Norwood v. Vance

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY LYNN NORWOOD, 

Plaintiff-Appellee,

v.

STEVE J. VANCE; MIKE KNOWLES, No. 07-17322

Warden, CSP-Sacramento; THOMAS

P. GOUGHNOUR; MICHAEL F.  D.C. No.

CV-03-02554-

MARTEL; DAVID I. WILLEY; CHERYL GEB/GGH

PLILER, Former Warden at CSP;

JAMES P. WALKER, Associate

Warden,

Defendants-Appellants.



GREGORY LYNN NORWOOD, 

Plaintiff-Appellee,

v.

STEVE J. VANCE; MIKE KNOWLES, No. 08-15778

Warden, CSP-Sacramento; THOMAS D.C. No.

P. GOUGHNOUR; JAMES P. WALKER, 2:03-CV-02554-

Associate Warden; DAVID I.  GEB-GGH

WILLEY; CHERYL PLILER, Former ORDER AND

Warden at CSP, AMENDED

Defendants-Appellants, OPINION

and

MICHAEL F. MARTEL,

Defendant.



431

432 NORWOOD v. VANCE

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

October 29, 2008—Sacramento, California

Filed July 9, 2009

Amended January 7, 2010

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and

Consuelo M. Callahan, Circuit Judges.

Opinion by Chief Judge Kozinski;

Dissent by Judge Thomas

NORWOOD v. VANCE 435

COUNSEL

Carter White, Supervising Attorney, and Erin Haney, Certi-

fied Law Student, U.C. Davis School of Law, King Hall Civil

Rights Clinic, Davis, California, for the plaintiff-appellee.

Christopher J. Becker, Esquire, Jim Sobolewski, James Flynn,

Deputy Attorneys General, Office of the California Attorney

General, Sacramento, California, for the defendants-

appellants.

ORDER

The opinion is amended as follows:

Page 629, column 1,

line 26 Add a footnote after <Defendants

appeal.> stating: <Only an Eighth

Amendment outdoor exercise

claim is before us on this appeal.

We therefore express no view as to

the race-based aspect of the lock-

downs or any potential Equal Pro-

tection claim.>

Page 632, column 2,

lines 36-37 Replace <constitution> with

<Eighth Amendment>

Page 633, column 1,

line 35 Replace <lawful> with <consistent

with the Eighth Amendment>

436 NORWOOD v. VANCE

Appellee’s Petition for Panel Rehearing and Rehearing en

banc is otherwise denied. See Fed. R. App. P. 35, 40. Judge

Thomas would grant the petition.

No further petitions for rehearing or rehearing en banc may

be filed.

OPINION

KOZINSKI, Chief Judge:

We consider when prison officials may be held liable for

depriving inmates of outdoor exercise.

Facts

Gregory Norwood was incarcerated at CSP-Sacramento, a

maximum security prison, during a particularly violent period

in the prison’s history. Norwood brought this section 1983

action alleging that prison officials violated the Eighth

Amendment when they denied him outdoor exercise during

four separate extended lockdowns over the course of two

years.

The prison initiated these lockdowns after serious inmate

assaults on staff. During the lockdowns, inmates were con-

fined to their cells and normal programs were suspended

while officials investigated the violence. Based on what they

learned, officials gradually eased restrictions on specific

gangs, ethnic and racial groups, restoring outdoor exercise

sooner for inmates who they believed would pose less risk of

further violence. Norwood was not a gang member, but gang

members often pressured unaffiliated inmates of the same

race or ethnicity to assist them. Prison officials therefore

believed that limiting the scope of lockdowns to gang mem-

bers would be inadequate to ensure safety.

NORWOOD v. VANCE 437

During this two-year period, there were also numerous

inmate-on-inmate attacks. Officials did not always initiate

total lockdowns after such attacks. According to one defen-

dant, the prison’s response to inmate-on-inmate violence

“[d]epends on the circumstances of the assault. . . . [I]f it’s

fisticuffs, and it’s a one-on-one situation, no, we wouldn’t

lock down for that. If it’s a slashing assault, or a stomping, or

multiple inmates involved in a melee, then yes, we would lock

down . . . .”

Officials initiated the first lockdown in early 2002 after

eleven Hispanic inmates attacked four correctional officers,

nearly killing one of them. Prison officials didn’t know if the

attack was planned or isolated. They also didn’t know, and

were never able to ascertain, who provided the weapons. The

weeks following the attack brought a series of inmate-on-

inmate attacks, including a homicide, as well as another

attempted murder of an officer. Officials eventually decided

it was safe to begin restoring normal programs, beginning

with “critical workers.” Norwood was in the second group of

workers to resume outdoor exercise. His exercise had been

suspended for about three months.

In early May, a black inmate stabbed an officer in a dining

hall. Officials initiated a second lockdown but began restoring

normal programs by the end of the month. By mid-July, pris-

oners other than blacks had resumed outdoor exercise. Even

so, attacks on officers occurred during this lockdown, includ-

ing a battery and an attempted battery. Norwood, who is

black, was denied exercise for three months.

In the waning days of 2002, black inmates attempted to

murder a correctional officer, and a number of black Crips

attacked staff members. Officials initiated a third lockdown,

during the course of which inmates committed four batteries

or attempted batteries of officers and five batteries or

attempted murders of inmates. During this lockdown, Nor-

438 NORWOOD v. VANCE

wood’s outdoor exercise was suspended for four and a half

months.

In September of 2003, a black Crip attempted to murder an

officer. Because of the seriousness of the incident and the fact

that it was the fourth major assault on staff in a 19-month

period, officers locked down all inmates and declared a state

of emergency. Officers eventually determined that the

attacker had acted alone and began restoring outdoor exercise.

But the violence continued. Certain white inmates, and those

celled with them, were locked down because of an attempted

murder of an inmate in November, and certain Crips and their

cellmates remained on lockdown from earlier violence. Nor-

wood was denied outdoor exercise for two months.

A jury found that defendants violated Norwood’s Eighth

Amendment right to outdoor exercise but concluded that Nor-

wood suffered no harm and thus awarded no compensatory

damages. The jury did award $11 in nominal damages and

$39,000 in punitive damages. The district court awarded

$23,875.55 in attorney’s fees. Defendants appeal.1

Analysis

I

Defendants claim the district court erred by refusing to give

the following jury 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-

1

Only an Eighth Amendment outdoor exercise claim is before us on this

appeal. We therefore express no view as to the race-based aspect of the

lockdowns or any potential Equal Protection claim.

NORWOOD v. VANCE 439

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.

The district court initially agreed to the language but, after

plaintiff objected, declined to include it on the ground that

“deference” was “undefined.” Because defendants challenge

the resulting jury instruction as an incomplete, and therefore

incorrect, statement of the law our review is de novo. Clem

v. Lomeli, No. 07-16764, slip op. at 6572 (9th Cir. June 2,

2009); Dang v. Cross, 422 F.3d 800, 804-06 (9th Cir. 2005).

Plaintiff argues that defendants failed to preserve their

objection below. See Fed. R. Civ. P. 51(d)(2). But the record

shows that defendants contested the district court’s decision

not to include the proposed language and made the grounds

for their position clear, citing relevant authority. An “objec-

tion need not be formal,” and defendants’ proffered language

was “sufficiently specific to bring into focus the precise

nature of the alleged error.” Inv. Serv. Co. v. Allied Equities

Corp., 519 F.2d 508, 510 (9th Cir. 1975). Nor did the district

judge’s vague statement that defendants “may” have an

opportunity to change his mind counter the overall impression

that raising the issue again via formal objection would be both

“unavailing” and a “pointless formality.” Glover v. Bic Corp.,

6 F.3d 1318, 1326 (9th Cir. 1993).

[1] It is well established that judges and juries must defer

to prison officials’ expert judgments. In Bell v. Wolfish, the

Supreme Court explained:

[T]he problems that arise in the day-to-day operation

of a corrections facility are not susceptible of easy

solutions. Prison administrators therefore should be

accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judg-

440 NORWOOD v. VANCE

ment are needed to preserve internal order and disci-

pline and maintain institutional security.

441 U.S. 520, 547 (1979). Six years later, the Court spelled

out that deference requires “that neither judge nor jury freely

substitute their judgment for that of officials who have made

a considered choice.” Whitley v. Albers, 475 U.S. 312, 322

(1985) (emphasis added). The Court confirmed that Bell

remains good law in Farmer v. Brennan, its seminal opinion

on challenges to conditions of confinement, which twice cited

Bell with approval. 511 U.S. 825, 845, 847 (1994).

The district court declined to give the proposed instruction

because the meaning of deference would not be “clear to a lay

person.” But “deference” is not Urdu or Klingon; it is a com-

mon English word. See, e.g., Michael Crichton, Airframe 78

(1996) (“[S]he certainly knew where all the bodies were bur-

ied. Within the company, she was treated with a deference

bordering on fear.”). It may be true that deference has varied

meanings, Dissent at 454 n.4, but so do most English words.

If the district judge believed the term needed further context

or definition, he could have provided it.

[2] Perfect or not, the defendants’ proposed instruction

brought the issue of deference to the district court’s attention.

“[T]he fact that the proposed instruction was misleading does

not alone permit the district judge to summarily refuse to give

any instruction on the topic.” Merrick v. Paul Revere Life Ins.

Co., 500 F.3d 1007, 1017 (9th Cir. 2007). The district court

omitted the instruction altogether, rather than modifying it to

correct the perceived deficiency. The remaining instructions

failed to alert the jury that the deliberate indifference standard

“incorporates due regard for prison officials’ ‘unenviable task

of keeping dangerous men in safe custody under humane con-

ditions.’ ” Farmer, 511 U.S. at 845 (quoting Spain v. Procu-

nier, 600 F.2d 189, 193 (9th Cir. 1979)). The dissent

apparently believes that, because Farmer “incorporates” Bell

deference, the use of language drawn from Farmer was ade-

NORWOOD v. VANCE 441

quate to instruct the jury. Dissent at 452. But juries are not

clairvoyant and will not know to defer unless they are told to

do so.

[3] We have long recognized that additional instruction

regarding deference is required in cases applying Whitley to

allegedly excessive force by prison officials. See Ninth Cir-

cuit Manual of Model Jury Instructions § 9.24 (2007 ed.). The

dissent accuses us of improperly extending the Whitley regime

to a case involving conditions of confinement. Dissent at 451.

But defendants’ proposed instruction was not drawn from

Whitley; it was drawn from Bell—itself a conditions of con-

finement case. Bell, 441 U.S. at 534, 547. Prison officials are

entitled to deference whether a prisoner challenges excessive

force or conditions of confinement. See Whitley, 475 U.S. at

322; Farmer, 511 U.S. at 845. Indeed, conditions of confine-

ment and use of force are often flip sides of the same coin: A

more restrictive confinement may diminish the need for force

and vice versa.

[4] As the government recognized at trial, the court’s

instruction correctly stated Farmer’s deliberate indifference

standard. But the court’s failure to give additional guidance

on deference rendered the instruction incomplete and mislead-

ing. And the error was also prejudicial. If properly instructed,

the jurors might well have reached a different conclusion.

Norwood has not met his burden of showing the verdict

would “more probably than not” have been the same absent

the error. Clem, slip op. at 6575. We therefore vacate the

jury’s verdict and damages awards.

II

We would normally remand for a new trial, but as defen-

dants are entitled to qualified immunity that is not necessary

here. Our dissenting colleague may be right that defendants

waived the immunity claim by failing to raise it to the district

court during or immediately after trial. On appeal, however,

442 NORWOOD v. VANCE

Norwood failed to argue waiver; rather, he addressed quali-

fied immunity on the merits while arguing waiver of the two

other principal issues in the case. In Tortu v. Las Vegas Met-

ropolitan Police Department, 556 F.3d 1075 (9th Cir. 2009),

cited by the dissent, see Dissent at 456, plaintiff explicitly

argued that defendants had forfeited qualified immunity by

failing to make the proper motion below. Tortu, 556 F.3d at

1081.

[5] It is “well-established” that a party can “ ‘waive waiver’

implicitly by failing to assert it.” Tokatly v. Ashcroft, 371

F.3d 613, 618 (9th Cir. 2004); United States v. Garcia-Lopez,

309 F.3d 1121, 1123 (9th Cir. 2002); see also Wilson v.

Kelkhoff, 86 F.3d 1438, 1445 (7th Cir. 1996) (plaintiff waived

defendant’s waiver of absolute immunity defense). Norwood

waived the defendants’ waiver by addressing the claim on the

merits without also making a waiver argument. Cf. Chicano

Educ. & Manpower Servs. v. U.S. Dep’t of Labor, 909 F.2d

1320, 1327-28 & n.5 (9th Cir. 1990) (“Yes, we are indeed

holding that the Department has waived its right to argue that

CEMS waived its right to ask for a waiver . . . .”). The dissent

would have us raise the issue of waiver sua sponte and sug-

gests that we have “discretion” not to reach defendants’ quali-

fied immunity claim. Dissent at 457-58. But “[t]his court will

not address waiver if not raised by the opposing party.”

United States v. Doe, 53 F.3d 1081, 1802-83 (9th Cir. 1995)

(quoting United States v. Schlesinger, 49 F.3d 483, 485 (9th

Cir. 1995)). Even if we had such discretion, we believe the

more prudent course is to resolve the case on the basis of the

issues actually briefed and argued by the parties.

[6] When a party waives waiver, we proceed directly to the

merits. See, e.g., Tokatly, 371 F.3d at 618-24; Doe, 53 F.3d

at 1083-84; Wilson, 86 F.3d at 1445-46. We do not, as the dis-

sent suggests, Dissent at 458-59, engage in plain error review.

Defendants are entitled to qualified immunity so long as a

right to outdoor exercise in the midst of severe ongoing prison

violence was not clearly established at the time defendants

NORWOOD v. VANCE 443

acted. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001). “The

relevant, dispositive inquiry . . . is whether it would be clear

to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. at 202 (emphasis added).

[7] Three factors weigh heavily in our analysis: First, as

Saucier explains, the qualified immunity inquiry is highly

context-sensitive, turning on whether it would be clear to a

reasonable officer that denying outdoor exercise was unlawful

“in the situation he confronted.” Id. The extraordinary vio-

lence gripping the prison threatened staff and inmates alike,

and there was a serious risk that gangs would press unaffili-

ated inmates like Norwood into service. See pp.436-38 supra.

While Norwood argues that a reasonable officer would have

known that denying outdoor exercise in the midst of ongoing

prison violence violated his rights, he cites just one case Allen

v. Sakai, 48 F.3d 1082 (9th Cir. 1995)—for the general propo-

sition that the Ninth Circuit “is one of many [courts] that have

held that there is a constitutional right to outdoor exercise for

inmates.”

But Allen does not hold that a prisoner’s right to outdoor

exercise is absolute and indefeasible, or that it trumps all

other considerations. Plaintiffs in Allen survived summary

judgment because prison officials there relied on “inconse-

quential logistical concerns” to justify denying outdoor exer-

cise. Id. at 1088. Defendants here had substantial reasons for

imposing the lockdowns: They were attempting to restore

order during a series of brutal attacks, some lethal or nearly

so. They did not place “inconsequential logistical concerns”

above Norwood’s need for outdoor exercise. And plaintiff

offered no evidence that the lockdowns were meant to be

punitive or were otherwise implemented in bad faith.

[8] Second, prison officials have a duty to keep inmates

safe, and in particular to protect them from each other. Far-

mer, 511 U.S. at 832-33; LeMaire v. Maass, 12 F.3d 1444,

1462 (9th Cir. 1993). Officials must balance this imperative

444 NORWOOD v. VANCE

against other obligations that our laws impose, such as provid-

ing 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 vio-

lence under control. We’ve explained that “prison officials

have a right and a duty to take the necessary steps to reestab-

lish 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.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th

Cir. 1982). Here, at least one prisoner had died; others (pris-

oners and guards) had been severely wounded. Defendants

had to act decisively to stop the violence.

The dissent claims that the “jury reasonably rejected defen-

dants’ argument that unusual levels of violence justified the

long-term deprivations in this case” because “defendants con-

ceded on cross-examination that ‘those types of [violent] inci-

dents occur even when there is no lockdown,’ with the same

frequency, and that ‘the violence is pretty steady.’ ” Dissent

at 463-64 (emphasis omitted). But there’s more to the former

warden’s testimony:

While we were on lockdown status, these types of

things continued to happen. Either as we incremen-

tally unlocked and released to the small yards for

exercise, or sent—you know, releasing—lifting the

privileges to go to meals or whatever, violence con-

tinued to happen. And if that violence was—

occurred based on a decision that we made that we

felt it was safe, and we let the small group of prison-

ers out and something happened, then we would call

back our prior decision. [Emphasis added.]

What we understand the warden to be saying is that the lock-

downs were effective at curbing violence, and that violence

resumed as privileges were restored.

Such decisions are not to be judged with the benefit of

hindsight, in any event. It matters not whether the measures

NORWOOD v. VANCE 445

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 nec-

essary. But, when it comes to matters of life and death, erring

on the side of caution is a virtue. Certainly, no officer could

reasonably have anticipated that such prudence would be

found to violate the Eighth Amendment.

[9] Third, when 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 offi-

cials are afforded “wide-ranging deference.” Bell, 441 U.S. at

547. When a “lockdown was in response to a genuine emer-

gency,” and “restrictions were eased as the prison administra-

tion determined that the emergency 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.” Hayward v. Procunier, 629

F.2d 599, 603 (9th Cir. 1980).

[10] It would be particularly odd to hold that liability

attaches in this case, where hindsight validates defendants’

decisions. The record makes clear that a great deal of violence

took place during outdoor exercise. While denying outdoor

exercise for extended periods carried some risk of harm, offi-

cials’ judgment that there was a greater risk of harm from

allowing outdoor exercise was certainly reasonable. Indeed,

Norwood suffered no injuries from attacks by other inmates

or from being denied outdoor exercise—a fact the jury recog-

nized by awarding no compensatory damages. Norwood

might have fared less well had prison officials been less cau-

tious. Although exercise is “one of the basic human necessi-

ties protected by the Eighth Amendment,” LeMaire, 12 F.3d

at 1457, “a temporary denial of outdoor exercise with no med-

ical effects is not a substantial deprivation.” May v. Baldwin,

109 F.3d 557, 565 (9th Cir. 1997).

446 NORWOOD v. VANCE

[11] We therefore conclude that a reasonable officer could

have believed that restricting Norwood’s outdoor exercise

was consistent with the Eighth Amendment. Certainly, no

authority clearly established the contrary. Allen didn’t. See

p.443 supra. And Spain v. Procunier, 600 F.2d 189 (9th Cir.

1979), concerned inmates in disciplinary segregation who

were denied outdoor exercise as a normal condition of their

confinement, id. at 199-200, rather than for safety during

emergencies. Not surprisingly, our district courts have found

an absence of Eighth Amendment liability on facts similar to

these. See, e.g., Jones v. Garcia, 430 F. Supp. 2d 1095,

1102-03 (S.D. Cal. 2006) (finding no Eighth Amendment vio-

lation where prisoner was denied outdoor exercise for ten

months—double the longest single period that Norwood’s

exercise was restricted—because of ongoing violence); Hayes

v. Garcia, 461 F. Supp. 2d 1198, 1201, 1207-08 (S.D. Cal.

2006) (same for nine-month denial of outdoor exercise); Hurd

v. Garcia, 454 F. Supp. 2d 1032, 1042-45 (S.D. Cal. 2006)

(same for five-month denial).

Norwood argues that defendants had no need to conduct

lengthy lockdown investigations because those investigations

either found that the initial assaults were isolated incidents or

else could not determine who else was involved. Norwood

also argues that defendants could have limited exercise

restrictions to specific groups of prisoners. But the investiga-

tions were reasonable precautions, and defendants had no way

of knowing beforehand what they would yield. That defen-

dants imposed general lockdowns after some attacks on staff

but only group-specific restrictions after some attacks on

inmates does not show malicious intent or deliberate indiffer-

ence. Attacks on staff are, by their nature, more serious chal-

lenges to prison authority than attacks on other inmates.

[12] We decline Norwood’s invitation to micro-manage

officials whose expertise in prison administration far exceeds

our own, and we conclude that defendants are entitled to qual-

NORWOOD v. VANCE 447

ified immunity. On remand, the district court shall enter judg-

ment consistent with this opinion.

[13] Because plaintiff is no longer the prevailing party, we

vacate the award of attorney’s fees.

REVERSED.

THOMAS, Circuit Judge, dissenting:

There is no reason on this record to disturb the jury verdict.

The district court correctly analyzed the law and properly

instructed the jury consistent with our precedent. The jury

considered all of the evidence and rejected the government’s

theory that defendants were not deliberately indifferent

because security concerns justified the ongoing deprivations.

Substantial evidence supports the jury verdict.

I would not reach the question of qualified immunity

because the government did not preserve the issue for appeal.

Assuming for argument’s sake that it was proper for us to

entertain the defense, I would hold that the defendants were

not entitled to qualified immunity. Clearly established law

precludes prison officials from depriving inmates of outdoor

exercise for extended periods absent exigent circumstances.

The jury’s finding that defendants acted with reckless disre-

gard to the risk to Norwood’s health and safety leaves no

room to conclude defendants could reasonably have believed

their actions lawful.

For these reasons, I must respectfully dissent.

I

We afford trial judges “substantial latitude in tailoring jury

instructions.” Mockler v. Multnomah County, 140 F.3d 808,

448 NORWOOD v. VANCE

812 (9th Cir. 1998) (citation omitted). Here, there is no doubt

that the district court properly instructed the jury on the essen-

tial elements of the claim at issue. Indeed, the government

concedes that the jury was properly instructed, and it did not

object to the instruction given by the district court. What the

government sought was an additional, misleading instruction

that would have engrafted supplemental requirements onto

those dictated by precedent. The district court found that the

new instruction was unclear, undefined, and used language

that would be confusing to a lay jury. A district court does not

commit error in rejecting a misleading supplementary instruc-

tion that is at odds with a controlling instruction everyone

agrees was properly given. “Jury instructions must be formu-

lated so that they fairly and adequately cover the issues pre-

sented, correctly state the law, and are not misleading.” Id.

(citation omitted).

This case involved a challenge to prison conditions—

specifically, the long-term deprivation of outdoor exercise—

to which the deliberate indifference standard applies. The jury

was instructed that:

To establish deliberate indifference plaintiff must

prove defendant knew that plaintiff faced a substan-

tial risk of serious harm to his health or safety and

disregarded that risk by failing to take reasonable

measures to correct it. Under the deliberate indiffer-

ence standard, defendant must have been aware of

facts from which the inference could be drawn that

a substantial risk of serious harm to plaintiff’s health

or safety existed due to deprivation of outdoor exer-

cise, and defendant must also have drawn that infer-

ence.

The jury was further instructed that “[a] defendant who

actually knew of a substantial risk of a serious harm to plain-

tiff’s health or safety may be found free from liability if he

responded reasonably to the risk, even if the harm was not

NORWOOD v. VANCE 449

ultimately averted.” These instructions set forth—almost

verbatim—the deliberate indifference culpability standard for

cases involving challenges to prison conditions announced by

the Supreme Court in Farmer v. Brennan, 511 U.S. 825

(1994). See id. at 837 (“We hold . . . that a prison official can-

not be found liable under the Eighth Amendment for denying

an inmate humane conditions of confinement unless the offi-

cial knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.”);

id. at 844 (“[P]rison officials who actually knew of a substan-

tial risk to inmate health or safety may be found free from lia-

bility if they responded reasonably to the risk, even if the

harm ultimately was not averted.”). In combination with the

instruction that exercise did not have to be provided if “in-

clement weather, unusual circumstances, or disciplinary needs

makes that impossible,” the instructions conveyed to the jury

that it could not find defendants liable if the officials knew of

the risk posed by continuing the lockdowns without providing

for exercise, but responded reasonably to that risk under the

circumstances.

The government agreed that the jury instruction that “exer-

cise must be provided unless inclement weather, unusual cir-

cumstances, or disciplinary needs makes that impossible” was

“an adequate and proper statement of the law.” See Allen v.

Sakai, 40 F.3d 1001, 1004 (1994) (stating that prison officials

were required to “provide regular outdoor exercise to [the

plaintiff] unless ‘inclement weather, unusual circumstances,

or disciplinary needs made that impossible’ ”) (quoting Spain

v. Procunier, 600 F.2d 189, 199 (1979) (Kennedy, J.))).

What the government sought was an additional instruction

that amounted to a command to direct a verdict in favor of the

government:

In considering whether defendants were deliberately

indifferent to the need for outdoor exercise, the jury

450 NORWOOD v. VANCE

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

maintain internal stability in a prison.

The district court rejected the proffered jury instruction

because he found the deference language unclear and unde-

fined, noting that “one of my jobs as a judge is to provide the

jury with an understandable instruction, something that’s clear

to a lay person.”

One cannot fault the district court’s analysis.1 The proposed

instruction deviates from the Supreme Court’s formulation of

the standard of deliberate indifference in Farmer, and the dis-

trict court rightly concluded it might be confusing to a lay

jury.

The language sought by the government not only departed

from the proper and time-tested definition of deliberate indif-

ference, but also would have imported language that the

Supreme Court has held is not proper for such cases. The def-

erence language requested by defendants appears verbatim in

the model Ninth Circuit jury instruction for prisoner excessive

1

Indeed, by providing instructions defining deliberate indifference in

Farmer’s terms, rather than using the current version of the Ninth Circuit

Model Jury Instruction, the trial judge actually avoided error on another

front. See Clem v. Lomeli, No. 07-16764, slip op. at 6574-75 (9th Cir. June

2, 2009) (holding that district court erred in providing current Ninth Cir-

cuit Model Jury Instruction 9.25 because the instruction deviates from

Farmer, which does not require “direct causation by affirmative action”

of prison officials); id. at 6577 (emphasizing that current Ninth Circuit

Model Jury Instruction 9.25 does not adequately state the law because it

never “mentions or defines the term ‘deliberate indifference’ ”) (Hug, J.,

concurring).

NORWOOD v. VANCE 451

force claims, in which the heightened subjective culpability

standard set forth in Whitley v. Albers, 475 U.S. 312, 321-22

(1986), applies.2 See Ninth Circuit Manual of Model Jury

Instructions § 9.24 (2007 ed.).

However, the Whitley excessive force standard, under

which prison officials may be held liable only if they act “ma-

liciously or sadistically for the very purpose of causing harm,”

Whitley, 475 U.S. at 321-22 (citation omitted), does not apply

to claims challenging prison conditions. Indeed, our precedent

forecloses such an application, and defendants do not argue

otherwise. In Johnson v. Lewis, 217 F.3d 726 (2000), we held

that where prisoners were held handcuffed and prone in a

prison yard for four days after a riot, the heightened culpabil-

ity standard announced in Whitley applied to the prison offi-

cials’ actions up to the point when the inmates were secured,

but that once the prison officials “were no longer required to

make split-second, life-and-death decisions,” the deliberate

indifference standard applied. Id. at 734; see also Jordan v.

Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc)

(Whitley’s “maliciously or sadistically” standard applies “in

the context of a prison-wide disturbance or individual con-

frontation between an officer and prisoner,” when “correc-

tions officers must act immediately and emphatically to defuse

a potentially explosive situation”) (emphasis added). As we

explained in Jordan, the excessive force test involves the

examination of “the exercise of judgment of a particular offi-

cer on a specific occasion,” while the deliberate indifference

test generally involves “polic[ies] . . . developed over time,

with ample opportunity for reflection.” Jordan, 986 F.2d at

1528.

2

It is questionable whether this deference language is even properly

included in jury instructions for excessive force cases. See Catherine T.

Struve, Constitutional Decision Rules for Juries, 37 COLUM. HUM. RTS. L.

REV. 659, 679 (2006) (arguing that including deference language in exces-

sive force jury instruction double counts the deference due prison officials

because the Whitley standard already incorporates deference).

452 NORWOOD v. VANCE

The language that the government proposed in this case

would have effectively imposed the more deferential standard

we held inapplicable in Johnson and Jordan. The standards

for excessive force claims are not coextensive with the stan-

dards applicable to prison conditions claims. In my view, not

only was the trial judge justified in rejecting the instruction,

the judge would have committed error if he had given it.

Defendants contend that the deliberate indifference stan-

dard “did not capture the importance of deferring to the expert

judgment of prison officials concerning when outdoor exer-

cise could safely be resumed.” However, contrary to defen-

dants’ assertion, the deliberate indifference standard

announced in Farmer and adopted by the trial judge in his

instructions is a “standard that incorporates due regard for

prison officials’ ‘unenviable task of keeping dangerous men

in safe custody under humane conditions.’ ” Farmer, 511 U.S.

at 845 (emphasis added) (citing Spain, 600 F.2d at 193). The

Supreme Court in Farmer also cited its decision in Bell v.

Wolfish, 441 U.S. 520 (1979), in support of the iteration of the

deliberate indifference standard it adopted, indicating that the

principle of deference to the judgment of prison officials

undergirds the standard.3 See id. It is a mistake to confuse the

deference language surrounding the Supreme Court’s

announcement of the applicable standards in Whitley and

Farmer with the standards themselves. See Catherine T.

Struve, Constitutional Decision Rules for Juries, 37 COLUM.

HUM. RTS. L. REV. 659, 679 (2006) (noting that deference lan-

3

The majority argues that the requested instruction was required

because its language was drawn from Bell, a case that involved a chal-

lenge to conditions of confinement, albeit in the pretrial detention context.

However, Bell preceded the line of Supreme Court cases setting forth the

current standards applicable to prison conditions cases—including the

deliberate indifference standard. The deliberate indifference standard

incorporates the level of deference the Court has deemed warranted in the

context of challenges to prison conditions under the Eighth Amendment,

as opposed to challenges to prison policies and practices under generally

applicable constitutional provisions.

NORWOOD v. VANCE 453

guage in Whitley “explain[s] the Court’s choice of decision

rule, but need not be seen as a part of that decision rule”).

An instruction incorporating further deference would run

afoul of the Supreme Court’s rejection of such an approach in

Johnson v. California, 543 U.S. 499 (2005). In Johnson, the

Court expressly disavowed the applicability in the Eighth

Amendment context of the standard articulated in Turner v.

Safley, 482 U.S. 78, 89 (1987), namely that a “regulation is

valid if it is reasonably related to legitimate penological inter-

ests.” The Court reasoned that “the integrity of the criminal

justice system depends on full compliance with the Eighth

Amendment.” Johnson, 543 U.S. at 511. In support of this

assertion, the Court quoted with approval the following pas-

sage from Justice Kennedy’s decision for this Court in Spain:

[T]he full protections of the eighth amendment most

certainly remain in force [in prison]. The whole

point of the amendment is to protect persons con-

victed of crimes. . . . Mechanical deference to the

findings of state prison officials in the context of the

eighth amendment would reduce that provision to a

nullity in precisely the context where it is most nec-

essary.

Id. (quoting Spain, 600 F.2d at 194). Inclusion of the

requested deference instruction, in light of the fact that the

appropriate level of deference was already incorporated in the

culpability standard, would have invited exactly the sort of

“mechanical deference” the Supreme Court has rejected.

Further, Farmer suggests that it is judges at whom the def-

erence language in the Bell line of cases is directed, and

judges who must be mindful of the respective competencies

of the judiciary and executive branches. See Farmer, 511 U.S.

at 846-47 (noting that district courts should approach grant of

injunctive relief in prison conditions cases with caution lest

they become “enmeshed in the minutiae of prison opera-

454 NORWOOD v. VANCE

tions”) (quoting Bell, 441 U.S. at 562). Farmer does not sug-

gest that this complex balancing of competing institutional

interests should be placed directly in the hands of jurors. See

Struve, supra, at 681-82 (arguing that not all judicial decision

rules are appropriate for use as decision rules for juries).

While juries, as part of the judicial branch, no doubt have an

indirect role to play in this balancing process, they properly

play this role by applying the standards the Supreme Court

has determined strike the appropriate balance. The district

court in this case accurately instructed the jury on those stan-

dards. In doing so, the district court in this case wisely recog-

nized that not every general legal principle “lifted from the

case law” is properly provided as instruction to the jury. The

court correctly concluded that to give the government’s dou-

ble deference instruction would have been confusing to a lay

jury.4

4

The majority criticizes the trial judge on this point, contending that def-

erence is a commonly understood lay term, and could not have been con-

fusing. However, its citation of language in the novel Airframe illustrates

the problem. Instructing a jury to give prison officials deference, if defer-

ence commonly “borders on fear,” is not a correct application of the law

and would have amounted to directing a verdict in favor of the govern-

ment. Even in our sterile legal environment, deference comes in varietals,

such as Chevron deference, Skidmore deference, and sardonic deference.

See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J.,

dissenting) (“With all due deference, I am not at all convinced that the

additional barriers to the pursuit of truth which the Court today erects rest

on anything like the solid foundations which decisions of this gravity

should require.”). And, of course, there is more than one breed of institu-

tional deference relevant to this case. See, e.g., McCord v. Maguire, 873

F.2d 1271, 1274 (9th Cir. 1989) (correctly noting that we must be “mind-

ful of the deference due the verdict of a jury”) (citation omitted). Here, the

trial judge quite rightly concluded that to give an instruction that mixed

legal standards and, in effect, told the jury to layer deference upon defer-

ence, was not appropriate—particularly when the judge had already given

an entirely proper instruction on the topic. (I must, however, acknowledge

that the majority is quite correct in intuiting that, unsurprisingly, there is

no Klingon word for “deference.” See generally Marc Okrand, THE

KLINGON DICTIONARY (Star Trek 1992)).

NORWOOD v. VANCE 455

Because the relevant level of deference is already incorpo-

rated into the content of the culpability standards governing

the conduct of prison officials, the district court correctly

rejected the instruction. The requested instruction misstated

applicable law and, as the district court properly concluded,

would have been confusing to the jury. Moreover, everyone

agrees that the primary instruction given by the judge on this

issue was entirely proper. The trial judge properly rejected the

defendants’ proffered “deference” instruction, in favor of an

instruction that everyone agrees correctly stated the applicable

law.5

II

The government did not preserve its qualified immunity

defense for appeal. The rules for preserving a qualified immu-

nity defense are straightforward. Qualified immunity is an

affirmative defense that must be pleaded in the answer. Sie-

gert v. Gilley, 500 U.S. 226, 231 (1991). However, “defen-

dants may raise an affirmative defense for the first time in a

motion for summary judgment . . . if the delay does not preju-

dice the plaintiff.” Magana v. Commonwealth of N. Mariana

Islands, 107 F.3d 1436, 1446 (9th Cir. 1997).

5

Although I have elected to discuss this issue on the merits, there is con-

siderable force to the plaintiff’s argument that the government failed to

preserve the question for appeal. Under Fed. R. Civ. P. 51(d)(1)(B), a

party may assign as error “a failure to give an instruction, if that party

properly requested it and—unless the court rejected the request in a defini-

tive ruling on the record—also properly objected.” (emphasis added). As

I have noted, at the conference at which the instructions were discussed,

the trial judge indicated that he found the government’s proposed instruc-

tion confusing and indicated that he was not inclined to give it. However,

he also stated, “at this juncture, you may have an opportunity to show me

that I’m wrong later, I think the plaintiff’s position is correct.” At the criti-

cal moment in the trial, when the judge asked for objections to the instruc-

tions as given, the government stated that it “will not object to any of the

instructions” except to “renew the defendants’ request for failure to miti-

gate.” The government did not, at the critical juncture when formal objec-

tions were to be made, request that the court give the additional deference

instruction.

456 NORWOOD v. VANCE

If the district court denies qualified immunity on a sum-

mary judgment motion, the order is immediately appealable

as a collateral order if the judgment is made as a matter of law

and “the issue appealed concerns whether the facts demon-

strated a violation of clearly established law.” Rodis v. City

and County of San Francisco, 558 F.3d 964, 968 (9th Cir.

2009) (citation omitted). If the district court denies summary

judgment on qualified immunity because there remain genu-

ine issues of material fact, then there is no right of interlocu-

tory appeal, because such an order is not a “final, immediately

appealable order.” Maropulos v. County of Los Angeles, 560

F.3d 974, 975 (9th Cir. 2009) (per curiam); see also KRL v.

Estate of Moore, 512 F.3d 1184, 1188-89 (9th Cir. 2008)

(“Our jurisdiction is limited to questions of law, and does not

extend to qualified immunity claims involving disputed issues

of material fact.”).

If the district court denies qualified immunity because there

are genuine issues of material fact, then the case proceeds to

trial. “When a qualified immunity claim cannot be resolved

before trial due to a factual conflict, it is a litigant’s responsi-

bility to preserve the legal issue for determination after the

jury resolves the factual conflict.” Tortu v. Las Vegas Metro.

Police Dep’t., 556 F.3d 1075, 1083 (9th Cir. 2009). To pre-

serve the issue of qualified immunity, the defendants must

make a motion for judgment as a matter of law under Fed. R.

Civ. P. 50(a). Id. The Rule 50(a) motion must be filed “at any

time before the case is submitted to the jury.” Id. at 1081. A

party may also renew the motion for judgment as a matter of

law based on qualified immunity after trial under Fed. R. Civ.

P. 50(b). However, a “failure to file a Rule 50(a) motion pre-

cludes consideration of a Rule 50(b) motion for judgment as

a matter of law.” Id. at 1083. Filing a motion for summary

judgment or raising the issue in pre-trial submissions is not

sufficient to avoid a waiver. Id. at 1082.

Here, defendants raised qualified immunity as an affirma-

tive defense and moved for summary judgment. The district

NORWOOD v. VANCE 457

court denied summary judgment because there were genuine

issues of material fact. In their pretrial statement, defendants

acknowledged that their motion for qualified immunity had

been denied based on the existence of material factual dis-

putes and stated that their “entitlement to qualified immunity

at trial will depend on what evidence is produced to the court

for determination of this issue.”

The case proceeded to trial. Defendants did not request that

the judge give any instructions to the jury pertinent to the

immunity defense. Defendants did not file a Rule 50(a)

motion for judgment as a matter of law before the case was

submitted to the jury. Nor did defendants file a renewed

motion for judgment as a matter of law pursuant to Rule 50(b)

after the verdict was rendered. In fact, after a jury was seated,

the issue of qualified immunity was never mentioned again in

the district court. At oral argument, defendants conceded that

they provided the district court no opportunity to rule on the

question whether, on the facts established at trial, they were

entitled to qualified immunity. Defendants offered no argu-

ment or explanation as to why the issue should not be deemed

forfeited. Plainly, defendants did not preserve their post-trial

assertion of qualified immunity for appeal. Under Tortu, the

government has forfeited its qualified immunity defense, and

we should not consider it for the first time on appeal.

The majority quite rightly notes that the plaintiff did not

raise the issue of waiver in its appellate briefing, which was

a serious omission. That omission places the question of

whether to entertain the government’s belated qualified

immunity argument within our sound discretion. I would not

choose to exercise such discretion.6 By entertaining an appeal

6

We have never held that we must reach the merits of an immunity

defense abandoned by the government below when the plaintiff fails to

argue waiver in the briefs. While the majority cites several of our cases

for the proposition that the Court does not address waiver if not raised by

the opposing party, none of these cases involved a party’s failure to raise

458 NORWOOD v. VANCE

based on a defense abandoned at trial, we impose on trial

judges the untenable duty of sua sponte re-examining a jury

verdict in light of abandoned defenses. The Rules set forth the

procedure for raising legal challenges to jury verdicts: making

a motion for judgment as a matter of law. The requirement is

critical not only to the structure of the adversary system, but

to our appellate system in which the trial court considers legal

arguments in the first instance. There are, of course, excep-

tions to this general rule and, from time to time, we have

indulged new legal arguments for the first time on appeal.

However, I would not make an exception in this case with the

effect of imposing a new duty on the trial court sua sponte to

consider abandoned defenses after the jury has issued its ver-

dict.

III

Assuming that the question of qualified immunity is prop-

erly before us, I would hold under the circumstances pre-

sented here that a reasonable officer could not have believed

the exercise deprivations in this case were lawful. Because the

government did not preserve the issue for appeal, we review

properly a defense to liability in the trial court. See Tokatly v. Ashcroft,

371 F.3d 613, 618 (9th Cir. 2004) (government waived argument that peti-

tioner had waived argument before the immigration judge); United States

v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002) (government

expressly waived argument that defendant had waived his right to appeal

as part of plea agreement); United States v. Doe, 53 F.3d 1081, 1082-83

(9th Cir. 1995) (where government urged court at oral argument to decide

issue on merits, argument that defendant had waived challenge to sentence

by not raising it on direct appeal was waived); United States v. Lewis, 787

F.2d 1318, 1323 n.6 (9th Cir. 1986) (court declined to address govern-

ment’s argument, raised for the first time in petition for rehearing, that

defendant had waived instructional error argument in trial court). Because

deciding in the first instance the applicability of an abandoned defense to

liability after a general jury verdict implicates concerns not present in

these cases, I would not extend the “waiver of waiver” principle to this

new context.

NORWOOD v. VANCE 459

the claim under the familiar plain error standard. To prevail

on plain error review, the government must show (1) that the

proceedings below involved error, (2) that the error is plain,

and (3) that the error affected the substantial rights of the

aggrieved party. United States v. Olano, 507 U.S. 725, 732-35

(1993). In addition, the government must also show that the

alleged error—here, the trial judge’s failure, after the evi-

dence was presented, sua sponte to enter judgment as a matter

of law for defendants based on qualified immunity—

“ ‘seriously affect[s] the fairness, integrity or public reputa-

tion of judicial proceedings’ before we will exercise our dis-

cretion pursuant to Rule 52(b) to correct the plain error.”

United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir.

2006) (en banc) (internal quotation marks omitted).

To prevail on his Eighth Amendment prison conditions

claim, Norwood had to establish that he was subjected to an

objectively serious deprivation and thatprison officials were

deliberately indifferent to his health or safety. Farmer, 511

U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 303 (1991). As

the trial judge correctly instructed the jury, and defendants

conceded in their pretrial statement, the complete denial of

outdoor exercise for periods of up to four and one-half months

satisfies the objective prong of the Farmer test. Indeed, it was

clearly established at the time of the lockdowns involved in

this case that the complete deprivation of outdoor exercise for

periods of two to four and one-half months constituted an

objectively serious deprivation for purposes of the Eighth

Amendment.

Thirty years ago, we recognized that “some form of regular

outdoor exercise is extremely important to the psychological

and physical well being of the inmates.” Spain v. Procunier,

600 F.2d 189, 199 (9th Cir. 1979). In Spain, we held that

inmates classified as dangerous due to violent acts in prison

and confined to a disciplinary unit were entitled to regular

outdoor exercise. Subsequent cases in our circuit clearly

establish that the denial of outside exercise for extended peri-

460 NORWOOD v. VANCE

ods “is a sufficiently serious deprivation and thus meets the

requisite harm necessary to satisfy Wilson’s objective test.”

LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). In

LeMaire we noted that “this circuit has determined that the

long-term denial of outside exercise is unconstitutional” but

found no violation where a prisoner had both “abused [his

outdoor exercise privileges] and represent[ed] a grave security

risk when outside his cell.” Id. at 1458. Shortly after LeMaire,

in Allen v. Sakai, 40 F.3d 1001 (9th Cir. 1994), we held that

prison officials were not entitled to summary judgment on

grounds of qualified immunity where the plaintiff prisoner

was provided only 45 minutes of exercise per week during a

six-week period. We stated that in light of our prior cases, “it

should have been apparent to defendants that they were

required to provide regular outdoor exercise to [the plaintiff]

unless ‘inclement weather, unusual circumstances, or disci-

plinary needs made that impossible.’ ” Id. at 1004 (citing

Spain, 600 F.2d at 199). And, while we noted in May v. Bald-

win, 109 F.3d 557 (9th Cir. 1997), that “a temporary denial

of exercise with no medical effects is not a substantial depri-

vation,” id. at 565, May involved the denial of exercise for

only 21 days as opposed to the four deprivations of two to

four-and-one-half months in this case, totaling more than a

year out of a period of less than two years.

We have held that in cases of genuine emergency, the tem-

porary deprivation of outdoor exercise may not violate the

Eighth Amendment. In Hayward v. Procunier, 629 F.2d 599

(9th Cir. 1980), we upheld a district court’s grant of summary

judgment to prison officials but specifically noted that the

lockdown was “temporary and plaintiffs . . . were allowed

approximately the minimum exercise mandated in Spain

within a month after the imposition of the lockdown.” Id. at

603. We premised our holding on the fact that the district

court had “carefully reviewed the restrictions of the lockdown

in light of the emergency at the prison and determined that

they did not cross the eighth amendment line.” Id. Similarly,

in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), after not-

NORWOOD v. VANCE 461

ing that “when a genuine emergency exists, prison officials

may be more restrictive than they otherwise may be, and cer-

tain services may be suspended temporarily,” id. at 1259

(emphasis added), we remanded to the district court to con-

sider “the length of time each restriction was in effect, and

whether the restriction and its duration bore a relationship to

legitimate attempts to ease the emergency.” Id.

In this case, the magistrate judge denied summary judg-

ment for defendants on the grounds that there were genuine

issues of fact regarding whether an emergency necessitated

the months-long complete deprivations of outdoor exercise in

this case. The magistrate judge also found a genuine issue of

fact existed as to whether during these periods other arrange-

ments for outdoor exercise were feasible—for example, in

small groups on the smaller concrete yards. Finally, the mag-

istrate judge found disputed facts regarding defendants’ repre-

sentation that an extended lockdown depriving all inmates of

physical exercise was called for where violence was precipi-

tated by identifiable groups. In short, the magistrate judge

found that these factual issues—material to both the deliberate

indifference and qualified immunity inquiries—were dis-

puted. The precise circumstances surrounding the continua-

tion of the four lockdowns without any arrangements for

outdoor exercise were deemed issues of fact for trial.

The case proceeded to trial before a jury, and the jury heard

testimony from defendants describing the circumstances sur-

rounding the decisions to continue the total lockdowns, the

feasibility of providing outdoor exercise in smaller groups on

the mini-yards, and the officers’ opinions as to the harmful-

ness of exercise deprivation. After hearing all the evidence,

the jury found that the defendants had been deliberately indif-

ferent in failing to provide Norwood access to outdoor exer-

cise during each of the four lockdown periods. Furthermore,

the jury determined that Norwood was entitled to punitive

damages. To do so, the jury had to find that the defendants

were not merely deliberately indifferent to the risk to Nor-

462 NORWOOD v. VANCE

wood’s health posed by the deprivation of outdoor exercise,

but that defendants’ conduct was “malicious, or in reckless

disregard of plaintiff’s rights.”

In determining whether the facts established entitle defen-

dants to qualified immunity, “the party that prevailed at trial

is entitled to have the evidence construed in a light most

favorable to it, and the question is whether the evidence was

so one-sided that one party would have to prevail as a matter

of law.” Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir.

1997) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 880

F.2d 176, 181 (9th Cir. 1989)); see also Jennings v. Jones,

499 F.3d 2, 7 (1st Cir. 2007) (holding that where defendants

press qualified immunity after a general jury verdict, the court

is required to view facts relevant to qualified immunity deter-

mination “in the light most favorable to the verdict”). Here,

the jury found defendants acted not merely with deliberate

indifference to Norwood’s right to outdoor exercise, but with

reckless disregard for it. The evidence viewed in light of that

finding does not support a defense of qualified immunity,

which requires that defendants reasonably believed their con-

duct to be lawful.

The government relies on a number of factual claims that

were disputed at trial, and which the verdict indicates the jury

rejected. For example, the government asserts that after the

lockdowns, the officials gradually eased restrictions “based on

what they learned.” In fact, the jury heard testimony from

prison officials that they “never even received anonymous

information that a group, or any specific . . . inmate was

involved in these plots to assault staff other than the perpetra-

tors” who were identified on the day of the first two attacks.

The jury also heard evidence that contradicted prison offi-

cials’ statements that they did not know if other inmates,

including inmates of other races, were responsible for the first

attack.7 Finally, with regard to the attack precipitating the

7

With regard to the first attack on staff by Hispanic inmates, Norwood

tendered evidence that staff “believed it was likely that the Southern His-

panics had put a hit out on staff” and that, generally speaking, Southern

Hispanic and black inmates were unlikely to form alliances.

NORWOOD v. VANCE 463

fourth lockdown, Norwood tendered evidence that prison offi-

cials knew shortly after—and perhaps before—the attack that

the lone perpetrator, a Crip gang member, had specifically tar-

geted the staff member who was attacked and was already on

lockdown status at the time of the attack because prison staff

had information that Crip inmates were going to assault some-

one in the facility.

Similarly, the government notes that Norwood, who was

not affiliated with any prison gangs, was locked down after

the attacks instigated by known gang members because “gang

members often pressured unaffiliated inmates of the same eth-

nicity to assist them.” However, Norwood tendered evidence

—in the form of numerous memoranda from prison officials

to staff and inmates—that the usual course of action after a

violent incident was to lock down those inmates closely iden-

tified with the group to which the attacker belonged, for

example, Crip inmates in the case of an incident involving

Crips. Furthermore, Defendant Pliler conceded that pressuring

and violence among races and gangs occur during normal pro-

gramming and that “[t]hat’s the nature of the prisoner at the

prison.”

The majority claims that the fact that defendants imposed

general lockdowns after attacks on staff but only group-

specific restrictions after attacks on inmates “does not show

malicious intent or deliberate indifference.” The majority also

states that “plaintiff offered no evidence that the lockdowns

were meant to be punitive or were otherwise implemented in

bad faith.” However, the jury thought otherwise, rejecting the

defendants’ testimony that the exercise deprivations were

motivated primarily by the officials’ concerns for safety and

security.

Finally, the majority suggests that defendants reasonably

decided to continue the lockdowns given the occurrence of

violent incidents during and after lockdown periods. How-

ever, defendants conceded on cross-examination that “those

464 NORWOOD v. VANCE

types of incidents occur even when there is no lockdown”

with the same frequency, and that “the violence is pretty

steady.” Thus, the jury reasonably rejected defendants’ argu-

ment that they believed the unusual levels of violence justi-

fied the long-term deprivations in this case. Indeed,

defendants’ argument that the circumstances here were “un-

usual” and excused the exercise deprivation is belied by the

length of the lockdowns, which persisted for periods totaling

over one year out of a twenty-two month period.

In sum, the evidence as to the necessity of the long-term

exercise deprivations at issue in this case, viewed in light of

the jury verdict for Norwood, does not provide a sufficient

basis for determining, as a matter of law, that defendants were

entitled to qualified immunity. The alleged error of the trial

judge in failing sua sponte to grant qualified immunity cer-

tainly does not rise to the level of plain error. The district

court did not commit error—much less a plain error—and it

would be hard to imagine a trial court decision less likely to

“seriously affect the fairness, integrity or public reputation of

judicial proceedings” than a decision not to give a jury

instruction that the trial judge determined would be confusing

to the jury. Thus, if I were to reach the merits of the qualified

immunity defense, I would affirm the judgment of the district

court.

IV

The district court correctly applied the law and instructed

the jury according to controlling precedent. The jury, after

hearing a full evidentiary presentation, rejected the defen-

dants’ justification. The government failed to preserve the

defense of qualified immunity for appeal. Indeed, the govern-

ment did not even mention the affirmative defense after the

jury was seated, much less make the appropriate motion to

present the question to the district court for its consideration.

The district court did not commit error, much less plain error,

in not sua sponte granting judgment as a matter of law after

NORWOOD v. VANCE 465

trial based on an abandoned affirmative defense. There is no

justification for overturning the jury’s verdict.

I respectfully dissent.