los Angeles — a “Crip.” Noble was classified

as a “Level IV” inmate, the highest level of custody, and he

was housed in Facility C.

Because of a particularly violent armed riot on Facility C’s

exercise yard by African-American prisoners against staff on

January 09, 2002, described by the Facility Captain of SATF

as the most violent and savage attack he had observed in 20

years, Warden D.G. Adams of the SATF formally declared a

state of emergency (approved by the Director of Corrections)

and imposed a “lockdown” on the entire prison.1 The riot in

1

Cal. Code Regs. 15, § 300 defines a lockdown as follows:

Lockdown means that a portion of the facility is affected by sus-

pension of required programs or services, and inmates are not

released except as determined by the facility administration on an

individual, case-by-case basis. As determined by the facility

administration, under such circumstances only critical inmate

workers in the affected housing units/sub-facilities will be per-

mitted to attend to work assignments under escort, and all but

essential functions are suspended in those affected housing units

or sub-facilities, e.g., yard, canteen draws, religious services, and

visiting.

NOBLE v. CUEVAS 3647

the exercise yard, which was started by a Crips gang member,

included an attempt by prisoners to kill one of the correction

officers and resulted in injuries to 21 staff. Nine staff mem-

bers were taken to the hospital for evaluation and treatment.

The mass assault on staff was an unprecedented event. It was

unusual because of the normally antagonistic gangs acting

together. The Facility Captain said that this attack on staff

was a “life changing event.” According to Noble, “Numerous

inmate manufactured weapons were found [after the January,

2002] riot on the Fac. ‘C’ exercise yard.” Noble concedes that

Crips directly participated in the attack.

This violent riot occurred only one day after a previous

prison-wide lockdown had been lifted, a lockdown caused by

intermittent prisoner riots during 2001. Those riots, which

involved Hispanic groups, created tension between prison

staff and African-American inmates because the latter felt

they were being arbitrarily punished for the acts of other

groups. As recognized by the district court, “African-

American inmates at SATF were dissatisfied with the way

they were treated and became openly defiant of authority by

being deliberately slow to obey orders or submit to searches.”

The lockdown resulted in the curtailment of outdoor exer-

cise and all regular privileges for all prisoners, including

Noble. Because the inmates had directed their attack against

staff, increased tension between inmates and staff was a seri-

ous concern to those responsible for the safety and security of

the prison.

Three months later, prison officials gradually and in mea-

sured stages began to resume normalcy. The first step in the

process was instituted on April 11, 2002: African-American

and white inmates were permitted to have contact visitation

with outside visitors. According to prison officials, after it

was demonstrated to their satisfaction that the controlled visit-

ing program was successful, a modified day room access pro-

gram was instituted on June 14, 2002. On June 25, non-gang

3648 NOBLE v. CUEVAS

affiliated African-American inmates were included in the day

room access program.

On June 27, defendant Cuevas met with selected African-

American inmates to discuss modifications to the lockdown.

The purpose of this meeting was to notify the inmates in

Facility C about plans gradually to restore privileges and nor-

malcy. As reflected in a synopsis of the meeting, the selected

inmates were told that if the opening of the day room “runs

smoothly then dayroom will be open for the remaining black

population. If dayroom program is disruptive program [sic]

will stop until further notice.” In response to an inmate

inquiry as to why the day room was not open to all black

inmates, Captain Cuevas’s answer was, “Most of the incidents

on Facility C have involved black affiliated gang members.

Start programming with the ones who are not involved, the

fairest way. The dayroom will open with nonaffiliated black

gang members. Once that shows promise, dayroom will be

open for the affiliated black gang members.” He added that

opening up the day room for African-Americans not affiliated

with a gang was a “stepping-stone,” and that the plan of

action in place depended upon “behavior,” which, if positive,

would occasion more privileges. At the conclusion of the

meeting, one of the inmates advised Captain Cuevas that he

was “worried that this is going to fall through.”

On July 8, 2002, all African-American inmates — includ-

ing gang affiliates were allowed access to the day room pro-

gram. Finally, on August 1, 2002, all inmates in Facility C

were given access to a modified program for outdoor exercise.

The next day, as Noble concedes, another riot occurred, this

time involving Hispanic prisoners. As a result, full exercise

privileges were not restored until April 1, 2003. These facts

are beyond dispute.

Captain Comfort, the Facility C official responsible for

determining when the lockdown could be lifted, offered this

unchallenged explanation of the rigor of this task:

NOBLE v. CUEVAS 3649

The primary goal of any lockdown, including the

one imposed on January 9, 2002, is to determine

when it is safe to release the inmates to normal pro-

gramming. This is not a determination that is easily

made, and the consequences for making a mistake

can be the resumption of violence, with injuries to

inmates and staff. . . . The investigation of a major

incident, including this one, is a long process, com-

plicated by many factors. Initially inmates will not

talk to staff, because of the anger, and hostility gen-

erated by the incident itself.

Captain Comfort also explained that the general security

characteristics of inmates housed in Facility C factored into

the officials’ decisionmaking process. “Level IV is the highest

[security] level that can be assigned to a general population

inmate. . . . The majority of [Facility C inmates] are there

because they have demonstrated through their institutional

behavior that they need higher levels of custodial supervision

than other Level IV inmates.”

THE LAWSUIT

Noble, who has not been shown to have participated in the

January, 2002 riot, sued pursuant to 28 U.S.C. § 1983 inter

alia for alleged violations of his Eighth Amendment right to

outdoor exercise. See Lopez v. Smith, 203 F.3d 1122, 1132-33

(9th Cir. 2000); Spain v. Procunier, 600 F.2d 189, 199 (9th

Cir. 1979). The focus of his claim covers the period beginning

with the January 9, 2002 riot, and ending April 1, 2003. This

appeal comes from the district court’s denial of the prison

officials’ motion (1) for summary judgment on the merits, and

(2) for qualified immunity asserted on the ground that a pris-

oner’s right to outdoor exercise during a lockdown imposed

in the aftermath of a prison riot was not “clearly established”

in 2002.

[1] Here, the appellant-officials argue that the law concern-

ing the provision of outdoor exercise under the particular cir-

3650 NOBLE v. CUEVAS

cumstances of this case was not so clearly established that

reasonable prison officials acting in their place would have

been on notice that their actions violated the commands of the

Eighth Amendment. They point out that there is no control-

ling case that specifies how long a lockdown can be continued

before it trespasses upon the right in question, or what the

monitoring process must be in order for the lockdown to

remain in place. The officials rely in the main on Norwood v.

Vance, 591 F.3d 1062 (9th Cir. 2010), which held that a pris-

oner’s right to outdoor exercise is neither absolute nor inde-

feasible in the light of prison violence. Id. at 1068-69.

Noble on his part defends the district court’s decision and

asks us to dismiss the appeal as untimely, a motion which a

Ninth Circuit motions panel denied without prejudice.2 On the

merits, Noble relies primarily on Hayward v. Procunier, 629

F.2d 599 (9th Cir. 1980), and Hoptowit v. Ray, 682 F.2d 1237

(9th Cir. 1982).

QUALIFIED IMMUNITY

The district court denied the officials’ motions because it

“could not find [from the officials’ submissions] that a legiti-

mate penological purpose existed” for the lockdown beyond

January 30, 2002, when the “investigation of the riot, which

was the basis of the lockdown, appears to have been com-

pleted . . . .”

The court said in its Order Denying Reconsideration that it

simply couldn’t figure out from the record “whether there

were other factors which necessitated the continued lock-

down, or whether the defendants considered allowing inmates

access to the exercise yard.” The court also said that “circum-

2

We deny this “motion to dismiss.” The district court’s denial of the

motion for qualified immunity was not a judgment controlled by F.R.A.P.

4(a)(4)(A)(vi). Here, the defendants’ notice of appeal was properly filed

within 30 days of the denial of their motion for reconsideration.

NOBLE v. CUEVAS 3651

stances may justify long-term outdoor exercise deprivation if

the defendant provides evidence of the reason for the depriva-

tion,” which the court found lacking in this record.

In an earlier order regarding summary judgment, the court

spelled out its specific concerns as follows:

In this case, the court finds that the deprivation of

exercise for the seven month period is sufficiently

serious to meet the objective component of an Eighth

Amendment violation. The issue remaining is

whether Defendants were deliberately indifferent to

Plaintiff’s needs during this time period. This is

especially true given the limited information Defen-

dants have provided regarding whether the restric-

tion in exercise bore an attempt to ease the

emergency, and whether the restriction had a peno-

logical purpose.

In its previous order, the court noted that Defen-

dants had not provided “specific facts concerning

what was done in the investigation from January 9,

2002 to July 31, 2002, to demonstrate that the

restriction to the exercise yard had a penological pur-

pose that would warrant a deprivation of exercise for

nearly seven months.” For example, it was not clear

on what day the investigation was concluded, or why

this particular investigation took several months to

complete. Furthermore, there was no explanation of

why privileges were restored in the order that they

were given, or why officials felt that allowing pris-

oners access to the exercise yard would pose a dan-

ger to the safety of the institution for the seven

month period from January 9, 2002 to August 1,

2002.

Counterintuitively, the district court extended qualified

immunity to these officials for the period running from

3652 NOBLE v. CUEVAS

August 1, 2002 through April 1, 2003 “after . . . the decision

was made [by the officials on August 1] to open the exercise

yard to all inmates on a modified program that entailed releas-

ing one building at a time to the [exercise] yard on a rotational

basis.” The reason given by the district court for this decision

was the occurrence of new disruptive prisoner incidents, one

involving African-American inmates and a battery against a

police officer.

We conclude pursuant to what is now known as prong 2 of

the Saucier v. Katz, 533 U.S.194 (2001) test, see Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 821 (2009), that it

was not clearly established in 2002 — nor is it established yet

— precisely how, according to the Constitution, or when a

prison facility housing problem inmates must return to normal

operations, including outside exercise, during and after a state

of emergency called in response to a major riot, here one in

which inmates attempted to murder staff.

[2] According to Norwood, we defer to prison officials’

judgment so long as that judgment does not manifest either

deliberate indifference or an intent to inflict harm. California

Code of Regulations title 15, § 3383 (“Code”) says in relevant

part that

[d]uring a state of emergency, the cause and effect

shall be constantly reviewed and evaluated by the

institution head. . . . The facility’s affected areas,

programs, and operations shall be returned to normal

as soon as the institutional head . . . determines that

it is safe to do so. (Emphasis added).

On this precise issue, prison officials are entitled to “ ‘wide-

ranging deference.’ ” Norwood, 591 F.3d at 1069 (quoting

Bell v. Wolfish, 441 U.S. 520, 547 (1979)).

Norwood, who was not a gang member, was imprisoned at

the California State Prison at Sacramento. Because of prison

NOBLE v. CUEVAS 3653

violence, which included violent attacks by Crips on staff, he

endured “four separate extended lockdowns over the course of

two years.” Norwood, 591 F.3d at 1065. In total, he was

denied exercise during this period for over twelve months in

increments of three, three, four and a half, and two months.

A jury concluded that these denials violated Norwood’s

Eighth Amendment right to outdoor exercise, but awarded

him only $11 in nominal damages and $39,000 in punitive

damages. Id. at 1066. Not only did we reverse the judgment

in Norwood’s favor because of erroneous jury instructions,

but we declined to remand for a new trial. Instead, we con-

cluded on the record that the officials were entitled to quali-

fied immunity and remanded instead for entry of judgment on

their behalf. In so doing we said, “We decline Norwood’s

invitation to micro-manage officials whose expertise in prison

administration far exceeds our own . . . .” Id. at 1070.

[3] We reversed the district court’s merits judgment in

favor of Norwood because of the court’s refusal to give to the

jury the following instruction:

In considering whether defendants were deliberately

indifferent to the need for outdoor exercise, the jury

should consider that defendants had a competing

obligation under the Eighth Amendment to ensure

the safety of prisoners, including protecting prison-

ers from each other. In considering these factors, you

should give deference to prison officials in the adop-

tion and execution of policies and practices that in

their judgment are needed to preserve discipline and

to maintain internal security in a prison.

Id. at 1066 (emphasis added). We also said in Norwood the

following:

[P]rison officials have a duty to keep inmates safe,

and in particular to protect them from each other.

Officials must balance this imperative against other

3654 NOBLE v. CUEVAS

obligations that our laws impose, such as providing

outdoor exercise. 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. We’ve

explained that “prison officials have a right and a

duty to take the necessary steps to reestablish order

in a prison when such order is lost. This is for the

benefit of the prisoners as much as for the benefit of

the prison officials.”

...

Such decisions are not to be judged with the bene-

fit of hindsight, in any event. It matters not whether

the measures taken actually worked but whether

prison officials reasonably believed they would be

effective in stopping the violence. At most, prison

officials here may be faulted for erring on the side of

caution by maintaining lockdowns for longer than

necessary. But, when it comes to matters of life and

death, erring on the side of caution is a virtue. Cer-

tainly, no officer could reasonably have anticipated

that such prudence would be found to violate the

Eighth Amendment.

[W]hen balancing the obligation to provide for

inmate and staff safety against the duty to accord

inmates the rights and privileges to which they are

entitled, prison officials are afforded “wide-ranging

deference.” When a “lockdown was in response to a

genuine emergency,” and “restrictions were eased as

the prison administration determined that the emer-

gency permitted,” we may not lightly second-guess

officials’ expert judgments about when exercise and

other programs could safely be restored. “These

decisions are delicate ones, and those charged with

them must be given reasonable leeway.”

NOBLE v. CUEVAS 3655

...

Attacks on staff are, by their nature, more serious

challenges to prison authority than attacks on other

inmates.

Id. at 1066-70 (emphasis added) (internal citations omitted).

[4] Here, following this attack in the exercise yard against

prison staff, there is no doubt that the declaration of an emer-

gency and a lockdown for multiple security reasons were jus-

tified. A lockdown by definition normally precludes the type

of exercise Noble says he was denied. Regular operations

cease during lockdown and are restored gradually according

to prison officials’ judgment as to the safety of the conditions

on the ground. The record contains the Declaration of V.

Adams which contains 14 separate serial “Plans of Operation”

— entitled Program Status Reports — relating to managing

this emergency dated from January 8, 2002, through August

8, 2002, all signed by the Facility Captains Comfort and

Cuevas and Warden D.G. Adams. The content of each Report

and explanatory “Remarks” at the bottom of each signed plan

clearly illustrate exactly what is contemplated by § 3383 of

the Code, i.e., that the lockdown was under constant review

by the responsible official to determine when and how it

could safely be lifted. Similar Reports extending from August

8, 2002 through April 2003 indicate attempted murders, a

murder, assaults, batteries with weapons, and the discovery of

numerous prisoner weapons within the Facility.

[5] The district court erred in viewing the end on January

30, 2002 of the formal investigation of the immediate precipi-

tating causes of the riot, which in any event was not conclu-

sive, as a point from which the officials must demonstrate

additional “specific facts” or new disruptive events supporting

their judgment that the emergency had not dissipated and that

the lockdown must continue. The absence of any additional

disruptive events was a good sign, but hardly one that sig-

3656 NOBLE v. CUEVAS

naled the evaporation of the tension that sparked this riot and

clearly continued in its aftermath. The district court’s

approach manifestly trespassed against our warnings not to

micro-manage prisons. Moreover, the absence of any new

attacks demonstrates, if anything, appropriate prudence and

the success of the lockdown, not that it might lack a “penolog-

ical purpose.”

Hayward and Hoptowit do not support Noble’s arguments.

In Hayward, we determined that because the lockdown was

in response to a genuine emergency, restrictions on exercise

were appropriate. We said, “Other restrictions were eased as

the prison administration determined that the emergency per-

mitted. These decisions are delicate ones, and those charged

with them must be given reasonable leeway.” 629 F.2d at 603.

Hoptowit, which dealt with a prison lockdown imposed to

restore order in light of a high level of tension and violence

following the killings of an inmate and a guard, is also of no

help to Noble’s cause. We said as a general proposition that

“when a genuine emergency exists, prison officials may be

more restrictive than they otherwise may be, and certain ser-

vices may be suspended temporarily.” 682 F.2d at 1259. We

added that “[i]n determining the existence of such needs, we

must give reasonable leeway to prison officials.” Id. (citing

Hayward, 629 F.2d at 603).

[6] Parenthetically, we are unable to detect any actionable

Eighth Amendment subjective intent in this case. The record

refutes the contentions that the lockdown was in excess of

what was required to restore order, was unrelated to the offi-

cials’ security and safety responsibilities, and was kept in

effect for a longer period than necessary. Hoptowit, 682 F.2d

at 1258. This case shares none of the conditions or circum-

stances we discussed in Hayward, such as a prison adminis-

tration “either unable or unwilling to deal with extreme

conditions which the court had previously found to be cruel

and unusual punishment.” Hayward, 629 F.2d at 603 (discuss-

NOBLE v. CUEVAS 3657

ing Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977),

aff’d, 616 F.2d 598 (1st Cir. 1980)). If anything, the record

demonstrates that the officials were continuously, prudently,

and successfully looking out for the safety, security, and wel-

fare of all involved, staff and prisoners alike. This scenario is

precisely what the doctrine of qualified immunity is designed

to cover.

CONCLUSION

[7] In summary, in 2002 it would not have been clear to a

reasonable officer that his or her conduct vis à vis the declara-

tion of an emergency, the lockdown, or the curtailment of use

of the exercise yard was unlawful in the situation he or she

confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001).

REVERSED and REMANDED with instructions to enter

judgment on behalf of the Defendants.