Petition for Writ of Certiorari — Calvin Johnson, Warden, Petitioner v. Luis Cardenas-Ornelas
Supreme Court briefSep 18, 2026
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No. _________
In the Supreme Court of the United States
──────────────────────────
CALVIN JOHNSON,
Petitioner,
v.
LUIS CARDENAS-ORNELAS,
Respondent.
──────────────────────────
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
──────────────────────────
PETITION FOR WRIT OF CERTIORARI
──────────────────────────
AARON D. FORD
Attorney General of Nevada
HEIDI PARRY STERN
Solicitor General
JEFFREY MORGAN CONNER
Chief Deputy Solicitor General
Counsel of Record
CHRIS DAVIS
Senior Deputy Attorney General
STATE OF NEVADA
OFFICE OF THE ATTORNEY GENERAL
100 North Carson Street
Carson City, NV 89701
(775) 684-1100
jconner@ag.nv.gov
Counsel for Petitioner
i
QUESTIONS PRESENTED
Plaintiff Luis Cardenas-Ornelas pleaded a claim
alleging that restrictions on yard time during the
COVID-19 pandemic deprived him of opportunities for
outdoor exercise in violation of the Eighth
Amendment. The Ninth Circuit relied on its caselaw
generally identifying a right to “outdoor exercise or
otherwise meaningful opportunities for recreation”
under the Eighth Amendment to satisfy the clearly
established law prong of qualified immunity before
considering the specific circumstances of CardenasOrnelas’s constitutional claim to decide only whether
the alleged claim presented a viable constitutional
violation that could survive summary judgment.
The questions presented are:
Whether the Ninth Circuit’s opinion, which
inverted the test for qualified immunity and
considered whether a right to “outdoor exercise or
otherwise meaningful recreation” is clearly
established as a general matter of law before
considering whether the specific circumstances of this
case present a viable constitutional claim, conflicts
with this Court’s repeated warnings to avoid defining
clearly established law at a high level of generality.
Whether the Ninth Circuit’s opinion conflicts with
this Court’s controlling opinions because the record
lacks evidence of an “objectively intolerable risk of
serious harm” necessary to satisfy the objective and
subjective criteria for proving a claim under the Cruel
and Unusual Punishment Clause.
ii
PARTIES TO THE PROCEEDINGS
Petitioner is Nevada Department of Corrections
(NDOC) Warden Calvin Johnson, an induvial who
was one of the defendants and the appellant below.
Respondent is Luis Cardenas-Ornelas, an
individual who is lawfully incarcerated by NDOC, and
was the plaintiff and appellant below.
iii
DIRECTLY RELATED PROCEEDINGS
Luis Cardenas-Ornelas v. Calvin Johnson, et al.,
United States Court of Appeals for the Ninth Circuit
Case No. 24-6755 (9th Cir.), Order Denying Petition
for Rehearing entered April 22, 2026.
Luis Cardenas-Ornelas v. Director Wickham, et al.,
United States District Court for the District of Nevada
Case No. 2-21-cv-00030, Order Granting in part and
Denying in part Defendants’ Motion for Summary
Judgment entered Sept. 30, 2024.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ......................................... i
PARTIES TO THE PROCEEDINGS .......................... ii
DIRECTLY RELATED PROCEEDINGS .................. iii
TABLE OF CONTENTS.............................................. iv
TABLE OF APPENDICES........................................... v
TABLE OF AUTHORITIES ........................................ vi
PETITION FOR WRIT OF CERTIORARI ................. 1
OPINIONS BELOW...................................................... 3
JURISDICTION ............................................................ 4
CONSITUTUTIONAL AND STATUTORY
PROVISONS AT ISSUE ........................................... 4
STATEMENT OF THE CASE ..................................... 5
I.
Legal Background .............................................. 5
II. Factual Background .......................................... 6
II. Proceedings Below ........................................... 10
REASONS FOR GRANTING THE PETITION ....... 14
I.
The Ninth Circuit’s Opinion Inverts the
Test for Qualified Immunity, Leading to
Misapplication of the Clearly Established
Law Requirement. ........................................... 14
II. The Ninth Circuit’s Flawed Analysis Led
to the Wrong Result. ........................................ 16
III. The Ninth Circuit’s Merits Analysis is
Wrong Under Farmer ...................................... 25
v
IV. A Conflict Between the Ninth Circuit’s
Opinions
on
Claims
Challenging
Corrections Officials’ Responses to
COVID-19 Further Supports Granting
Review. .............................................................. 28
CONCLUSION ............................................................ 31
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JANUARY 29, 2026 .... 1a
APPENDIX B — MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, FILED JANUARY 29,
2026 ......................................................................... 16a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF NEV DA, FILED SEPTEMBER 30,
2024 ......................................................................... 22a
APPENDIX D — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED APRIL 22, 2026 ........ 64a
APPENDIX E — RELEVANT CONSTITUTIONAL PROVISIONS ......................................... 66a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Baze v. Rees,
553 U.S. 35 (2008) .................................................... 26
Bell v. Wolfish,
441 U.S. 520 (1979) .................................................. 30
Cardenas-Ornelas v. Johnson,
165 F.4th 1234 (9th Cir. 2026) ................................. 3
Cardenas-Ornelas v. Johnson,
No. 24-6755, 2026 WL 237695 (9th Cir. 2026) ....... 3
Cardenas-Ornelas v. Wickham,
Case No. 2:21-cv-00030-ART-VCF,
2024 WL 4368152 (D. Nev. Sept. 30, 2024) ............ 3
City & Cnty. of San Francisco v. Sheehan,
575 U.S. 600 (2015) ....................................1, 2, 15, 16
District of Columbia v. Wesby,
583 U.S. 48 (2018) .............................................. 17, 18
Farmer v. Brennan,
511 U.S. 825 (1994) ............................. 3, 5, 25, 26, 27
Hampton v. California,
83 F.4th 754 (9th Cir. 2023) ......................... 3, 29, 30
Kisela v. Hughes,
584 U.S. 100 (2018) .................................................... 2
LeMaire v. Maass,
12 F.3d 1444 (9th Cir. 1993) ............................. 19, 21
vii
Maney v. Oregon,
Case No. 24-2715, 2025 WL 1794110
(9th Cir. June 30, 2025) ...................................... 3, 30
McGuire v. Johnson,
Case No. 25-1457, 2026 WL 1330543 (9th Cir.
May 13, 2026) ....................................................... 3, 30
Mitchell v. Forsyth,
472 U.S. 511 (1985) .................................................. 30
Norbert v. City & Cnty. of San Francisco,
10 F.4th 918 (9th Cir. 2021) .... 12, 18, 19, 21, 23, 24
Norwood v. Vance,
591 F.3d 1062 (9th Cir. 2015) ........ 18, 22, 23, 24, 28
Pearson v. Callahan,
555 U.S. 223 (2009) ........................... 1, 14, 15, 16, 30
Peralta v. Dillard,
744 F.3d 1076 (9th Cir. 2014) ................................. 27
Saucier v. Katz,
533 U.S. 194 (2001) ......................................14, 19, 30
Shorter v. Baca,
895 F.3d 1176 (9th Cir. 2018) .....................19, 20, 21
Spain v. Procunier,
600 F.2d 189 (9th Cir. 1979) ................................... 21
Thomas v. Ponder,
611 F.3d 1144 (9th Cir. 2010) ................................. 20
Wilson v. Seiter,
501 U.S. 294 (1991) .................................................... 5
Zorn v. Linton,
607 U.S. 568 (2026) ................1, 2, 5, 6, 15-19, 21, 25
viii
Constitution, Statutes and Other
Authorities
U.S. Const. amend. VII ........ 4, 5, 10, 11, 15-26, 28, 29
28 U.S.C. § 1254(1) ........................................................ 4
42 U.S.C. § 1983 ........................................................ 4, 5
Northwestern Medicine, When did the Pandemic Start and End? Covid 19 Pandemic
Timeline, https://www.nm.org/healthbeat/
medical-advances/new-therapies-and-drug-trials/covid-19-pandemic-timeline (updated Apr.
2025) (last viewed Sept. 15, 2026) ........................... 6
1
PETITION FOR WRIT OF CERTIORARI
The COVID-19 pandemic required many
government officials to make judgment calls on
matters of public health and safety with incomplete
and constantly evolving information. Prison officials
were no exception. This case presents a challenge to
decisions Warden Calvin Johnson made when he was
in the unenviable position of balancing the need to
protect the inmates in his custody from a potentially
deadly and highly contagious disease with providing
those inmates with opportunities for exercise and
social interaction. The unique circumstances and
challenges that COVID-19 created as it ravaged the
globe present a textbook foundation for granting
qualified immunity to corrections officials like
Warden Johnson.
Qualified immunity is available unless the
reviewing court can “identify a case where an officer
taking similar actions in similar circumstances ‘was
held to have violated’ the Constitution.” Zorn v.
Linton, 607 U.S. 568, 574 (2026) (emphasis added).
Decisions that improperly deny qualified immunity
“wrongly subject individual officers to liability” and
undermine the important role qualified immunity
plays in “shield[ing] officials from harassment,
distraction, and liability when they perform their
duties reasonably.” City & Cnty. of San Francisco v.
Sheehan, 575 U.S. 600, 611 n.3 (2015); Pearson v.
Callahan, 555 U.S. 223, 232 (2009).
For that reason, this Court has repeatedly
instructed lower courts “not to define clearly
established law at a high level of generality.”
2
Sheehan, 575 U.S. at 613 (internal quotation marks
omitted). And it has repeatedly warned that the
identification of general principles of law like stating
“that an officer may not use unreasonable and
excessive force” is insufficient to conclude that the law
is clearly established when considering the specific
circumstances of any given case. Kisela v. Hughes, 584
U.S. 100, 105 (2018). “An officer cannot be said to have
violated a clearly established right unless the right’s
contours were sufficiently definite that any
reasonable official in the defendant’s shoes would
have understood he was violating it.” Id. (internal
quotation marks omitted).
This case calls for this Court to correct a lower
court’s repetition of the same class of error this Court
corrected last term in Zorn and many times over in
past cases from the Ninth Circuit. Zorn, 607 U.S. 572–
74; Kisela, 584 U.S. at 104 (quoting Sheehan, 575 U.S.
at 613). The Ninth Circuit’s published opinion here
fails to comply with the relevant standard in a
seemingly novel way that warrants a decision from
this Court. While inverting the test for applying
qualified immunity, which Pearson admittedly allows,
the Ninth Circuit improperly considered whether its
case law “clearly established a prisoner’s Eighth
Amendment right to outdoor exercise or otherwise
meaningful opportunities for recreation” before
considering the specific factual circumstances of the
case only to decide whether the underlying claim
presents a viable constitutional violation.
This published opinion has already led another
panel of the Ninth Circuit astray and will continue to
do so without this Court’s intervention. See, e.g.,
3
McGuire v. Johnson, Case No. 25-1457, 2026 WL
1330543 (9th Cir. May 13, 2026). To make matters
worse, the Ninth Circuit’s underlying merits analysis
conflicts with the standard from Farmer v. Brennan,
511 U.S. 825 (1994). And the Ninth Circuit’s infidelity
to controlling legal standards in this case and in
others involving challenges to corrections officials’
responses to the COVID-19 pandemic has created an
untenable conflict within the Ninth Circuit. Hampton
v. California, 83 F.4th 754, 770 (9th Cir. 2023); see
also Maney v. Oregon, Case No. 24-2715, 2025 WL
1794110 (9th Cir. June 30, 2025). This Court should
grant the petition and summarily reverse. Sup. Ct. R.
10(c).
OPINIONS BELOW
The Ninth Circuit’s opinion dated January 29,
2026, affirming in part, and reversing in part the
district court’s judgment is reported at CardenasOrnelas v. Johnson, 165 F.4th 1234 (9th Cir. 2026).
App. 2a–15a. The Ninth Circuit’s related
memorandum is unreported but can be found at
Cardenas-Ornelas v. Johnson, No. 24-6755, 2026 WL
237695 (9th Cir. 2026). App. 16a–21a. The Ninth
Circuit’s order denying rehearing and rehearing en
banc was filed on April 22, 2026. App. 64a–65a. The
Nevada district court’s September 30, 2024 order
denying Warden Johnson’s motion for summary
judgment asserting qualified immunity is unreported
but can be found at Cardenas-Ornelas v. Wickham,
Case No. 2:21-cv-00030-ART-VCF, 2024 WL 4368152,
at *1 (D. Nev. Sept. 30, 2024). App. 22a–63a.
*
*
*
4
JURISDICTION
The court of appeals entered judgment on January
29, 2026, (App. 1a), and denied Petitioner’s timely
petition for rehearing and rehearing en banc on April
22, 2026, (App. #64a). On August 27, 2026, Justice
Kagan granted Warden Calvin Johnson’s application
(26A71) to extend the time to file a petition for writ of
certiorari until September 18, 2026. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSITUTUTIONAL AND STAUTORY
PROVISONS AT ISSUE
Respondent asserted a violation of the Eighth
Amendment to the United States Constitution, which
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.
Respondent’s claim was brought pursuant to 42
U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . , subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress . . . .
5
STATEMENT OF THE CASE
I.
Legal Background
Conditions of confinement claims are examined
under the Cruel and Unusual Punishment Clause of
the Eighth Amendment. Wilson v. Seiter, 501 U.S.
294, 304 (1991). First, an inmate must establish that,
as an objective matter, he was “incarcerated under
conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834. Second, the inmate must
establish that the official knew of and disregarded “an
excessive risk to inmate health or safety.” Id. at 837.
“Government officials enjoy qualified immunity
from suit under § 1983 unless their conduct violates
clearly established law.” Zorn, 607 at 571. “A right is
clearly established when it is sufficiently clear that
every reasonable official would have understood that
what he is doing violates that right.” Id. at 572
(internal quotation marks omitted). But when
existing precedent does not put a constitutional
question “beyond debate,” clearly established it is not.
Id. (internal quotation marks omitted). A finding that
a right is clearly established generally requires
identification of “a case where an officer acting under
similar circumstances was held to have violated the
Constitution.” Id. (internal quotation marks omitted).
“The relevant precedent must define the right with a
high degree of specificity, so that every reasonable
official would interpret it to establish the particular
rule the plaintiff seeks to apply.” Id. (internal
quotation marks omitted). Officials “receive qualified
immunity unless they could have read the relevant
precedent beforehand and known that it proscribed
6
their specific conduct.” Id. (internal quotation marks
and brackets omitted). When there is no case holding
that an official violated the Constitution by “taking
similar actions in similar circumstances,” the official
is generally entitled to immunity. Id. at 574.
II.
Factual Background
1. In February of 2020, Plaintiff Luis CardenasOrnelas was an inmate in the custody of the Nevada
Department of Corrections and housed in Unit 9 of
High Desert State Prison. App 3a. Around that time,
NDOC added COVID-19 to its medical directive on
communicable diseases, Medical Directive 231. 3-ER426 ¶2. MD 231 provided guidance to NDOC’s custody
and medical staff on proper procedures for responding
to communicable diseases. 3-ER-426 ¶2; see also 3-ER202–207.
Beginning in March 2020, as the entire world was
experiencing the onset of a global pandemic that
would cause the World Health Organization to declare
a “global health emergency” for a period of more than
three years,1 the NDOC Medical Director established
specific protocols for addressing COVID-19 in
Nevada’s prisons. 3-ER-426–427 ¶¶3, 5. NDOC
implemented these policies through the NDOC
Director. 3-ER-426 ¶¶3–4. As HDSP’s warden, Calvin
Johnson instructed HDSP staff to comply with all
protective protocols communicated by the NDOC
Northwestern Medicine, When did the Pandemic Start and
End? Covid 19 Pandemic Timeline, https://www.nm.org/
healthbeat/medical-advances/new-therapies-and-drug-trials/
covid-19-pandemic-timeline (updated Apr. 2025) (last viewed
Sept. 15, 2026).
1
7
Medical Director, including COVID-19 protocols. 3ER-421, ¶4. Those protocols imposed regulations on
testing for NDOC staff and the process for addressing
potential exposure of staff to COVID-19. 3-ER-421–
422, ¶¶7, 9.
NDOC also took additional internal measures to
avoid the potential for spread of COVID-19 within the
prison environment. Those measures included
isolation of symptomatic inmates, masking
requirements for inmates and staff, and sanitizing
common areas. 3-ER-422, ¶¶8–12.
Warden Johnson “also had an Emergency
Operation Command Center that dealt with COVID19 related incidents and was in contact with all of the
other institutions for open communication.” 3-ER-422,
¶13. NDOC established protocols for isolation and
testing of inmates that were transported from another
facility or that required transport for legal or medical
reasons. 3-ER-422, ¶¶14–15. Outside visitors,
volunteers, and contractors were also prohibited from
entering the prison “to protect the inmate population
from COVID-19.” 3-ER-422, ¶16.
2. “On March 18, 2020, Cardenas-Ornelas’s Unit—
Unit 9—was placed on quarantine because a canteen
staff member tested positive for COVID-19, and
inmate canteen workers assigned to Unit 9 had been
in close contact with them." App. 3a.
Unit 9 offenders, however, were permitted to work
in Prison Industries, with Cardenas-Ornelas working
twice per week for eight- or nine-hour shifts, enabling
those inmates to (1) leave their cells for extended
8
periods of time, and (2) continue to earn wages and
good-time credits. App. 27a–28a; 2-ER-56, ¶8; 3-ER268, 293; 4-ER-467. And “only inmates in Unit 9
worked in Prison Industries.” 2-ER-56, ¶8. But
inmates could freely mix and interact with offenders
from other units when on the prison yard. 2-ER-56,
¶8.
Work in Prison Industries also occurred in an
indoor space, which allowed staff to ensure that
offenders followed COVID-19 protocols. 2-ER-56,
¶¶9–10. And NDOC could use a fogger device to
disinfect the workspace between shifts. 2-ER-56, ¶11.
But neither of those precautions could be taken with
the prison yard. 2-ER-56, ¶¶9, 11.
Unit 9 received medical clearance on April 27,
2020. App. 27a. As a result, Unit 9 offenders were no
longer quarantined after April 27, 2020. 3-ER-423,
¶21.
3. By May 18, 2020, “three HDSP staff
members . . . tested positive for COVID-19.” 3-ER423, ¶23. The next day, an HDSP inmate tested
positive. App. 27a; 3-ER-423, ¶23. Also, some
correctional officers needed to be placed on
administrative leave due to COVID-19 exposure. 3ER-423, ¶23. To protect inmates and staff, HDSP was
put on lockdown. App 27a–28a; 3-ER-423, ¶23. During
a lockdown inmates may exercise in their cells. 3-ER423, ¶23.
Within less than ten days, three additional HDSP
inmates tested positive for COVID-19. App. 27a; 3ER-224. Each of them had come from the Clark
9
County Detention Center and were kept in isolation.
3-ER-224, 423, ¶24. Inmates at HDSP were isolated
for a minimum of twenty days to allow medical staff
to monitor for symptoms to determine if any other
offenders at HDSP contracted COVID-19. App. 27a; 3ER-224–225, 423–424, ¶24.
On June 12, 2020, Cardenas-Ornelas initiated the
grievance process by submitting an informal
grievance, which was denied. App. 28a. In the
grievance, Cardenas-Ornelas complained of a lack of
“exercise yard time” as a result of the quarantine and
lockdown. App. 28a; 3-ER-268. After denial of the
informal grievance, he filed a first-level grievance,
which went to Warden Johnson for a response. App.
28a. When responding, Warden Johnson said, “NDOC
has not placed any institution on lock-down but has
quarantined in an effort to adhere to important
Center for Disease Control and prevention
guidelines.” App. 28a. Deputy Director Wickham
confirmed the prior responses to Cardenas-Ornelas’s
grievance at the second level. App. 28a–29a.
By June 23, 2020, inmates in units without people
“suspected of contracting COVID-19 were permitted
to resume yard time.” 3-ER-424, ¶26. “Unit 9,
Cardenas-Ornelas’s unit, however, remained in
quarantine” because inmates in that unit continued
testing positive for COVID-19. 3-ER-424, ¶26.
Despite the quarantine, offenders in Unit 9 were
able to continue working in Prison Industries for
twice-weekly shifts of up to eight or nine hours, which
continued to allow those offenders to exit their cells
for an extended period of time and continue to earn
10
wages and good-time credits. App 28a; 2-ER-56, ¶8; 3ER-293; 4-ER-467. As before, this was permitted
because Unit 9 inmates would not mix with inmates
from other units when working in Prison Industries,
but yard time would create opportunities for inmates
from other units to intermingle with Unit 9 inmates.
2-ER-56–57, ¶¶8–12.
4. By at least January 13, 2021, inmates in Unit
9D group 2, where Cardenas-Ornelas was housed,
were allowed one hour per week of yard time. 4-ER480, 484. Approximately five to six weeks later, the
yard time provided was increased to three hours per
week. 4-ER-480; 4-ER-501. And by late July,
Cardenas-Ornelas was allowed five hours per week
outdoor exercise time, three hours per week of
gymnasium time, and 25 hours a week of tier time for
exercise. 4-ER-467.
II. Proceedings Below
1. In his complaint, Cardenas-Ornelas alleged
claims concerning NDOC’s response to the COVID-19
pandemic. App. 23a–24a;4-ER-577-613. The district
court screened Cardenas-Ornelas’s complaint and
allowed a claim alleging that Defendant Warden
Johnson, and other Defendants, violated the Eighth
Amendment, the Equal Protection Clause, and the
Nevada Constitution by denying yard time. App. 23a–
24a.
2. Defendants, including Warden Johnson, moved
for summary judgment. App. 24a. The district court
partially granted the motion but denied the motion
with
respect
to
Cardenas-Ornelas’s
Eighth
Amendment, Equal Protection, and state-law claims
11
against Warden Johnson challenging restrictions to
yard time. App. 49a–57a, 63a. Defendants, including
Warden Johnson, appealed. App. 2a.
3. A panel of the Ninth Circuit affirmed in part and
reversed in part. App. 15a, 21a. Although the Court
reversed on the equal protection claim and the state
law claims, it affirmed the denial of qualified
immunity under the Eighth Amendment. App 8a–21a.
It divided its analysis on qualified immunity for the
Eighth Amendment claim into two parts. App. 8a–
12a.
First, the court indicated that it would “start [its]
inquiry by considering whether, at the time of the
alleged deprivation, Cardenas-Ornelas had a clearly
established right to outdoor exercise under the Eighth
Amendment.” App 8a. The court then defined the
right at issue by relying on its own cases to conclude
that “[b]y 2020 [the Circuit’s] case law had clearly
established a prisoner’s Eighth Amendment right to
outdoor
exercise
or
otherwise
meaningful
opportunities for recreation.” App. 8a.
Second, it said “[t]he next question is whether a
reasonable jury could find that Warden Johnson
violated that clearly established right.” App. 9a. And
the court concluded that “Cardenas-Ornelas
presented sufficient evidence which, viewed in the
light most favorable to him at summary judgment,
raised triable issues on both prongs of his Eighth
Amendment claim against Warden Johnson.” App. 9a.
The Court addressed the objective prong first. App.
At 10a.–11a. To support its decision on that prong, the
12
court identified (1) evidence in the record showing
Cardenas-Ornelas “was ‘confined to [his] cell for 23 to
23 1/2 hours a day’ except when he went to work in
Prison Industries”; and (2) the absence of evidence
from Defendants showing “that recreational
opportunities had been afforded to Unit 9 in and after
June 2020, while other units were allowed to resume
yard time.” App. 9a.
The court then addressed the subjective prong,
focusing on whether Cardenas-Ornelas had shown
“that Warden Johnson had a sufficiently culpable
state of mind—namely ‘deliberate indifference.’” App.
9a. The court again identified evidence on two points,
(1) tying Warden Johnson’s subjective awareness “of
the alleged risk” to his role in responding to the “firstlevel grievance, which alleged that Cardenas-Ornelas
was ‘confined to his cell for 23 to 23 1/2 hours a day
except for when [he] got to work”; and (2) “Warden
Johnson ordered Unit 9 inmates to work even as he
denied them yard time.” App. 9a–10a.
The court then addressed and rejected Warden
Johnson’s arguments on both prongs. On the objective
prong, the court refused to recognize the potential for
Cardenas-Ornelas’s work to provide an “affirmative
program[] of training or rehabilitation,” consistent
with the court’s decision in Norbert v. City & Cnty of
San Francisco, 10 F.4th 918 (9th Cir. 2021). App. 10a–
11a. Contrasting the two cases, the court identified
opportunities for recreation time in Norbert, and the
absence of “evidence that Unit 9 inmates had any
access to meaningful opportunities for exercise
between March 18, 2020, and July 27, 2021.” App.
10a–11a. And it said evidence of Cardenas-Ornelas’s
13
work, “‘sorting cards or hangars’ in Prison Industries
did not constitute otherwise meaningful recreation,”
when viewed in the light most favorable to CardenasOrnelas, and neither “did in-cell exercise.” App. 11a.
On the subjective prong, the court rejected Warden
Johnson’s argument on the absence of evidence of
deliberate indifference “because he was merely
following, and was not required to reexamine, the
medical judgments communicated through NDOC’s
COVID-19 protocols.” App. 11a. The court (1)
generally identified “a factual dispute regarding
whether NDOC’s COVID-19 protocols required the
denial of yard time for Unit 9 inmates for over a year”;
and (2) returned to its reliance on Warden Johnson
reviewing and denying the first-level grievance. App.
11a.
Finally, despite identifying an instance within its
own cases suggesting “even when the alleged
deprivation of exercise was, objectively, sufficiently
serious, a prison official may still be entitled to
qualified immunity under the subjective prong in
extraordinary circumstances,” the Court still rejected
Warden Johnson’s qualified immunity defense. App.
11a–12a. It did so because, despite Warden Johnson’s
indication “that he restricted yard time for Unit 9
inmates
to
prevent
COVID-19—a
rational
explanation,” a factual dispute remained as a result of
“conflicting evidence which shows that Warden
Johnson ordered Unit 9 to work despite the risk of
COVID-19.” App. 11a–12a. This, the Court suggested,
meant Warden Johnson’s COVID-19 “justification
does not rule out deliberate indifference.” App. 11a–
12a.
14
REASONS FOR GRANTING THE PETITION
I.
The Ninth Circuit’s Opinion Inverts the
Test for Qualified Immunity, Leading to
Misapplication of the Clearly Established
Law Requirement.
The test for applying qualified immunity has two
parts. The first is a threshold question of whether “the
facts alleged show that the officer’s conduct violated a
constitutional right.” Saucier, 533 U.S. at 201. If there
is no violation, there is no need to proceed further. Id.
“[T]he next, sequential step is to ask whether the right
was clearly established.” Id. Consideration of this step
“must be undertaken in light of the specific context of
the case, not as a broad general proposition.” Id.
True, this Court backed away from the mandate it
imposed in Saucier that a reviewing Court must first
analyze the threshold question of whether there is a
violation before reaching the “clearly established”
question. Pearson v. Callahan, 555 U.S. 223 (2009). In
doing so, this Court recognized that “there will be
cases in which a court will rather quickly and easily
decide that there was no violation of clearly
established law before turning to the more difficult
question whether the relevant facts make out a
constitutional question at all.” Id. at 239. And it
seemed to do so in recognition that a court could skip
straight to considering the clearly established law
requirement when the court intended to grant
qualified immunity because, regardless of whether
the plaintiff adequately presents a violation, the
qualified immunity defense must prevail due to the
15
absence of relevant clearly established law. Id. at
239–42.
But this Court continues to insist that the clearly
established law prong be considered based on the
specific circumstances of the case. Zorn, 697 U.S. at
572–74. Warden Johnson is aware of no case where
this Court has countenanced flipping the inquiry in a
way that results in a court considering the clearly
established law prong in the abstract before engaging
in a particularized inquiry of the case’s facts only
when deciding whether the case presents a viable
constitutional violation.
Yet that is what the Ninth Circuit did in this case.
It inverted the inquiry, considering whether its case
law clearly established the relevant right before it
later engaged in a particularized inquiry about the
facts of the case to determine only whether the
evidentiary record was sufficient to support the denial
of summary judgment on the merits of the underlying
constitutional claim. App. 8a–12a.
By doing so, the Ninth Circuit only considered
whether, as a general matter, its case law clearly
establishes a right to outdoor exercise under the
Eighth Amendment. App. 8a–9a. It did not ask
whether “any reasonable official in [Warden
Johnson’s] shoes would have understood he was
violating” a clearly established right because “existing
precedent . . . placed the statutory or constitutional
question beyond debate.” Sheehan, 575 U.S. at 611
(internal quotation marks omitted and ellipses in
original). And it did not, as this Court indicated is
16
necessary in Zorn, assess whether Warden Johnson
could read the cases the court cited in its opinion and
have known that there was no debating that the
decision to quarantine inmates and deny them yard
time in the midst of a global pandemic violated the
Eighth Amendment. Id.
Had the Ninth Circuit engaged in the inquiry this
Court’s opinions mandate, the result would have been
different.2 When considering Cardenas-Ornelas’s
Eighth Amendment claim on its facts with relevant
Ninth Circuit case law, the law was not so clearly
established as to put the issue “beyond debate.” Id.
II.
The Ninth Circuit’s Flawed Analysis Led
to the Wrong Result.
The Ninth Circuit’s opinion improperly lowers the
bar for Cardenas-Ornelas to overcome Warden
Johnson’s entitlement to qualified immunity, despite
this Court’s continuous reminders on where to set that
bar. The bar is “demanding” and “protects ‘all but the
2 This Court could issue an opinion that ends its analysis at this
point to explain that, although Pearson allows courts to take the
prongs of qualified immunity out of order, the lower court must
(as the Ninth Circuit failed to do here) be careful to ensure that
its initial analysis on clearly established law considers the particular circumstances of the case before it. The Court could then
remand to have the Ninth Circuit conduct the appropriate analysis in the first instance. But as is explained below, the Ninth
Circuit’s caselaw plainly supports an award of qualified immunity here. For that reason, this Court can, and should, summarily
reverse and remand with instructions for the entry of judgment
for Warden Johnson on the underlying Eighth Amendment
claim.
17
plainly incompetent or those who knowingly violate
the law.’” District of Columbia v. Wesby, 583 U.S. 48,
63 (2018). It applies if a court is unable to “identify a
case where an officer taking similar actions in similar
circumstances was held to have violated the
Constitution.” Zorn, 607 U.S. at 574 (internal
quotation marks omitted). Under the relevant,
“demanding” standard, consideration of the Ninth
Circuit’s Eighth Amendment jurisprudence exposes
flaws in the Ninth Circuit’s reasoning that
undermines the denial of qualified immunity.
As with the Second Circuit’s opinion in Zorn, the
Ninth Circuit’s opinion here “contravene[s]” this
Court’s demanding standard for determining when
the law is clearly established. Zorn, 607 U.S. at 572.
The Ninth Circuit broadly defined the right at issue
as an “Eighth Amendment right to outdoor exercise or
otherwise meaningful recreation.” App. 8a–9a. Yet it
engaged in no detailed factual comparison of Warden
Johnson’s alleged conduct to the cases it cited to
determine whether Warden Johnson, along with
every other reasonable official in his same position,
could have “read” the cases and known that it was
“beyond debate” that he was violating the Eighth
Amendment by responding to the COVID-19
pandemic such as he did. Zorn, 607 U.S. at 572. The
only factual comparison it made was to recognize that
one of the cases it relied upon presented “more severe
facts.” App. 8a–9a.
Had the panel conducted a more detailed inquiry,
it would have found that none of the cases it relied
upon present circumstances with the “high degree of
specificity” this Court’s standard requires. Zorn, 607
18
U.S. at 572 (quoting Wesby, 583 U.S. at 63). First, the
panel merely identified the right as a general legal
principle. App. 8a–9a. It did not assess whether those
cases clearly establish that right in the context of a
prison warden balancing issues of prison safety in the
midst of a global pandemic that threatened the health
and safety of inmates and prison staff. App. 8a–9a.
But to make matters worse, when addressing the
clearly established law question, the Ninth Circuit
failed to grapple with its own cases (discussed below)
that recognize limits on the general principle the court
identified as categorically clearly established.
True, the Ninth Circuit has noted that the denial
of outdoor exercise may violate the Eighth
Amendment. App. 8a–9a. But it has also recognized
(1) it has never held that depriving inmates of outdoor
exercise results in a per se violation of the Eighth
Amendment, and (2) there are limits to any
constitutional mandate to give inmates time for
outdoor exercise, including
during genuine
emergencies. Norbert, 10 F.4th at 929; Norwood v.
Vance, 591 F.3d 1062, 1068-70 (9th Cir. 2015).
Yet none of the cases the panel cited involved an
emergency of any kind, much less a health emergency
in the nature of the COVID-19 pandemic, such that
those cases would have put Warden Johnson on notice
that quarantining inmates violated the Eighth
Amendment. Instead, each of the cases cited do not
involve an emergency, and some of them provide
contradictory principles that any reasonable
corrections official in Warden Johnson’s shoes could
read as permitting restrictions on yard time.
19
In LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th
Cir. 1993), the Ninth Circuit held that the inmate had
“not established an Eighth Amendment violation,” for
an inmate that “had been deprived of outside exercise
for most of a five-year period of incarceration” as a
sanction for the inmate’s misconduct. When reviewing
that decision in another case, the Ninth Circuit noted
the court’s reliance on the point that the inmate in
LeMaire “‘still [could] exercise within his cell,’”
including ‘low and non-impact aerobic exercise,’”
which “is thus consistent with how we approached
this issue in” other cases. Norbert, 10 F.4th at 931.
Thus, LeMaire is far from the sort of case needed
to support a denial of qualified immunity. Zorn, 607
U.S. at 574. It supports the proposition that unique,
extraordinary circumstances can support restrictions
on outdoor exercise for extended periods of time, even
for periods extending multiple years, and
opportunities for an inmate to exercise within their
cell may be a sufficient substitute when allowing that
inmate access to the prison yard poses a safety risk for
other inmates and staff. LeMaire, 12 F.3d at 1458. But
the Ninth Circuit never considered those parts of
LeMaire when considering what was clearly
established “in light of the specific context of this
case.” Saucier, 533 U.S. at 201.
Second, Shorter v. Baca, 895 F.3d 1176, 1186 (9th
Cir. 2018), focused on “logistical problems, such as
inadequate staffing and limited recreational facilities,
[which] may make it difficult for jail officials to
provide adequate exercise to detainees.” But the court
suggested that when logistical problems combine with
other factors, the result may be different. Shorter, 895
20
F.3d at 1186. This case certainly presented challenges
on logistics, staffing, and limitations with facilities,
but this case is of a different quality because it
involves Warden Johnson’s response to a genuine
medical emergency in the form of the COVID-19
pandemic. Moreover, in Shorter, the Ninth Circuit
acknowledged that the Fourteenth Amendment
standard applied to pretrial detainees, is “more
protective” than “the Eighth Amendment prohibition
against cruel and unusual punishment.” Id. at 1183
(internal quotation marks omitted). Upon reading
Shorter, Warden Johnson could not have known that
restricting outdoor exercise during the genuine
emergency presented by COVID-19 might violate the
less protective Eighth Amendment prohibition
against cruel and unusual punishment.
Third, Thomas v. Ponder, 611 F.3d 1144 (9th Cir.
2010), also involved no emergency. It involved a
“modified program,” applied to all maximum security
inmates who would not sign a pledge of nonviolence,
where the inmate was “deprived of all out-of-cell
exercise, fed in [his] cell[], subjected to strip searches,
and, on the rare occasions that [he was] permitted to
leave [his] cell[], [he was] escorted in restraints” for a
period of “13 months and 25 days.” Id. at 1147-48. In
contrast, this case undisputably involved Warden
Johnson’s response to the global COVID-19 pandemic,
not the multitude of factors at issue in Thomas.
Because the specific factual circumstances in Thomas
were not similar to those faced by Warden Johnson,
he could not have read Thomas and known that
restricting outdoor exercise based on COVID-19
violated the Eighth Amendment.
21
Finally, the court cited Spain v. Procunier, 600
F.2d 189 (9th Cir. 1979), which it expressly
acknowledged involved “more severe facts” with
segregation of inmates for over four years. App. 9a
(emphasis added). Like LeMaire, Shorter and
Thomas, inmates in Spain were not deprived of
outdoor exercise in response to an emergency that
posed a threat to the health and safety of the inmate
population. 600 F.2d at 192.
Although, the Ninth Circuit has characterized
Spain as the “foremost circuit precedent” on the right
to exercise, the court also recognized that Spain “did
not . . . ‘decide whether the deprivation of outdoor
exercise is a per se violation of the Eighth
Amendment.’” Norbert, 10 F.4th at 929 (quoting
Spain, 600 F.2d at 199). In Norbert, the court
determined that “‘several factors combined to make
outdoor exercise a necessity’” in Spain. See Norbert,
10 F.4th at 929 (quoting Spain, 600 F.2d at 199). But
the Ninth Circuit conducted no analysis here to
consider whether such factors are present—they are
not—before concluding that Spain clearly established
the law with respect to the unique, extraordinary
subject of this case: responding to the COVID-19
pandemic.
So the cases the Ninth Circuit relied upon do not
provide adequate factual comparators with “the high
degree of specificity” this Court’s decisions demand.
Zorn, 607 U.S. at 572, 574. They do not address the
unique circumstances Warden Johnson faced in
addressing the COVID-19 pandemic.
22
Considering other Ninth Circuit authorities not
addressed in the Ninth Circuit’s analysis of what its
law clearly establishes further undermines the Ninth
Circuit’s conclusion that Cardenas-Ornelas can avoid
an award of summary judgment for Warden Johnson
based on qualified immunity. First, in Norwood, the
Ninth Circuit held that prison officials could not be
held liable for denying outdoor exercise when those
officials
exercised
reasonable
judgment
in
determining that “allowing outdoor exercise”
presented a “greater risk of harm” when the officials
instituted lockdowns to “keep inmates safe” from “a
genuine emergency.” 591 F.3d at 1068–70. The Ninth
Circuit reasoned that ‘[o]fficials must balance th[e]
imperative [to keep inmates safe] against other
obligations that our laws impose, such as providing
outdoor exercise.” Id. at 1069.
The court expressly counseled that when “a
lockdown was in response to a genuine emergency,
and restrictions were eased as the prison
administration determined that the emergency
permitted, we may not lightly second-guess officials’
expert judgments about when exercise and other
programs could safely be restored.” 591 F.3d at 1069.
The Ninth Circuit did so despite prison officials
imposing different restrictions against different
inmate populations within the same institution based
on particularized evaluations of safety threats to
different groups of inmates. Id. at 1065. And the
Ninth Circuit opined that even if “prison officials . . .
err[ed] on the side of caution by maintaining
lockdowns for longer than necessary,” “when it comes
23
to matters of life and death, erring on the side of
caution is a virtue.” Id.
Second, in Norbert, the Ninth Circuit recognized
that its caselaw does not demand opportunities for
outdoor exercise and rejected a claim asserting a right
to direct sunlight. 10 F.4th at 928–37. There, the
Court recognized that in some cases the court had
recognized a right to outdoor exercise based on specific
facts of those cases. Id. at 929. But it rejected the
proposition that the Constitution demands, as a
categorical matter, access to opportunities for outdoor
exercise. Id.
And although Norbert focused on the possibilities
for indoor exercise presented in that case, it does not
address in detail the limits of when opportunities for
other indoor activities that allow inmates to exit their
cells for extensive periods of time will not constitute
“meaningful recreation” that satisfies the Eighth
Amendment. 10 F.4th at 928–32. Instead, it
recognized that the cases requiring access to outdoor
exercise uniquely involved situations with inmates in
segregation that had very limited, if any,
opportunities to engage in any activity outside their
cells. Id. Those cases are different from this case,
where Cardenas-Ornelas admits that he was out of his
cell twice a week for a total of at least 16 hours. 3-ER293.
No case the Ninth Circuit cited holds that
providing inmates with opportunities to work, rather
than giving them yard time violates the Eighth
Amendment. And even if one did, it would not have
done so in the context of a global pandemic with
24
further consideration of the advantages that working
in Prison Industries provided over yard time by still
giving inmates who may have been exposed to
COVID-19 meaningful time outside their cells in an
environment that (1) prevented mixing inmates from
different housing units, and (2) provided for
disinfection of the workplace between work shifts. 2ER-56–57, ¶¶9–12
These cases undermine the Ninth Circuit’s ruling
on what was clearly established as of 2020. Norwood
recognizes the need for prison officials to balance
availability of outdoor exercise against potential
danger to the prison population resulting from a
genuine emergency. 591 F.3d at 1068–70. And there
is no debate here that COVID-19 caused a genuine
emergency; even the panel recognized that restricting
yard time was “rational” but then only considered that
within the context of its merits analysis, not its
analysis on what the law clearly established. App.
12a.
Meanwhile Norbert, rejects the idea that Ninth
Circuit case law establishes a categorical requirement
for outdoor exercise. Id. at 929. And its discussion of
relevant Ninth Circuit cases exposes the absence of
precedent clearly defining the contours of the Eighth
Amendment in a way that would clearly establish that
a deprivation of outdoor exercise violates the Cruel
and Unusual Punishment Clause when an inmate is
otherwise able to work outside his cell at least twice a
week for eight hours at a time.
By considering general standards on whether
there is a clearly established right before considering
25
the specifics of the case, the panel did not conduct the
particularized inquiry this Court’s cases demand.
App. 8a– 2a. Said in the words of Zorn, the Ninth
Circuit identified no case that Warden Johnson could
have “read” at any time between March 2020 and July
2021 and, as a result of reading that case, “known”
that the denial of yard time as a protective measure
implemented in response to the COVID-19
pandemic—a genuine public health emergency—
violated the Cruel and Unusual Punishment Clause of
the Eighth Amendment. Zorn, 607 U.S. at 572.
III.
The Ninth Circuit’s Merits Analysis is
Wrong Under Farmer.
Setting aside the Ninth Circuit’s error in defining
the clearly established law, it also got the underlying
merits analysis wrong. The record here lacks
evidentiary support for the Ninth Circuit’s conclusion
that Cardenas-Ornelas’s Eighth Amendment claim
should go to trial. The Ninth Circuit improperly
assumed that Cardenas-Ornelas could prove the
elements of his claim without pointing to evidence
necessary for him to succeed at trial.
To show an Eighth Amendment violation under
Farmer, an inmate must first “objectively” establish
that he was “incarcerated under conditions posing a
substantial risk of serious harm.” 511 U.S. at 834.
Second, the inmate must establish that the official
had a “sufficiently culpable state of mind”: “deliberate
indifference.” Id. at 834.
Although this Court’s “cases recognize that
subjecting individuals to a risk of future harm—not
26
simply actually inflicting pain—can qualify as cruel
and unusual punishment.” Baze v. Rees, 553 U.S. 35,
49 (2008). “To establish that such exposure violates
the Eighth Amendment . . . the conditions presenting
the risk must be sure or very likely to cause serious
illness and needless suffering and give rise to
sufficiently imminent dangers.” Id. at 49–50 (internal
quotation marks and emphasis in original omitted).
There must be “an ‘objectively intolerable risk of
harm.’” Id. at 50 (quoting Farmer, 511 U.S. at 846).
Under the “subjective” prong, “deliberate
indifference” can only be established if the “prison
official . . . knows of and disregards an excessive risk
to inmate health and safety.” Farmer, 511 U.S. at 837.
“[D]eliberate indifference entails something more
than mere negligence.” Id. at 835. 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
837. A prison “official’s failure to alleviate a
significant risk that he should have perceived but did
not” does not establish deliberate indifference. Id. at
838.
The Ninth Circuit’s opinion conflicts with the
forgoing standard. The court just assumed that
Cardenas-Ornelas suffered harm based on a lack of
outdoor exercise. App. 9a. It identified no record
evidence Cardenas-Ornelas produced that supports a
triable issue of fact on the “objective” standard for
harm. Farmer, 511 U.S. at 834.
Similarly, the court speculated that Warden
Johnson knew that the lack of outdoor exercise posed
27
an “objectively intolerable risk of harm” to CardenasOrnelas under Farmer. App. at 9a–10a. The panel
mistakenly relied on Warden Johnson’s review of
Cardenas-Ornelas’s grievances to establish that
Warden Johnson possessed the requisite state of
mind. See App. 9a–10a.
Even though Cardenas-Ornelas submitted
grievances concerning a lack of outdoor exercise, he
never asserted that he suffered any adverse effects.
App. 4a–5a; see also 3-ER-268–270, 276-278, 287–289
301-02, 312, 314, 316. More importantly, the Ninth
Circuit identified no evidence showing that Warden
Johnson had reason to suspect that Cardenas-Ornelas
suffered any adverse effects from a lack of outdoor
exercise, especially when working in Prison
Industries
provided
Cardenas-Ornelas
with
consistent time outside of his cell in an environment
that, unlike the prison yard, limited the potential for
spread of COVID-19 by (1) preventing comingling of
inmates in different housing units, and (2) providing
for disinfection of the workplace between shifts. App.
9a–12a; 2-ER-56–57, ¶¶9–12
And even if Cardenas-Ornelas had grieved the lack
of outdoor exercise actually caused depression, muscle
loss, or joint pain, his claim still fails. He produced no
objective medical evidence showing that the lack of
outdoor exercise caused any of those supposed
ailments, much less that Warden Johnson actually
knew that the lack of outdoor exercise would cause
such harm. Cf. Peralta v. Dillard, 744 F.3d 1076, 1087
(9th Cir. 2014) (holding an inmate’s complaint
alleging a serious medical need could not provide the
awareness
required
to
establish
deliberate
28
indifference because such “complaints often allege
numerous violations, many of which turn out not be
supported by the evidence”).
Again, in Norwood, the Ninth Circuit held that
prison officials could not be held liable based upon a
denial of outdoor exercise because those officials
exercised reasonable judgment in determining
outdoor exercise created “a greater risk of harm” to
inmates resulting from a “genuine emergency.” 591
F.3d at 1065, 1068-70. Just as in Norwood, Warden
Johnson had to make judgment calls on risks to
inmate safety based on the potential for exposure to
COVID-19.
On this record, Cardenas-Ornelas fails to show
that Warden Johnson’s conduct caused CardenasOrnelas objective harm that rises to the level of an
Eighth Amendment violation. And he fails to show
that Warden Johnson denied outdoor exercise with a
state of mind that constituted deliberate indifference,
especially when considering that Warden Johnson
was dealing with COVID-19, a genuine medical
emergency.
IV.
A Conflict Between the Ninth Circuit’s
Opinions
on
Claims
Challenging
Corrections Officials’ Responses to
COVID-19 Further Supports Granting
Review.
Should this Court need further convincing that
this is a good case for it to step in and correct the
Ninth Circuit’s troubling denial of qualified
immunity, there is more. The Ninth Circuit has issued
29
contradictory rulings on challenges to corrections
officials’ responses to COVID-19. These contradictory
rulings put corrections officials who are still
responding to COVID-19 litigation in the Ninth
Circuit in an impossible situation.
In Hampton, 83 F.4th at 770, the Ninth Circuit
denied a qualified immunity defense while holding
that its case law clearly establishes that involuntary
mixing of inmates when an inmate is even suspected
of contracting COVID-19 violated the Eighth
Amendment. But here, the Ninth Circuit held that its
case law clearly establishes a right to outdoor exercise
under the Eighth Amendment, despite the record
indicating that restrictions were imposed to avoid
potential mixing of inmates from different housing
units to avoid potential for spread of COVID-19 within
the prison population. App. 8a–9a; 2-ER-56–57, ¶¶812.
This conflict puts Warden Johnson and reasonable
corrections officials like him in an untenable position.
The Ninth Circuit has said Warden Johnson would
violate a clearly established right under the Eighth
Amendment by allowing offenders to mix when one of
those inmates is suspected of having COVID-19. But
it has also said that denying outdoor exercise to avoid
mixing of inmates to avoid the spread of COVID-19
violates a clearly established right under Eighth
Amendment. That puts correctional officials in a nowin situation when facing the heavy burden of
ensuring the safety of the inmates in their custody
during a once-in-a-lifetime health emergency like the
COVID-19 pandemic. Those are precisely the sorts of
things qualified immunity is intended to avoid.
30
Pearson, 555 U.S. at 231; see also Mitchell v.
Forsyth¸472 U.S. 511, 526 (1985) (addressing
qualified immunity’s purpose of avoiding “the general
costs of subjecting officials to the risks of trial—
distractions of officials from their governmental
duties, inhibition of discretionary action, and
deterrence of able people from public service”)
(internal quotation marks omitted).
This irreconcilable conflict is firmly entrenched.
The Ninth Circuit continues to apply Hampton and
Cardenas-Ornelas as binding precedent. McGuire, at
2026 WL 1330543 (applying Cardenas-Ornelas);
Maney, 2025 WL 1794110 (applying Hampton).
Although this Court might ordinarily leave the Ninth
Circuit to sort out its own internal conflict, this
Court’s recognition that qualified immunity will be
effectively lost for Warden Johnson with the denial of
summary judgment provides sound reasoning for this
Court to step in now. Saucier, 533 U.S. at 201.
Moreover, proper application of qualified immunity to
the truly unique circumstances corrections officials
found themselves in during the COVID-19 pandemic
(having to balance many different interests to protect
the physical and mental wellbeing of the inmates in
their custody and the staff under their supervision)
creates an easy path to untangling that conflict. And
it does so whilst reinforcing this Court’s recognition
that it is not the business of federal courts to secondguess “judgment calls” made by prison officials. See
Bell v. Wolfish, 441 U.S. 520, 562 (1979).
*
*
*
31
CONCLUSION
This Court should grant the petition and reverse.
Respectfully submitted,
AARON D. FORD
Attorney General of Nevada
HEIDI PARRY STERN
Solicitor General
JEFFREY MORGAN CONNER
Chief Deputy Solicitor General
Counsel of Record
CHRIS DAVIS
Senior Deputy Attorney
General
STATE OF NEVADA
OFFICE OF THE ATTORNEY
GENERAL
100 North Carson Street
Carson City, NV 89701
(775) 684-1100
jconner@ag.nv.gov
Counsel for Petitioner
September 18, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JANUARY 29,
2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, FILED JANUARY
29, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF NEV ADA, FILED SEPTEMBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22a
APPENDIX D — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED APRIL 22, 2026 . . . . 64a
APPENDIX E — RELEVANT CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 66a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JANUARY 29, 2026
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-6755
D.C. No. 2:21-cv-00030-ART-MDC
LUIS CARDENAS-ORNELAS,
Plaintiff-Appellee,
v.
CALVIN JOHNSON; HAROLD WICKHAM;
CHARLES DANIELS; GARY PICCININI;
TIMOTHY STRUCK; ROBERT OWENS; JESSIE
BRIGHTWELL; MANUEL PORTILLO;
TIMOTHY JOHNSON,
Defendants-Appellants,
and
J. ALCOCK, JULIO CALDERIN,
Defendants.
Filed January 29, 2026
OPINION
2a
Appendix A
Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding
Argued and Submitted October 9, 2025
Las Vegas, Nevada
Before: Mark J. Bennett, Gabriel P. Sanchez,
and Holly A. Thomas, Circuit Judges.
BENNETT, Circuit Judge:
Luis Cardenas-Ornelas, a prisoner in the custody of
the Nevada Department of Corrections (“NDOC”), brought
this action pursuant to 42 U.S.C. § 1983, alleging that staff
at High Desert State Prison (“HDSP”) denied him outdoor
exercise in violation of the Eighth Amendment and treated
him and his unit differently from others in violation of the
Fourteenth Amendment. Cardenas-Ornelas also brought
analogous claims under the Nevada Constitution. The
district court denied summary judgment on certain of
these claims against Warden Calvin Johnson, and Warden
Johnson appealed.1 We affirm in part, reverse in part,
and remand. 2
1. The Notice of Appeal was filed by all Defendants. The
opening brief makes clear, however, that the only Appellant is
Warden Calvin Johnson.
2. In this opinion, we review the district court’s denial
of Warden Johnson’s assertion of qualified immunity. In a
concurrently filed memorandum disposition, we address Warden
Johnson’s remaining arguments. In that disposition, we affirm in
part and reverse in part.
3a
Appendix A
I.
The focus of this appeal is Cardenas-Ornelas’s claim
that, during the COVID-19 pandemic, HDSP staff denied
him outdoor exercise—despite ordering him to work and
permitting yard time for inmates in other units. In early
2020, Cardenas-Ornelas was housed at HDSP and assigned
to Unit 9, a protective segregation unit. HDSP allowed
Unit 9 inmates to work in Prison Industries, where only
Unit 9 inmates worked. By working in Prison Industries,
eligible inmates could “earn wages and good time credits.”
Defendants assert that, during the COVID-19 pandemic,
it was possible to carry out social distancing and contact
tracing in the enclosed Prison Industries warehouse, but
not in the outdoor yard, where inmates from different
units mixed freely. Defendants also contend that they
disinfected the bays where inmates in Prison Industries
worked. But Cardenas-Ornelas claims that he and many
other inmates worked in very close quarters.
A.
In March 2020, Unit 9 was placed on quarantine after
a canteen staff member who had been in close contact with
Unit 9 inmates tested positive for COVID-19. After that
quarantine ended in April 2020, Unit 9 was sent back to
work in Prison Industries. Unit 9, however, continued to
be denied yard time.
In May 2020, after an inmate tested positive for
COVID-19, HDSP locked down. Defendants contend that
“inmates could still exercise in their cell.” After more
4a
Appendix A
inmates tested positive, all were isolated for several
weeks. While Unit 9 remained in quarantine without yard
time, other units regained yard time.
In December 2020, after some Unit 9 inmates tested
positive, Unit 9 was again placed on quarantine but,
on several days, was still ordered to work at Prison
Industries. Cardenas-Ornelas claims that this was despite
HDSP staff’s awareness that forty-eight Unit 9 inmates
had just tested positive for COVID-19 and that other Unit
9 inmates were exhibiting symptoms.
Cardenas-Ornelas alleges that between March 2020
and July 2021, he was denied almost all outdoor exercise,
and that this caused him anxiety, depression, muscle loss,
and joint pain.
B.
In June 2020, Cardenas-Ornelas filed an informal
grievance alleging the denial of his constitutional rights
to exercise and yard time. Sergeant Timothy Struck
denied the informal grievance because the lockdowns were
needed to protect “the health and safety of all inmates.”
In August 2020, Cardenas-Ornelas filed a first-level
grievance alleging that he was “confined to [his] cell for
23 to 23 1/2 hours a day except for when [he went] to work
which [was] for 8 to 9 hours in a crowded warehouse with
about 130 other inmates.” Warden Johnson denied the
grievance, explaining that “NDOC has not placed any
institution on lock-down but has quarantined in an effort
to adhere to important Center[s] for Disease Control
5a
Appendix A
and prevention guidelines.” Addressing CardenasOrnelas’s working conditions, Warden Johnson noted
that “[a]fter receiving medical clearance, Unit 9 inmate
workers received authorization to return to work as early
as April 27, 2020,” and that safety measures were in
place to prevent COVID-19 spread in Prison Industries.
Addressing the continued denial of yard time, Warden
Johnson explained that “[t]he operations of inmates
classified to Administrative and Disciplinary segregation
continued as normal as possible because they [we]re
equipped with the resources needed (rec. cages, locked
showers, phone access),” implying that HDSP lacked the
resources to provide protective segregation inmates with
yard time. Cardenas-Ornelas then filed a second-level
grievance, which was denied by Harold Wickham, Deputy
Director of Programs for NDOC.
C.
In January 2021, Cardenas-Ornelas filed a pro se
complaint under 42 U.S.C. § 1983 and Nevada state law
against various HDSP officials, seeking declaratory and
injunctive relief and monetary damages. The district court
screened the complaint and allowed Cardenas-Ornelas
to proceed on several claims, including claims alleging
that Defendants’ denial of outdoor exercise violated
prohibitions against cruel and unusual punishment under
the Eighth Amendment, guarantees of equal protection
under the Fourteenth Amendment, and analogous
protections under the Nevada Constitution. 3
3. The other claims that survived screening were: (1)
an Eighth Amendment claim based on an alleged policy that
required officers to come to work after they reported contact with
6a
Appendix A
In October 2023, Defendants moved for summary
judgment. As relevant here, the district court denied
Warden Johnson summary judgment on CardenasOrnelas’s outdoor-exercise claims alleging cruel and
unusual punishment and equal protection violations. 4
In so doing, the district court denied Warden Johnson’s
assertion of qualified immunity on those claims. Warden
Johnson timely appealed.
II.
Cardenas-Ornelas contends that we lack jurisdiction
over this interlocutory appeal. But because the district
court rejected Warden Johnson’s assertion of qualified
immunity, we have jurisdiction under the collateral order
doctrine. See Johnson v. Myers, 129 F.4th 1189, 1193 (9th
Cir. 2025). Our jurisdiction, however, “does not extend to
claims in which the determination of qualified immunity
depends on disputed issues of material fact.” Jeffers v.
Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per curiam).
Thus, in reviewing the district court’s denial of qualified
immunity, we “assum[e] that the version of the material
facts asserted by the non-moving party is correct.” Id.
COVID-19 infected people, (2) a First Amendment claim alleging
interference with mail, (3) federal and state free speech claims
based on the alleged extended prohibition of all phone calls, and
(4) federal and state equal protection claims based on the alleged
denial of all phone calls.
4. On these two claims, the district court granted summary
judgment to all Defendants other than Warden Johnson based on
their lack of personal participation in the alleged violations. On
all other claims, the district court granted summary judgment
for Defendants.
7a
Appendix A
We review de novo a district court’s grant or denial
of summary judgment, “including officers’ entitlement to
qualified immunity.” Jones v. City of North Las Vegas, 150
F.4th 1030, 1035 (9th Cir. 2025).
III.
Warden Johnson argues that he is entitled to qualified
immunity on the Eighth Amendment and Fourteenth
Amendment claims. We affirm the district court’s denial
of qualified immunity on the Eighth Amendment claim but
reverse the district court’s denial of qualified immunity
on the Fourteenth Amendment claim.
Qualified immunity shields government officials
performing discretionary functions “from liability for
civil damages” when “their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982). A right is clearly established only when “[t]he
contours of the right [are] sufficiently clear [such] that
a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We
therefore must decide “whether ‘the officer’s conduct
violated a constitutional right’ and whether ‘the right was
clearly established’ at the time of the alleged misconduct.”
Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011) (quoting
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001), overruled in part on other grounds
by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172
8a
Appendix A
L.Ed.2d 565 (2009)). Our inquiry may proceed in any
order. Id.
A.
On the Eighth Amendment claim, the district court
properly denied Warden Johnson qualified immunity. To
violate the Eighth Amendment, the prison official’s alleged
deprivation “must be, objectively, ‘sufficiently serious,’”
and the “prison official must have a ‘sufficiently culpable
state of mind.’” Farmer v. Brennan, 511 U.S. 825, 834,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Wilson v.
Seiter, 501 U.S. 294, 297–98, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991)). “Some conditions of confinement may establish
an Eighth Amendment violation ‘in combination’ when
each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise . . . .” Wilson, 501 U.S. at 304, 111 S.Ct. 2321
(quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981)).
We start our inquiry by considering whether, at the
time of the alleged deprivation, Cardenas-Ornelas had a
clearly established right to outdoor exercise under the
Eighth Amendment. By 2020, our case law had clearly
established a prisoner’s Eighth Amendment right to
outdoor exercise or otherwise meaningful opportunities
for recreation. See Shorter v. Baca, 895 F.3d 1176,
1185–86 (9th Cir. 2018) (collecting cases). “Our case law
uniformly stresse[d] the vital importance of exercise for
prisoners.” Thomas v. Ponder, 611 F.3d 1144, 1152 (9th
9a
Appendix A
Cir. 2010). We had said that exercise is “one of the basic
human necessities protected by the Eighth Amendment.”
LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). And
though on more severe facts, we had held specifically that
prisoners were unconstitutionally denied outdoor exercise
when they were confined in small cells around the clock
for more than four years. Spain v. Procunier, 600 F.2d
189, 199–200 (9th Cir. 1979). We therefore hold that, at the
time of the alleged deprivation, Cardenas-Ornelas had a
clearly established right to outdoor exercise or meaningful
opportunities for recreation.
The next question is whether a reasonable jury could
find that Warden Johnson violated that clearly established
right. We hold that Cardenas-Ornelas presented sufficient
evidence which, viewed in the light most favorable to him at
summary judgment, raised triable issues on both prongs
of his Eighth Amendment claim against Warden Johnson.
On the objective prong, evidence supported CardenasOrnelas’s claim that he was “confined to [his] cell for 23
to 23 1/2 hours a day” except for when he went to work
in Prison Industries. And Defendants failed to introduce
evidence that recreational opportunities had been afforded
to Unit 9 in and after June 2020, while other units were
allowed to resume yard time. On the subjective prong,
Cardenas-Ornelas introduced evidence supporting his
claim that Warden Johnson had a sufficiently culpable
state of mind—namely, “deliberate indifference.” Hallett
v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (quoting
Wilson, 501 U.S. at 297, 111 S.Ct. 2321). “A prison official
acts with ‘deliberate indifference only if the prison official
knows of and disregards an excessive risk to inmate health
10a
Appendix A
and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004) (alterations accepted) (quoting Gibson v. County
of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled in
part on other grounds by Castro v. County of Los Angeles,
833 F.3d 1060 (9th Cir. 2016) (en banc)). Here, evidence
supported the claim that Warden Johnson was subjectively
aware of the alleged risk because Warden Johnson
responded to Cardenas-Ornelas’s first-level grievance,
which alleged that Cardenas-Ornelas was being “confined
to [his] cell for 23 to 23 1/2 hours a day except for when
[he] got to work.”5 Moreover, Warden Johnson ordered
Unit 9 inmates to work even as he denied them yard time.
Addressing the objective prong, Warden Johnson
asserts that “walking from Unit 9 to the Prison Industries
Warehouse” and “work[ing] for eight hours a day, two days
a week” constituted “otherwise meaningful recreation”
for Cardenas-Ornelas because Prison Industries provided
“affirmative programs of training or rehabilitation.” This
argument relies mainly on Norbert v. City & County of
San Francisco, 10 F.4th 918 (9th Cir. 2021). In Norbert,
we affirmed the district court’s finding that “inmates were
given constitutionally sufficient recreation time” when
inmates were “offered at least 30 minutes of exercise time
in the [indoor] gyms seven days a week,” and “general
population inmates c[ould] access the day room for 4.5
5. For this reason, Warden Johnson’s argument that he was
not personally involved in any constitutional violation lacks merit.
“[T]his is not a case where the defendants claim that they were
unaware of either the circumstances resulting in the alleged
deprivation or the likelihood that the deprivation would occur.”
Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994).
11a
Appendix A
hours on weekdays and 8 hours on weekend days.” Id.
at 933. Here, by contrast, there is no evidence that Unit
9 inmates had any access to meaningful opportunities
for exercise between March 18, 2020, and July 27, 2021.
Viewed in the light most favorable to Cardenas-Ornelas,
“sorting cards or hangers” in Prison Industries did
not constitute otherwise meaningful recreation. Nor
did in-cell exercise. Thus, there is a genuine factual
dispute whether the alleged deprivation of exercise was,
objectively, sufficiently serious.
Addressing the subjective prong, Warden Johnson
argues that he cannot be found to have been deliberately
indifferent because he was merely following, and was
not required to reexamine, the medical judgments
communicated through NDOC’s COVID-19 protocols.
But there is a factual dispute regarding whether NDOC’s
COVID-19 protocols required the denial of yard time for
Unit 9 inmates for over a year. Moreover, Warden Johnson
personally reviewed and denied Cardenas-Ornelas’s firstlevel grievance, which alleged that Cardenas-Ornelas was
being confined in his cell “for 23 to 23 1/2 hours a day”
except for when he was called to work in Prison Industries.
Thus, Warden Johnson failed to show at the summary
judgment stage that he is entitled to qualified immunity
as an official who was unaware of the prisoner’s complaints
and merely following NDOC’s COVID-19 protocols.
To be sure, even when the alleged deprivation of
exercise was, objectively, sufficiently serious, a prison
official may still be entitled to qualified immunity under
the subjective prong in extraordinary circumstances. In
12a
Appendix A
LeMaire v. Maass, for example, we held that an inmate
failed to show the prison official’s culpable state of mind
when the inmate had been denied opportunities for
exercise based on the inmate’s own misconduct, which
had “raise[d] serious and legitimate security concerns
within the prison.” 12 F.3d at 1458. Here, however,
Warden Johnson’s proffered justification does not rule
out deliberate indifference. He claims that he restricted
yard time for Unit 9 inmates to prevent the spread of
COVID-19—a rational explanation. But viewed in the
light most favorable to Cardenas-Ornelas, the non-movant,
Warden Johnson’s justification does not rule out deliberate
indifference because there is conflicting evidence which
shows Warden Johnson ordered Unit 9 to work despite the
risk of COVID-19. Indeed, Cardenas-Ornelas presented
evidence that Warden Johnson ordered Unit 9 inmates to
work even when many Unit 9 inmates were symptomatic or
had tested positive for COVID-19. Thus, there is a triable
issue whether Warden Johnson acted with deliberate
indifference when denying Unit 9 inmates yard time.
We therefore conclude that the district court properly
denied qualified immunity on Cardenas-Ornelas’s Eighth
Amendment claim against Warden Johnson. Our holding,
however, does not foreclose the trier of fact from making
factual determinations which could result in the post-trial
grant of qualified immunity on this claim for Warden
Johnson.
13a
Appendix A
B.
On the Fourteenth Amendment claim alleging a
violation of equal protection, we conclude that Warden
Johnson is entitled to qualified immunity. Because
Cardenas-Ornelas does not allege any “classification [that]
implicates a suspect class or infringes on a fundamental
right,” we review under the rational basis standard.
Bottinelli v. Salazar, 929 F.3d 1196, 1201 (9th Cir. 2019).
We consider whether “there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification,” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), including the
singling out of a “class of one,” Gerhart v. Lake County,
637 F.3d 1013, 1023 (9th Cir. 2011). Defendants “may not
rely on a classification whose relationship to an asserted
goal is so attenuated as to render the distinction arbitrary
or irrational.” City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Cardenas-Ornelas bears the burden “to negative every
conceivable basis which might support” the classification.
Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096 (quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,
364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)).
On this claim, Cardenas-Ornelas did not establish
a genuine dispute of material fact because he failed to
introduce summary judgment evidence which ruled out
every conceivable basis which might support the alleged
differences in yard time afforded Unit 9 and other
units, or Cardenas-Ornelas and other inmates. Namely,
confirmed and suspected cases of COVID-19 infection in
14a
Appendix A
Unit 9 provided a possible justification for continuing to
deny yard time for inmates in Unit 9 while reopening the
yard to inmates in other units. This justification was not
“so attenuated” from the goal of preventing the spread of
COVID-19 at HDSP “as to render the distinction arbitrary
or irrational.” City of Cleburne, 473 U.S. at 446, 105 S.Ct.
3249.
In denying qualified immunity on this claim, the district
court erred by crediting allegations in the complaint
which were unsworn and unsupported by evidence in the
record. See Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir.
2018) (holding that parties, even pro se inmates, cannot
rely on “statements in [their] district court [briefing] as
competent summary judgment evidence”). “Although we
do not ordinarily have jurisdiction on an interlocutory
appeal to review a denial of qualified immunity based
on the existence of a disputed fact, ‘when there is an
allegation about the conduct part of the equation, but
insufficient evidence of that conduct to create a genuine
issue of material fact, our cases permit review.’” Foster
v. City of Indio, 908 F.3d 1204, 1217 n.10 (9th Cir. 2018)
(per curiam) (alteration accepted) (quoting Jeffers, 267
F.3d at 907).
Cardenas-Ornelas alleged in his complaint that he
heard “a number of officers” say that “Warden Johnson
does not like protective segregation (‘P.S.’) inmates, and
that this allows him to lock down the P.S. units.” But that
statement was not “based on personal knowledge” and
did not “set[ ] forth the requisite facts with specificity,”
and thus could not “serve as an affidavit for purposes of
15a
Appendix A
summary judgment.” Moran v. Selig, 447 F.3d 748, 759
n.16 (9th Cir. 2006). Further, Cardenas-Ornelas failed to
“identify or submit some competent evidence,” Soto, 882
F.3d at 872, to support his claim that Warden Johnson
treated Unit 9 inmates differently based on a personal
dislike of protective segregation inmates. Thus, the
district court erred in concluding that Cardenas-Ornelas’s
“claims regarding Warden Johnson’s dislike of protective
segregation inmates and Defendants’ failure to refute
these claims” created a genuine dispute of material fact
which precluded summary judgment. We accordingly
reverse the district court’s denial of qualified immunity
to Warden Johnson on Cardenas-Ornelas’s Fourteenth
Amendment claim.
CONCLUSION
We affirm the district court’s denial of qualified
immunity on the Eighth Amendment claim, reverse
the district court’s denial of qualified immunity on
the Fourteenth Amendment claim, and we remand for
further proceedings consistent with this opinion and the
concurrently filed memorandum disposition.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.
16a
B
APPENDIX B —Appendix
MEMORANDUM
OF THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, FILED JANUARY 29, 2026
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-6755
D.C. No. 2:21-cv-00030-ART-MDC
LUIS CARDENAS-ORNELAS,
Plaintiff-Appellee,
v.
CALVIN JOHNSON; HAROLD WICKHAM;
CHARLES DANIELS; GARY PICCININI;
TIMOTHY STRUCK; ROBERT OWENS; JESSIE
BRIGHTWELL; MANUEL PORTILLO;
TIMOTHY JOHNSON,
Defendants-Appellants,
and
J. ALCOCK, JULIO CALDERIN,
Defendants.
Filed January 29, 2026
MEMORANDUM*
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
17a
Appendix B
Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding
Argued and Submitted October 9, 2025
Las Vegas, Nevada
Before: BENNETT, SANCHEZ, and H.A. THOMAS,
Circuit Judges.
Luis Cardenas-Ornelas, a prisoner in the custody of
the Nevada Department of Corrections (“NDOC”), brought
this action pursuant to 42 U.S.C. § 1983, alleging that staff
at High Desert State Prison (“HDSP”) denied him outdoor
exercise in violation of the Eighth Amendment and treated
him and his unit differently from others in violation of the
Fourteenth Amendment. Cardenas-Ornelas also brought
analogous claims under the Nevada Constitution. The
district court denied summary judgment on certain of
these claims against Warden Calvin Johnson, and Warden
Johnson appealed. We analyzed the district court’s denial
of qualified immunity in an accompanying opinion and now
turn to Warden Johnson’s other arguments.
1. We have jurisdiction to review the district court’s
denial of Warden Johnson’s claim that Nevada’s Eleventh
Amendment immunity provided Warden Johnson complete
immunity from suit. See P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).1 We review
1. Unlike the appellant in Taylor v. County of Pima, 913 F.3d
930, 934 (9th Cir. 2019), Warden Johnson asserts an immunity
from suit, not an immunity from liability. Taylor therefore does
not apply.
18a
Appendix B
de novo, as a question of law, “[a] state instrumentality’s
Eleventh Amendment sovereign immunity.” Doe v.
Regents of the Univ. of Cal., 891 F.3d 1147, 1152 (9th Cir.
2018).
2. Warden Johnson argues that the district court
improperly considered factual allegations that postdated
December 30, 2020, the date on which Cardenas-Ornelas
signed his complaint. This argument relies on the
general rule that a plaintiff may not present new factual
allegations at summary judgment in violation of the fair
notice requirement imposed by Federal Rule of Civil
Procedure 8(a)(2). See Pickern v. Pier 1 Imps. (U.S.), Inc.,
457 F.3d 963, 968 (9th Cir. 2006). And under Federal Rule
of Civil Procedure 15(d), a party must seek the district
court’s leave “to serve a supplemental pleading setting
forth transactions, occurrences, or events that have
happened since the filing of the pleading.” 6A Wright &
Miller’s Federal Practice & Procedure § 1504 (3d ed.
2025); see also Thorp v. District of Columbia, 325 F.R.D.
510, 514 (D.D.C. 2018) (denying leave to file a supplemental
complaint after discovery had closed in an action brought
in part under § 1983).
But in civil rights cases, “[a] document filed pro se
is ‘to be liberally construed.’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Thus, we liberally construe the summary
judgment appendix filed by Cardenas-Ornelas as having
supplemented his complaint to allege continuing violations
through July 27, 2021. And we understand the district
court’s summary judgment decision as having granted
19a
Appendix B
leave under Rule 15(d) to supplement the complaint in that
fashion. See Garrett v. Wexford Health, 938 F.3d 69, 81
n.17 (9th Cir. 2019). This was proper because prior filings
notified Defendants that Cardenas-Ornelas was alleging
an ongoing violation of his constitutional rights. Cf. Alvarez
v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (holding that
pro se prisoner’s “RLUIPA claim was presented to the
district court because his complaint and subsequent
filings provided [the defendants] with ‘fair notice’ of that
claim”). And Defendants have demonstrated no resulting
prejudice. Allowing Cardenas-Ornelas to supplement the
complaint was therefore “well within the district court’s
discretion under [Rule] 15(d), which is designed to permit
expansion of the scope of existing litigation to include
events that occur after the filing of the original complaint.”
Keith v. Volpe, 858 F.2d 467, 471 (9th Cir. 1988).
3. Warden Johnson contends that Nevada’s sovereign
immunity bars Cardenas-Ornelas’s state law claims
against him because the State has conditioned its waiver
of sovereign immunity on being named a party defendant,
and Eleventh Amendment immunity bars any action in
federal court against Nevada.
We conclude that the district court lacked jurisdiction
to consider Cardenas-Ornelas’s claims against Warden
Johnson brought under the Nevada Constitution. “The
Eleventh Amendment grants a State immunity from suit
in federal court . . . by its own citizens . . . .” Walden v.
Nevada, 945 F.3d 1088, 1092 (9th Cir. 2019). “A State may
waive its sovereign immunity at its pleasure, and in some
circumstances Congress may abrogate it by appropriate
20a
Appendix B
legislation.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
247, 253–54 (2011) (citation omitted). “But absent waiver
or valid abrogation, federal courts may not entertain a
private person’s suit against a State.” Id. at 254.
Under Nevada Revised Statute § 41.0337, “[n]o tort
action arising out of an act or omission within the scope
of a person’s public duties or employment may be brought
against any present or former” NDOC officer or employee
“unless the State or appropriate political subdivision is
named a party defendant under [Nev. Rev. Stat. § 41.031].”
Nev. Rev. Stat. § 41.0337. In other words, for certain tort
actions, Nevada has conditioned its waiver of sovereign
immunity on being named a party defendant. See id.
Thus, to sue NDOC officers under state law in this action,
Cardenas-Ornelas was required under § 41.0337 to name
Nevada as a defendant. See id. But he could not do so in
federal court because Nevada has not waived its Eleventh
Amendment immunity from suit in federal court, and
Congress has not abrogated state sovereign immunity for
actions brought under 42 U.S.C. § 1983. See O’Connor v.
Nevada, 686 F.2d 749, 750 (9th Cir. 1982) (first citing Nev.
Rev. Stat. § 41.031(3); and then citing Quern v. Jordan,
440 U.S. 332, 338–41 (1979)). Accordingly, the district
court lacked jurisdiction over Cardenas-Ornelas’s state
law claims. See Stewart, 563 U.S. at 254. 2
2. We decline to reach whether the relevant clauses of the
Nevada Constitution provide implied private rights of action for
damages under the framework outlined in Mack v. Williams, 522
P.3d 434 (Nev. 2022).
21a
Appendix B
We AFFIRM in part and REVERSE in part as
discussed in this memorandum disposition and in our
concurrently filed opinion, and remand for further
proceedings consistent with our decisions.
22a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE DISTRICT
OF NEVADA, FILED SEPTEMBER 30, 2024
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:21-cv-00030-ART-VCF
LUIS CARDENAS-ORNELAS,
Plaintiff,
v.
WICKHAM, et al.,
Defendants.
Filed September 30, 2024
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Pro se Plaintiff Luis Cardenas-Ornelas (“CardenasOrnelas”) brings this action under 42 U.S.C. § 1983
against Defendants Jessie Brightwell (“Brightwell”),
Charles Daniels (“Daniels”), Calvin Johnson (“Warden
Johnson”), Timothy Johnson (“Officer Johnson”), Robert
Owens (“Owens”), Gary Piccinini (“Piccinini”), Manuel
Portillo (“Portillo”), Timothy Struck (“Struck”), and
Harold Wickham (“Wickham”) (collectively, “Defendants”)
23a
Appendix C
for alleged constitutional violations that occurred while
Plaintiff was quarantined at High Desert State Prison
(“HDSP”) during the Covid-19 pandemic.
Before the Court is Defendants’ motion for summary
judgment (ECF No. 84), Plaintiff’s response (ECF No.
87), and Defendants’ reply (ECF No. 93). For the reasons
stated below, the Court grants in part and denies in part
Defendants’ motion for summary judgment.
I.
BACKGROUND
Cardenas-Ornelas is an inmate in custody of the
Nevada Department of Corrections (“NDOC”). (ECF No.
No. 1-1.) The events giving rise to this action took place in
2020 while Cardenas-Ornelas was housed at High Desert
State Prison (“HDSP”). (Id.)
In January 2021, Cardenas- Ornelas f iled the
complaint in this case, asserting six counts under 42 U.S.C.
§ 1983 and seeking injunctive relief, declaratory relief,
and monetary damages. (ECF No. 1-1.) After screening
the complaint, the Court allowed Cardenas-Ornelas to
proceed with two claims under Count Two; one claim
under Count Four; one claim under Count Five; and two
claims under Count Six. (ECF No. 12.)
Under Count Two, the Court allowed Plaintiff to
proceed with a claim that Defendants Portillo, Owens,
Warden Johnson, Struck, and Piccinini violated Plaintiff’s
Eighth Amendment and the Nevada constitution’s
prohibition against cruel and unusual punishment by
24a
Appendix C
denying Plaintiff yard time and outdoor exercise (2A);
and a claim that Defendants Portillo, Owens, Warden
Johnson, Struck, and Piccinini violated the federal and
state constitutional right to equal protection by providing
yard time to inmates other than Plaintiff (2B). Under
Count Four, the Court allowed Plaintiff to proceed with
his claim that that Defendants Daniels, Warden Johnson,
Piccinini, and Struck violated the Eighth Amendment by
requiring officers to come to work after they had reported
coming into contact with people who had Covid-19. Under
Count Five, the Court allowed Plaintiff to proceed with
his claim that Defendant Officer Johnson violated the
First Amendment by interfering with mail. Under Count
Six, the Court allowed Plaintiff to proceed with (6A) a
claim that Daniels, Wickham, Warden Johnson, Piccinini,
Struck, Portillo, Brightwell and Owens violated the First
Amendment and Nevada constitution by denying all phone
calls; and (6B) a claim that Defendant Warden Johnson
violated Plaintiff’s equal protection rights by denying him
phone calls but allowing other inmates to make phone
calls.
In October 2023, Defendants filed a motion for
summary judgment, seeking to dismiss Plaintiff ’s
claims as meritless; barred because of failure to exhaust
administrative remedies; and barred by qualified
immunity. (ECF No. 84.) Plaintiff filed a response in
opposition to the motion for summary judgment. (ECF
No. 87.) Defendants filed a reply. (ECF No. 93.)
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II. LEGAL STANDARD
A.
SUMMARY JUDGMENT
A party is entitled to summary judgment when “the
movant shows that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp
v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P.
56(c)). An issue is “genuine” if the evidence would permit
a reasonable jury to return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). A fact is “material” if it could affect the outcome of
the case. Id. at 248. Where reasonable minds could differ
on the material facts at issue, summary judgment is not
appropriate. Anderson, 477 U.S. at 250.
In considering a motion for summary judgment,
all reasonable inferences are drawn in the light most
favorable to the non-moving party. In re Slatkin, 525
F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser
Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100,
1103 (9th Cir. 1986). However, if the evidence of the
nonmoving party “is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-250
(citations omitted). The court’s function is not to weigh the
evidence and determine the truth or to make credibility
determinations. Celotex, 477 U.S. at 249, 255; Anderson,
477 U.S. at 249.
In deciding a motion for summary judgment, the
court applies a burden-shifting analysis. “When the party
26a
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moving for summary judgment would bear the burden of
proof at trial, ‘it must come forward with evidence which
would entitle it to a directed verdict if the evidence went
uncontroverted at trial.’ . . . In such a case, the moving
party has the initial burden of establishing the absence
of a genuine [dispute] of fact on each issue material to its
case.” C.A.R. Transp. Brokerage Co. v. Darden Rest.,
Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). When the nonmoving party bears the burden
of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party’s
case; or (2) by demonstrating that the nonmoving party
cannot establish an element essential to that party’s case
on which that party will have the burden of proof at trial.
See Celotex, 477 U.S. at 323-25.
If the moving party satisfies its initial burden,
the burden shifts to the nonmoving party to establish
that a genuine dispute exists as to a material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party need not establish
a genuine dispute of material fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be shown
to require a jury or judge to resolve the parties’ differing
versions of truth at trial.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(quotation marks and citation omitted). The nonmoving
party cannot avoid summary judgment by relying solely
on conclusory allegations that are unsupported by factual
data. Matsushita, 475 U.S. at 587. Instead, they must go
beyond the assertions and allegations of the pleadings and
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set forth specific facts by producing competent evidence
that shows a genuine dispute of material fact for trial.
Celotex, 477 U.S. at 324.
III. COUNT 2A: DENIAL OF YARD TIME
A.
FACTS
On March 18, 2020, Cardenas-Ornelas’s Unit—Unit
9—was placed on quarantine because a canteen staff
member tested positive for Covid-19, and inmate canteen
workers assigned to Unit 9 had been in close contact with
them. (ECF Nos. 84 at 5, 84-1 at 75, 229.) CardenasOrnelas claims that this decision was made by Defendants
Portillo, Owens, Warden Johnson, Struck, and Piccinini.
(ECF Nos. 1-1 at 12, 12 at 11.) This quarantine lasted until
April 27, 2020, when Unit 9 inmates were permitted to
work but denied yard time. (ECF Nos. 1-1 at 12, 84-1 at 75,
87 at 3.) On May 19, 2020, Unit 9 was placed on lockdown
again after one inmate tested positive for Covid-19. (ECF
Nos. 84 at 5, 84-1 at 229.) On May 26, 2020, four inmates
tested positive for Covid-19, and all HDSP inmates were
isolated for a minimum of twenty days. (ECF No. 84-1 at
229-30.)
During this time, Cardenas-Ornelas claims that he
was denied all yard time but required to go to work, where
there were at least 130 inmates working together in a
warehouse and where social distancing was impossible.
(ECF No. 1-1 at 12.) Cardenas-Ornelas was paid for work
at the Prison Industries card room and hanger room
at HDSP for most weeks from June 1, 2020 to July 30,
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2021. (ECF No. 87-1 at 43-46.) Cardenas-Ornelas claims
that during this time he had multiple conversations with
defendants Portillo and Struck regarding the issue of
being sent to work while being denied yard time. (ECF
No. 1-1 at 12.) Defendants said that the entire lockdown
and ban on yard time was due to Covid-19 but did not
explain why inmates were denied outdoor exercise while
being allowed to work indoors. (Id.) Portillo and Struck do
not deny or admit having these conversations. (See ECF
No. 84-1 at 235-36, 255-56.) By June 23, 2020, inmates in
other units were permitted to resume yard time, but Unit
9 remained in quarantine. (ECF No. 84-1 at 230.)
On June 12, 2020, Cardenas-Ornelas filed an informal
grievance complaining about having been “confined to [his]
cell for 23 to 23 ½ hours a day except for . . . work which
is for 8 to 9 hours in a crowded warehouse with about 130
other [i]nmates.” (ECF No. 84-1 at 74.) On July 27, Struck
denied that grievance, citing health and safety reasons.
(Id.) On August 12, Cardenas-Ornelas filed a first level
grievance, reiterating his original complaints. (Id.) On
August 20, Warden Johnson denied that grievance, stating
that “NDOC has not placed any institution on lock-down
but has quarantined in an effort to adhere to important
Center for Disease Control and prevention guidelines.”
(Id. at 75) In his response, Warden Johson explained that
[a]fter receiving medical clearance, Unit 9 inmate workers
received authorization to return to work as early as April
27, 2020.” (Id.) Warden Johnson did not explain why the
return to work was not accompanied by a return to yard
time. (See id.; ECF No. 1-1 at 14.) Cardenas-Ornelas filed
a second level grievance, which Wickham denied, finding
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that his grievance had been “answered correctly at the
informal and first levels.” (ECF No. 84-1 at 76.)
Cardenas-Ornelas claims that between March 18,
2020 and July 27, 2021, he has been denied all outdoor
exercise except for about 20 hours. (ECF No. 87 at
3.) Cardenas-Ornelas claims that during this time,
Defendants permitted every other unit within NDOC
to continue receiving yard time. (ECF No. 1-1 at 15.)
Defendants challenge these claims but do not offer
evidence regarding Unit 9’s access to yard time after June
2020. (See ECF No. 84 at 17, 6.)
B. EIGHTH AMENDMENT
“It is undisputed that the treatment a prisoner
receives in prison and the conditions under which [the
prisoner] is confined are subject to scrutiny under the
Eighth Amendment.” Helling v. McKinney, 509 U.S.
25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825,
832 (1994). To successfully challenge the conditions of
confinement under the Eighth Amendment, a plaintiff
must meet both an objective and subjective test. Johnson
v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).
The Ninth Circuit has “recognized that exercise
is one of the basic human necessities protected by the
Eighth Amendment.” Norbert v. City & County of San
Francisco, 10 F.4th 918, 928–29 (9th Cir. 2021) (citation
and internal quotation marks omitted). “Deprivation
of outdoor exercise violates the Eighth Amendment
rights of inmates confined to continuous and long-term
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segregation.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.
1996) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th
Cir. 1979)), amended by 135 F.3d 1318 (9th Cir. 1998); see
also Thomas v. Ponder, 611 F.3d 1144, 1151–52 (9th Cir.
2010); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir.
2010); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir.
2005); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000)
(en banc); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995);
Allen v. City of Honolulu, 39 F.3d 936, 938–39 (9th Cir.
1994); LeMaire v. Maass, 12 F.3d 1444, 1457–58 (9th Cir.
1993); Toussaint v. Yockey, 722 F.2d 1490, 1492–93 (9th
Cir. 1984).
The prolonged deprivation of outdoor exercise to
inmates confined to continuous and long-term segregation
meets the objective prong of the Eighth Amendment.
Keenan, 83 F.3d at 1089; LeMaire, 12 F.3d at 1458 (“the
long-term deprivation of outside exercise for inmates is
unconstitutional”). By contrast, “a temporary denial of
outdoor exercise with no medical effects is not a substantial
deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir.
1997) (the denial of exercise for 21 days was not a violation
of the Eighth Amendment). In Spain v. Procunier, the
Ninth Circuit held that confinement of prisoners who
were assigned to the “adjustment center” “for a period of
[four] years without opportunity to go outside except for
occasional court appearances, attorney interviews, and
hospital appointments” was cruel and unusual punishment.
Spain, 600 F.2d at 192, 200. In Toussaint v. Yockey, the
Ninth Circuit upheld a preliminary injunction requiring
the state to provide “outdoor exercise” where prisoners,
who had been held in administrative segregation for over
a year, were “confined to their cells for as much as 23 ½
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hours a day.” Toussaint, 722 F.2d at 1492-3. Prison officials
may restrict outdoor exercise on the basis of weather,
unusual circumstances, or disciplinary needs. See Spain,
600 F.2d at 199. However, “[t]he cost or inconvenience of
providing adequate [exercise] facilities is not a defense to
the imposition of a cruel punishment.” Id. at 200.
As to the subjective prong of the Eighth Amendment
analysis, prisoners must establish prison officials’
“deliberate indifference” to unconstitutional conditions of
confinement to establish an Eighth Amendment violation.
See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303.
To demonstrate that a prison official was deliberately
indifferent to a serious threat to an inmate’s health and
safety, the prisoner must show that the “the official [knew]
of and disregard[ed] an excessive risk to inmate . . . 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 [the official] must also draw the inference.
Farmer, 511 U.S. at 846.
C.
STATE CONSTITUTIONAL CLAIMS
The Court allowed Cardenas-Ornelas to proceed with
associated claims under the Nevada Constitution because
courts apply the same legal standards to the cruel and
unusual punishment provision in Article 1, Section 6 of the
Nevada Constitution as they do to the Eighth Amendment.
(ECF No. 12 at 15.)
Defendants argue that this Court lacks jurisdiction
to consider Cardenas-Ornelas’s state law claims because
32a
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they are barred by sovereign immunity under the Eleventh
Amendment. (ECF No. 84 at 8.) Defendants explain that
Nevada has conditioned its waiver of sovereign immunity
on meeting the requirements of NRS 41.031-41.0337,
which require that that the plaintiff “name the state as
a party to any state tort claims” against state employees
and entities. (Id.); Craig v. Donnelly, 135 Nev. 37, 38
(Nev. App. 2019). Plaintiff’s damages claim arising out of
the Nevada Constitution, however, may proceed against
state employees in their personal capacities. Mack v.
Williams, 522 P.3d 434, 448 (2022) (rejecting defendants’
assertion that state tort law provides meaningful redress
for invasions of the constitutional rights at issue).
In Mack, the Nevada Supreme Court held that a
plaintiff may bring a private action against state actors
for damages under Article 1, Section 18 of the Nevada
Constitution (which is substantively identical to the
Fourth Amendment of the U.S. Constitution). Mack, 522
P.3d at 442, 451. In reaching that conclusion, the court
“recognize[d] that it is not necessary for the Nevada
Constitution to expressly confer such a remedy, nor
for the Nevada Legislature to expressly authorize one,
because the search-and-seizure rights are self-executing
limitations on, and thus inherently enforceable against,
arbitrary abuse of government power.” Id. at 451. The
court did not address whether a private right of action
exists under other provisions of the Nevada Constitution.
See id. at 441. However, the court adopted a “framework
for answering whether a self-executing provision of the
Nevada Constitution is enforceable through a damages
remedy” based on California’s framework for the same
33a
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inquiry, as set out in Katzberg v. Regents of Univ. of Cal.,
58 P.3d 339 (2002). Id. at 444-45, 451. This framework
involves asking first “whether the language and history
of the at-issue constitutional provision establishes an
affirmative indication of intent to provide or withhold the
requested remedy.” Id. at 451. If it does not, the court then
considers “whether the several factors set forth in § 874A
of the Restatement (Second) of Torts favor the requested
remedy.” Id. If consideration of those factors favors a
damages action, the court finally considers “whether any
special factors counsel hesitation against recognition.”
Id. at 452.
Nevada courts do not appear to have undertaken an
analysis of Article 1, Section 6 of the Nevada Constitution
under this framework yet. In the absence of a controlling
state Supreme Court decision, a federal court applying
state law must apply the law as it believes the state
Supreme Court would apply it. Gravquick A/S v. Trimble
Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003)
(citing Astaire v. Best Film & Video Crop, 116 F.3d 1297,
1300 (9th Cir.), amended by 136 F.3d 1208 (9th Cir. 1997)).
“In other words, a federal district court . . . must predict
how the Nevada Supreme Court would decide unresolved
issues of state law, using statutes and decisions from other
jurisdictions as interpretive aids.” Mirch v. Frank, 295 F.
Supp. 2d 1180, 1183 (D. Nev. 2003).
Under the first step of Katzberg, the Court finds
no language or history that establishing an affirmative
indication of intent to provide or withhold a damages
action. Article 1, Section 6 of the Nevada Constitution
34a
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provides in its entirety: “Excessive bail shall not be
required, nor excessive fines imposed, nor shall cruel or
unusual punishments be inflicted, nor shall witnesses
be unreasonably detained.” Nev. Const. art. I, § 6. Like
Section 18, this language discloses no intent with regard
to a right of action damages. Mack, 522 P.3d at 447. And
like Section 18, this provision was ratified in 1864 and has
not been amended since.
Under the second step, the Court considers several
factors to determine whether a damages remedy is “in
furtherance of the purpose of the provision” and “needed
to assure the effectiveness of the provision.” Mack,
522 P.3d at 447–48. To answer this question, the Court
considers “(1) the nature of the legislative provision, (2) the
adequacy of existing remedies, (3) the extent to which a
[constitutional] tort action supplements or interferes with
existing remedies and enforcement, (4) the significance of
the purpose of the provision, (5) the extent of the change
in tort law and (6) the burden on the judiciary.” Id. at 448
(cleaned up).
These factors favor recognizing an implied right
of action for damages. Section 6 is, like Section 18, a
significant Constitutional right. Existing alternative
remedies like state tort law serve “different interests”
than constitutional guarantees. Id. at 448 (citing Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 394–95 (1971)). Tort law establishes
generally duties between members of the community,
while constitutional remedies provide higher standards,
because agents of the state must “not only . . . respect
35a
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the rights of other citizens” but also “protect and defend
those rights.” Id. (citation omitted). Rights of action for
Section 6 do not interfere with existing remedies and
enforcement, and they allow for development of the
Nevada Constitution’s jurisprudence regarding prisoners’
rights. Finally, recognizing a damages action will not place
an additional burden on the judiciary because federal
courts apply the same legal standards to the cruel and
unusual punishment provision in Article 1, Section 6
of the Nevada Constitution as they do to the cruel and
unusual provision of the Eighth Amendment to the U.S.
Constitution and routinely allow such claims to proceed.
Vickers v. Godecki, No. 2:20-CV-01401-GMN-NJK, 2023
WL 2435110, at *2 (D. Nev. Mar. 8, 2023); Meeks v. Nevada
Dep’t of Corr., No. 3:18-CV-00431-MMD-WGC, 2020 WL
8084979, at *19 (D. Nev. Nov. 10, 2020) (collecting cases),
report and recommendation adopted sub nom. Meeks v.
Bacca, No. 3:18-CV-00431-MMD-WGC, 2021 WL 53619
(D. Nev. Jan. 6, 2021).
Finally, the Court sees no special factors that would
militate against finding an implied right of action for
damages under Section 6 where one already exists for
Section 18. See Mack, 522 P.3d at 449-450.
Mack does not address claims for injunctive and
declaratory relief and the Court declines to reach that
issue. Id. at 441. Thus, Cardenas-Ornelas’s claims for
damages against individual officers in this case may
proceed.
36a
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D.
ANALYSIS
In their motion for summary judgment, Defendants
argue that Cardenas-Ornelas’s claim should fail as a
matter of law because he cannot establish either the
objective or subjective prong of the Eighth Amendment
test. (ECF No. 84 at 18.)
First, Defendants argue that Cardenas-Ornelas “has
not and cannot establish that a lack of outdoor exercise
caused an objectively serious risk of harm.” (ECF No. 84
at 16.) However, Ninth circuit caselaw clearly establishes
that denial of outdoor exercise for a prolonged period of
time meets the objective prong of the Eighth Amendment
analysis. Keenan, 83 F.3d at 1089; LeMaire, 12 F.3d at
1458.
Defendants rely on Norbert v. City and County of San
Francisco to argue that, because Cardenas-Ornelas “was
able to exercise in his cell,” he cannot establish objective
harm. (ECF No. 84 at 16.) In Norbert, the Ninth Circuit
explained that “the constitutionality of conditions for
inmate exercise must be evaluated based on the full extent
of the available recreational opportunities.” Norbert, 10
F.4th at 930. In that case, administrative segregation
inmates received “at least one hour of recreation time
seven days a week” between “the day room and gym,”
and general population inmates were allowed “at least 4.5
hours of total recreation time each day during the week,
and at least 8 hours on weekends.” Id. at 934. However, the
facts of this case are more analogous to those in Toussaint,
where inmates were confined to their cells for 23 hours
37a
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a day for over one year. Toussaint, 722 F.2d at 1492-93.
Defendants do not point to any recreation opportunities
that Cardenas-Ornelas was given outside his cell, and
do not challenge Cardenas-Ornelas’s claim that he was
“confined to [his] cell for 23 to 23 ½ hours a day” except
when he went to work. (ECF Nos. 84-1 at 74, 1-1 at 13.)
Defendants also fail to provide evidence to counter
Cardenas-Ornelas’s claim that “except for about 2 hours
from when the lockdown began on March 18th, 2020 up
to when the defendants began giving Plaintiff 3 hours of
yard a week on July 27th, 2021,” Plaintiff was “denied all
outdoor exercise.” (ECF No. 87 at 3.) Defendants argue
that it is “absolutely not the case” that Cardenas-Ornelas
remained on lockdown for the seven months between May
20, 2020, until December 30, 2020,1 but have not provided
the Court with evidence of what occurred after June 2020.
(See ECF Nos. 84 at 2-6, 84-1 at 230.) The facts, viewed in
the light most favorable to Plaintiff, show that Cardenas1. Defendants ask the Court to consider only the time period
from March 2020 to December 2020, when Cardenas-Ornelas filed
his initial complaint in this case, citing to a private antitrust case
that precluded damages arising from acts committed after the
filing of the amended complaint. (ECF No. 93 at 13) n.2 (citing
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th
Cir. 2006) (quotations omitted) (emphasis added).) Defendants
fail to cite any authority that this rule applies in a § 1983 context
and the Ninth Circuit has long recognized that a civil rights
plaintiff “who establishes liability for deprivations of constitutional
rights actionable under 42 U.S.C. § 1983 is entitled to recover
compensatory damages for all injuries suffered as a consequence
of those deprivations.” See Borunda v. Richmond, 885 F.2d 1384,
1389 (9th Cir. 1988) (emphasis added).
38a
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Ornelas was denied all outdoor exercise for over a year,
which meets the objective test of the Eighth Amendment
analysis.
Defendants next argue that Cardenas-Ornelas’s claim
should fail because he “cannot show that Defendants
knew that the lack of outdoor exercise caused a serious
risk of harm.” (ECF No. 84 at 16.) Defendants argue that
the Covid-19 pandemic was a “life and death emergency”
and that the lockdown was “reasonably imposed at HDSP
to protect inmates from Covid-19.” (Id. at 17.) The Ninth
Circuit has held that in cases of genuine emergency, the
temporary deprivation of outdoor exercise may not violate
the Eighth Amendment. Hayward v. Procunier, 629
F.2d 599, 603 (9th Cir. 1980). In that case, the temporary
lockdown was imposed after two men were killed in
separate acts of gang violence—in a year where twelve
people had been killed—and “yard exercise was permitted
within a month after the lockdown began, and the normal
exercise routine was restored [within six months.]” Id.
Here, Defendants have offered no evidence explaining
when and how yard exercise was restored for inmates,
including Cardenas-Ornelas, in Unit 9.
Defendants rely on Norwood v. Vance, a case which
involved a prisoner who was denied outdoor exercise
“during four separate extended lockdowns over the course
of two years.” Norwood v. Vance, 591 F.3d 1062, 1065 (9th
Cir. 2010). Each lockdown—which lasted between two
and four and a half months—was initiated after “serious
inmate assaults on staff,” and the prisoners were confined
to their cells, with all normal programs suspended, “while
39a
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officers investigated the violence.” Id. Because the record
in that case “[made] clear that a great deal of violence
took place during outdoor exercise,” the court found that
“officials’ judgment that there was a greater risk of harm
from allowing outdoor exercise was certainly reasonable.”
Id. at 1070.
Here, unlike in Norwood, Defendants have failed
to provide evidence to support a reasonable conclusion
that there was a greater risk of harm from allowing
outdoor exercise than indoor activities such as work. In
their motion for summary judgment, Defendants almost
entirely fail to respond to Cardenas-Ornelas’s claims that,
for much of the time that he was quarantined, CardenasOrnelas was required to go to work, where there were at
least 130 inmates working together in a warehouse, and
where social distancing was impossible. (ECF No. 1-1 at
12.) In their reply to Plaintiff’s opposition, Defendants
address this argument with an additional declaration
by Jeremy Bean, HDSP Warden. (ECF No. 93-1 at 2-4.)
Defendants claim that “prison officials balanced the risks
of the COVID-19 pandemic against the privileges that
had previously been provided to inmates and determined
that while yard time would not comport with COVID-19
protocols, inmates could still be afforded the opportunity
to work in Prison Industries and earn wages and good
time credits.” (ECF No. 93 at 14.) Defendants argue that
“[t]he level of supervision and affirmative measures to
protect inmates from COVID-19 were simply not available
in the yard, while Prison Industries had alternative
funding to ensure adequate supervision, and a space
where COVID-19 protocols could be enforced and where
40a
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remedial measures, such as a fogger device used to kill
COVID-19, could be implemented.” (Id.)
Defendants’ arg uments regarding the cost of
providing yard time fail to provide adequate justification
because the Ninth Circuit has explained that “[t]he cost
or inconvenience of providing adequate [exercise] facilities
is not a defense to the imposition of a cruel punishment.”
Spain, 600 F.2d at 200. While these arguments provide
some justification for the disparity between yard time
and work, they do not establish the absence of a genuine
dispute of material fact. A rational finder of fact could
find that that this after-the-fact justification for the
disparity between access to the yard and access to work
was pretextual.
Because under these facts, viewed in the light
most favorable to Cardenas-Ornelas, a rational finder
of fact could find that Defendants were deliberately
indifferent by intentionally and unnecessarily denying
Cardenas-Ornelas outdoor exercise, summary judgment
is inappropriate as to Plaintiff’s Eighth Amendment and
state constitutional claims on the basis of denial of yard
time.
E. PERSONAL PARTICIPATION
Defendants also argue that Cardenas-Ornelas cannot
establish that Defendants personally participated in
any constitutional violation because each Defendant was
“merely following the policies and procedures set forth by
the NDOC Medical Director.” (ECF No. 84 at 22.)
41a
Appendix C
A defendant is liable under § 1983 “only upon a
showing of personal participation by the defendant.”
Farmer, 511 U.S. at 844. “A supervisor is only liable for
the constitutional violations of . . . subordinates if the
supervisor participated in or directed the violations,
or knew of the violations and failed to act to prevent
them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(citations omitted). “The requisite causal connection
can be established . . . by setting in motion a series of
acts by others or by knowingly refus[ing] to terminate
a series of acts by others, which [the supervisor] knew
or reasonably should have known would cause others to
inflict a constitutional injury.” Rodriguez, 891 F.3d at 798
(quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).
A showing that a supervisor acted, or failed to act, in a
manner that was deliberately indifferent to an inmate’s
Eighth Amendment rights is sufficient to demonstrate the
involvement—and the liability—of that supervisor. Starr,
652 F.3d at 1206–07.
The Ninth Circuit has held that a defendant can
personally participate in a violation by denying a grievance.
Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014);
see Jackson v. Nevada, No. 216CV00995APGNJK, 2019
WL 6499106, at *7 (D. Nev. Dec. 3, 2019), aff’d, No. 2015007, 2022 WL 16756349 (9th Cir. Nov. 8, 2022). In Snow
v. McDaniel, the Ninth Circuit denied summary judgment
to a prison warden and associate warden because they
were aware, through the grievance process and other
documentation, that the prisoner needed surgery and
they “failed to act to prevent future harm.” Snow v.
McDaniel, 681 F.3d 978, 989 (9th Cir. 2012), overruled
42a
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on other grounds in Peralta v. Dillard, 744 F.3d 1076,
1083-84 (9th Cir. 2014).
Defendants point to Peralta v. Dillard, a case which
involved a claim of deliberate indifference to serious
medical needs against a prison’s chief dental officer, chief
medical officer, and staff dentist. Peralta v. Dillard, 744
F.3d 1076, 1081 (9th Cir. 2014). The Ninth Circuit found
that neither the chief dental officer nor the chief medical
officer was deliberately indifferent because both were
administrators who signed appeals and did not personally
participate in the prisoner’s treatment. Id. at 1086-87.
Here, Defendants argue that they “are not doctors and
therefore were not required to second guess the Medical
Director’s judgment on how best to respond to the
Covid-19 pandemic.” (ECF No. 84 at 22.)
However, the administrators in Peralta were not
officers or wardens interacting with the prisoners—as is
the case here—but supervisors who were not aware of the
prisoner’s complaints, who had not directly interacted with
the prisoner, and whose only involvement was the signing
of second-level appeals. Peralta, 744 F.3d at 1086-87. The
“medical judgments” discussed in Peralta were made not
by a high-level medical officer, but by a staff dentist who
treated the prisoner. Id. at 1086. Furthermore, Peralta
did not involve a motion for summary judgment, but a
motion for judgment as a matter of law after a jury trial.
Id. at 1085. The court explained that, because the jury
had found that the staff dentist was not liable, “the jury
essentially resolved the question of [the chief dental officer
and the chief medical officer’s] liability as well.” Id. at 1088.
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If Cardenas-Ornelas were bringing this lawsuit against
NDOC’s chief medical officer, and had already had a jury
trial, Peralta might be applicable, but on the facts and
procedural posture here, it is not. Finally, Peralta does
not change the holding in Snow that, while a supervisor
cannot be held vicariously liable, a supervisor can be liable
as a participant based on knowledge and failure to act.
Snow, 681 F.3d at 989.
i.
Warden Johnson
Defendant Warden Johnson was warden of HDSP in
2020. (ECF No. 84-1 at 227.) In this role, he was “responsible
for overseeing all aspects of HDSP, including overseeing
NDOC policies, practices and procedures implemented at
HDSP” and “overseeing the implementation of all medical
protocols issued by the NDOC Medical Director[.]” (Id.)
Cardenas-Ornelas claims that Warden Johnson was
among the individuals who decided to quarantine Unit 9 in
March 2020. (ECF Nos. 1-1 at 12, 12 at 11.) However, this
occurred before Warden Johnson started his employment
as warden as HDSP. (ECF No. 84-1 at 227, 229.) Warden
Johnson states that lockdown decisions were made “for
the protection [of] inmates and staff alike,” but does not
address the discrepancy between denial of yard time
and authorization to work. (Id. at 229.) Warden Johnson’s
declaration does not include any statements regarding
quarantines imposed after June 2020. (See id. at 227-230.)
On August 20, 2020, Warden Johnson denied CardenasOrnelas’s first level grievance regarding denial of yard
time. (ECF No. 84-1 at 75, 229.) In that response, Warden
Johnson admits that “Unit 9 inmate workers received
44a
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authorization to return to work as early as April 27, 2020.”
(ECF No. 84-1 at 75.)
Warden Johnson personally reviewed and denied
Cardenas-Ornelas’s first level grievance, and the evidence
suggests that Warden Johnson had authority to resolve
the underlying issue. While Warden Johnson may not have
been responsible for the first quarantine decision in March
2020, he had authority in overseeing and implementing the
Covid-19 regulations. (ECF No. 84-1 at 227.) Therefore,
Warden Johnson is an appropriate defendant and summary
judgment in his favor on this count is denied.
ii.
Struck
In 2020, Defendant Struck was a correctional sergeant
assigned to the visiting department at HDSP. (ECF No.
84-1 at 260.) In this role, his responsibilities included
“supervision of staff under [his] command, supervision,
custody, security, discipline, safety offenders, the security
of safety and staff, and the security and safety of the
institution to which [he is] assigned.” (Id.) CardenasOrnelas claims that Struck was among the individuals who
decided to quarantine Unit 9 in March 2020. (ECF Nos. 1-1
at 12, 12 at 11.) Struck states that the Covid-19 protocols
were communicated to him through the chain of command
and that as correctional sergeant, he was required to and
followed the protocols as directed. (ECF No. 84-1 at 235.)
In July 2020, Struck responded to Cardenas-Ornelas’s
informal grievance regarding denial of yard time on health
and safety grounds. (ECF No. 74 at 262.) Struck claims
that in 2020, he “never denied Cardenas-Ornelas’s access
45a
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to scheduled yard time, except when required by the
established Covid-19 protocols[.]” (ECF No. 84-1 at 236.)
Because Cardenas-Ornelas has not provided sufficient
evidence show ing that Struck had authority over
implementing the Covid-19 protocols, Struck is entitled
to summary judgment on this count.
iii. Portillo
In 2020, Defendant Portillo was a correctional
lieutenant at HDSP, whose responsibilities included
“supervision of staff under [his] command, supervision,
custody, security, discipline, safety offenders, the security
and safety of staff, and the security and safety of the
institution to which [he is] assigned.” (ECF No. 84-1 at 255.)
Cardenas-Ornelas claims that Portillo was responsible
for deciding to quarantine Unit 9 on March 18, 2020
and that Cardenas-Ornelas had multiple conversations
with Portillo regarding the issue of denial of yard time.
(ECF Nos. 1-1 at 12, 12 at 11.) Portillo’s declaration does
not admit or deny these conversations. (See ECF No.
84-1 at 255-56.) In his declaration, Portillo explains that
“[b]eginning in March 2020, the NDOC Medical Director
established specific protocols for addressing COVID-19,
which were implemented by the NDOC Director, Chief of
Nursing, and the warden at HDSP.” (ECF No. 84-1 at 255.)
These protocols were “communicated to Portillo through
the chain of command, town hall meetings, memos, and
emails” and, as correctional lieutenant, Portillo was
required to and followed these protocols as directed. (Id.)
Portillo states that in 2020, he “never denied Cardenas-
46a
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Ornelas’s access to scheduled yard time, except when
required by the established Covid-19 protocols.” (ECF
No. 84-1 at 255.)
Because Cardenas-Ornelas has not provided evidence
showing that Portillo had authority over implementing
the Covid-19 protocols or responded to any of the relevant
grievances, Portillo is entitled to summary judgment on
this count.
iv.
Owens
In 2020, Defendant Owens was a lieutenant at HDSP,
whose responsibilities included “supervision of staff under
[his] command, supervision, custody, security, discipline,
safety offenders, the security and safety of staff, and the
security and safety of the institution[.]” (ECF No. 84-1
at 261.) Cardenas-Ornelas claims that he had multiple
conversations with Owens regarding the issue of denial of
yard time. (ECF Nos. 1-1 at 12, 12 at 11.) Owens does not
admit or deny these conversations. (See ECF No. 84-1 at
261-62.) In his declaration, Owens states that the Covid-19
protocols were communicated to him through the chain of
command and that as lieutenant, he was required to and
followed those protocols as directed. (Id.) Owens claims
that the only interaction he had with Cardenas-Ornelas
was “responding to a grievance concerning his legal mail.”
(Id.) Owens also states that as lieutenant, he had “no
control or input over phone access or tier, yard, chapel,
and law library schedules at HDSP.” (Id.)
Because Cardenas-Ornelas has not provided evidence
showing that Owens had any decision-making authority
47a
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regarding Cardenas-Ornelas’s yard time and was involved
in relevant grievance responses, Owens is entitled to
summary judgment on this count.
v.
Piccinini
From May 2020, Defendant Piccinini was an associate
warden at HDSP. (ECF No. 84-1 at 258.) In this role,
his responsibilities included “supervision of staff and
programs at HDSP, supervision, custody, security,
discipline, safety offenders, the security and safety
of staff, and the security and safety of HDSP.” (Id.)
Cardenas-Ornelas claims that Piccinini was among the
individuals who decided to quarantine Unit 9 in March
2020. (ECF Nos. 1-1 at 12, 12 at 11.)
Like other defendants, Piccinini states that the
Covid-19 protocols were communicated to him through the
chain of command and that as associate warden, he was
required to and followed the protocols as directed. (Id.)
Piccinini also states that as associate warden, he had “no
responsibility over phone access or tier, yard, chapel, and
law library schedules at HDSP, and therefore did not deny
Cardenas-Ornelas access to . . . the yard.” (Id.) Piccinini
also states that the only interaction he had with Plaintiff
was “responding to certain grievances which are not at
issue in this lawsuit.” (Id.) Although Cardenas-Ornelas
claims that Piccinini denied several grievances, it does not
appear that he had a role in the grievances submitted to
this Court. (See ECF No. 84-1 at 64-79.) In his response
to Defendants’ motion for summary judgment, CardenasOrnelas does not provide further evidence regarding
Piccinini’s role in the relevant events. (See ECF No. 87.)
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Because Cardenas-Ornelas has not provided any
evidence that Piccinini had decision-making authority
regarding Cardenas-Ornelas’s yard time and was not
involved in the grievance responses, Piccinini is entitled
to summary judgment on this count.
F.
QUALIFIED IMMUNITY
Finally, Defendants argue that all Cardenas-Ornelas’s
claims are barred by qualified immunity. (ECF No. 84 at
23.) Defendants argue that Cardenas-Ornelas “cannot
meet his burden of showing that Defendants violated any
right, much less a right that was clearly established,” but
do not offer any arguments as to why they are entitled to
qualified immunity on this count. (Id.)
As explained above, there are genuine disputes of
material fact as to whether Warden Johnson violated
Cardenas-Ornelas’s Eighth Amendment rights by denying
him outdoor exercise for a prolonged period. And Ninth
Circuit case law as of 2020 clearly established that complete
deprivation of outdoor exercise for prolonged periods of
time constituted an objectively serious deprivation under
the Eighth Amendment. See Spain, 600 F.2d 189 at 199;
LeMaire, 12 F.3d at 1457; Allen, 40 F.3d 1001. Therefore,
Warden Johnson is not entitled to qualified immunity on
this count.
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IV. COUNT 2B: DENIAL OF YARD TIME
A.
EXHAUSTION
Defendants argue that Cardenas-Ornelas’s equal
protection claim is barred because he failed to exhaust
his administrative remedies. (ECF Nos. 84 at 9, 93 at
6.) NDOC Administrative Regulation (AR) 740 requires
inmates to complete a three-step grievance procedure,
which includes an informal grievance, a first-level
grievance, and a second-level grievance. AR 740.08-10.
Under the Prison Litigation Reform Act (“PLRA”),
“[n]o action shall be brought with respect to prison
conditions under . . . [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The PLRA requires “proper exhaustion” of
an inmate’s claims. Woodford v. Ngo, 548 U.S. 81, 90
(2006). This means that “a prisoner must complete the
administrative review process in accordance with the
applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court.” Woodford,
548 U.S. at 88.
The only limit to § 1997e(a)’s mandate is the one in its
text: An inmate need exhaust only such administrative
remedies as are “‘available.’” Ross v. Blake, 578 U.S.
632, 648 (2016). The PLRA does not require exhaustion
when circumstances render administrative remedies
“effectively unavailable.” See Eaton v. Blewett, 50 F.4th
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1240, 1245 (9th Cir. 2022); McBride v. Lopez, 807 F.3d 982,
987 (9th Cir. 2015) (as amended) (“[F]ailure to exhaust a
remedy that is effectively unavailable does not bar a claim
from being heard in federal court.”) “[W]here inmates
take reasonably appropriate steps to exhaust but are
precluded from doing so by a prison’s erroneous failure
to process the grievance, [the court has] deemed the
exhaustion requirement satisfied.” Fordley v. Lizarraga,
18 F.4th 344, 352 (9th Cir. 2021).
The failure to exhaust administrative remedies is
“an affirmative defense the defendant must plead and
prove.” Jones v. Bock, 549 U.S. 199, 204, 216 (2007). The
defendant bears the burden of proving that an available
administrative remedy was not exhausted. Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the defendant
makes that showing, the burden shifts to the inmate
to “show there is something in his particular case that
made the existing and generally available administrative
remedies effectively unavailable to him by ‘showing that
the local remedies were ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile.’” Williams
v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting
Albino, 747 F.3d at 1172).
A motion for summary judgment is typically the
appropriate vehicle to determine whether an inmate
has properly exhausted their administrative remedies.
Albino, 747 F.3d at 1169. “If undisputed evidence viewed
in the light most favorable to the prisoner shows a failure
to exhaust, a defendant is entitled to summary judgment
under Rule 56.” Id. at 1166. But “[i]f material facts are
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disputed, summary judgment should be denied, and the
district judge rather than a jury should determine the
facts.” Id.
The record indicates that Plaintiff complained in an
informal grievance, numbered 20063103224, on June
12, 2020 about protective custody inmates being denied
equal protection of the laws by being denied yard time
when other prison populations were being given yard
time during Covid-19. (ECF No. 84-1 at 74, 82-84.) This
grievance was responded to and denied. (Id. at 74, 85.)
Plaintiff then filed a first level grievance regarding
the same issue on August 6, 2020. (Id. at 82.) This was
responded to and denied. (Id. at 75, 81.) Plaintiff then
attempted to submit a second level grievance on August
28, 2024. (Id. at 118.) An Improper Grievance Memo states
that this grievance was rejected because Plaintiff failed
to attach a “DOC 3098 Improper Grievance Memo” to
the grievance. (Id. at 117.) Handwritten on the Improper
Grievance Memo it says “HDSP Officials have possession
of this DOC 3089 already” and “I am unable to submit
documents because HDSP officials have possession . . .”
above what appears to be Plaintiff’s signature. (Id.) It
appears that Plaintiff submitted another second level
grievance on October 16, 2020, which was rejected as
improper, stating, stating that a Second Level had already
been submitted, and to “Please be patient and wait for an
official response to your Second Level Grievance under
this log number.” (Id. at 119-20.) Plaintiff’s second level
grievance was responded to on November 11, 2020, and
was denied. (Id. at 76.)
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The record is sufficient to create a genuine dispute as
to whether Cardenas-Ornelas exhausted his remedies as
to his equal protection claim. Thus, Defendants’ motion for
summary judgment on the basis of exhaustion is denied
as to Count 2B.
B. EQUAL PROTECTION
“To state a claim under 42 U.S.C. § 1983 for a
violation of the Equal Protection Clause of the Fourteenth
Amendment a plaintiff must show that the defendants
acted with an intent or purpose to discriminate against
the plaintiff based upon membership in a protected
class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir.
2013) (citation and internal quotation marks omitted). To
establish a violation of the Equal Protection Clause, the
prisoner must present evidence of discriminatory intent.
See Washington v. Davis, 426 U.S. 229, 239–40 (1976);
Serrano, 345 F.3d at 1082.
This Court allowed Cardenas-Ornelas to proceed with
an equal protection claim that Defendants Portillo, Owens,
Warden Johnson, Struck, and Piccinini provided other
inmates at HDSP with yard time while denying Plaintiff
yard time, and used Covid-19 as a baseless pretext to do
so. (ECF No. 12 at 15-16.) Cardenas-Ornelas claims that
while his unit was denied yard time, Defendants permitted
“every other [unit] within the NDOC to continue receiving
exercise, including General Population, Administrative
and disciplinary segregation units.” (ECF No. 1-1 at
15.) The restrictions applied only to “inmates housed in
protective segregation, and restrictions were imposed
only on those activities which benefited the inmates.”
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Appendix C
(Id. at 15-16.) Cardenas-Ornelas further alleges that he
has been “told by a number of officers, including Portillo,
that Warden Johnson does not like protective segregation
(“P.S.”) inmates, and that this allows him to lock down the
P.S. units.” (Id. at 16.)
Defendants argue that Cardenas-Ornelas was not
treated differently because prisoners were all restricted
from accessing the yard when any prisoner in that unit
had contracted Covid-19. (ECF No. 12 at 14.) Defendants
argue that Cardenas-Ornelas has provided no evidence
that Defendants treated him differently than other
inmates in units exposed to Covid-19; and that when
they did deny yard time, they had a rational basis for
doing so: “Defendants were attempting to prevent the
spread of Covid-19.” (ECF No. 84 at 14.) However, the
only evidence that Defendants provide in their motion for
summary judgment is the declaration of Warden Johnson.
(See ECF No. 84 at 13-14.) Warden Johnson’s declaration
explains that “by June 23, 2020, inmates in units who did
not have persons suspected of contacted Covid-19 were
permitted to resume yard time,” but that Unit 9 remained
in quarantine “based on inmates in that unit having tested
positive for Covid-19.” (ECF No. 84-1 at 230.) Warden
Johnson states that “Units were quarantined based on
whether inmates in that Unit tested positive for Covid-19,
and therefore all inmates were treated equally.” (Id.)
Warden Johnson does not explain when members of Unit
9 were allowed out of quarantine. (See id.) Defendants do
not provide evidence to contradict Cardenas-Ornelas’s
claim that he was not allowed yard time until more than
a year later on July 27, 2021.
54a
Appendix C
Defendants point to Seaplane Adventures, LLC v.
County of Marin, where the Ninth Circuit held that a
county’s public health order restricting recreational flights
during the Covid-19 pandemic did not violate a seaplane
operator’s equal protection rights. Seaplane Adventures,
LLC v. Cnty. of Marin, 71 F.4th 724, 731 (9th Cir. 2023).
As Defendants point out, the Ninth Circuit in Seaplane
explained that under an equal protection “class of one”
claim, a plaintiff must demonstrate that the defendant “(1)
intentionally (2) treated [plaintiff] differently than other
similarly situated [individuals or groups], (3) without a
rational basis.” Id. at 729 (citing Gerhart v. Lake Cnty.,
637 F.3d 1013, 1022 (9th Cir. 2011)). To preclude a grant
of summary judgment, the plaintiff must show that “a
rational trier of fact could find for [plaintiff] on all three
prongs of the ‘class of one’ claim.’” Id. at 729-30.
Defendants argue that the facts here are analogous
to those in Seaplane, and that Defendants’ restriction of
“non-essential activities to prevent the spread of Covid-19
clearly satisfies the rational basis test.” (ECF No. 84 at
14.) However, this argument fails to address CardenasOrnelas’s claims that prisoners were allowed to work in
crowded conditions indoors while being denied access
to outdoor exercise for a prolonged period. In Seaplane,
evidence in the record showed that the defendant had
“ample bases for making the distinction” between
recreational and non-recreational flights and banning
only the former. Seaplane, 71 F.4th at 731. As explained
above, Defendants’ arguments justifying the disparity
between yard time and work fail to establish the absence
of a genuine dispute of material fact. Here, a rational
55a
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trier of fact could find that Defendants’ reasons for
denying Cardenas-Ornelas and Unit 9 outdoor exercise
were pretextual and lacked rational basis, based on the
evidence Cardenas-Ornelas has provided regarding his
return to work. A rational trier of fact could also find
that Defendants treated Cardenas-Ornelas and Unit 9
differently than other similarly situated groups, namely
inmates in general population, administrative and
disciplinary segregation. Finally, a rational trier of fact
could find that this different treatment was intentional,
based on Cardenas’s claims regarding Warden Johnson’s
dislike of protective segregation inmates and Defendants’
failure to refute these claims.
C.
PARTICIPATION
Defendants offer the same arguments regarding
participation for this count as the first. (ECF No. 84 at 22.)
For similar reasons, the Court grants summary judgment
for defendants Portillo, Owens, Struck, and Piccinini, but
denies summary judgment for defendant Warden Johnson
on this basis.
While Plaintiff alleges that he had many conversations
regarding this issue with Defendants Portillo and Owens,
and that all Defendants implemented the lockdown
program depriving him of yard time, there is no indication
that any Defendants besides Warden Johnson had
authority in implementing this policy. (ECF No. 1-1 at
12, 16). The record indicates that Struck responded to
Plaintiff’s first level grievance with regard to denial of
outdoor exercise. (ECF No. 84-1 at 74.) It also indicates
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that Piccinini authored multiple “Improper Grievance
Memos” to Plaintiff related to this claim. (Id. at 100, 105,
117, 119.) While his role is unclear, Portillo’s name appears
on one of Plaintiff’s first level grievances. (Id. at 122.)
Because Plaintiff has not presented any evidence that
these Defendants participated in any manner beyond
implementation of a policy that they had no authority
to change and responding to grievances, there is no
genuine dispute of fact as to their personal participation.
“Where the defendant’s only involvement in the allegedly
unconstitutional conduct is ‘the denial of administrative
grievances or the failure to act, the defendant cannot be
liable under § 1983.’” Grenning v. Klemme, 34 F. Supp. 3d
1144, 1157 (E.D. Wash. 2014) (quoting Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999)); see also Jackson v.
State of Nevada, No. 2:16-cv-00995-APG-NJK, 2019 WL
6499106, at *7 (D. Nev. Dec. 3, 2019)(“[M]erely denying
a grievance without some decision-making authority
or ability to resolve the underlying issue grieved is not
enough to establish personal participation.”)
Accordingly, the Court grants summary judgment
for Defendants Portillo, Owens, Struck, and Piccinini on
this claim but denies summary judgment as to Warden
Johnson.
D.
QUALIFIED IMMUNITY
Defendants make the same general argument
regarding qualified immunity for all claims. (ECF No.
84 at 23.) As discussed above, there are genuine disputes
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of material fact as to whether Warden Johnson violated
Cardenas-Ornelas’s equal protection right by denying
Cardenas-Ornelas’s unit access to the yard while allowing
other units access to the yard. Furthermore, it is clearly
established that a prisoner can assert a class-of-one equal
protection claim by showing they were treated differently
from other similarly situated prisoners and that there
was no rational basis for the difference in treatment. See
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Therefore, Defendant Warden Johnson is not entitled to
summary judgment on this claim on this basis.
V. COUNT 4: COVID-19 COME TO WORK POLICY
A.
EXHAUSTION
Defendants argue that Plaintiff’s Eighth Amendment
claim alleging a policy requiring officers to come to work
after having reported contact with individuals who had
contracted Covid-19 is barred because he failed to exhaust
his administrative remedies. (ECF No. 84 at 9.)
Upon review of the grievance records (ECF No. 84-1),
it does not appear that Plaintiff brought any grievances
regarding a policy requiring officers to come to work after
having been exposed to COVID-19.
Because Defendants have met their burden of showing
an absence of genuine dispute of fact on this issue, the
claim is dismissed. The Court grants Defendants’ motion
for summary judgment on Count 4.
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VI. COUNT 5: MAIL DELAY
The Court allowed Cardenas-Ornelas to proceed with
his claim that Officer Johnson deliberately interfered
with the delivery of his mail in February 2020. (ECF No.
12 at 26.) Plaintiff alleges that Officer Johnson delivered
mail from his attorney dated February 4 on February
21—a delay of approximately 17 days—interfering with
Plaintiff’s ability to contact his lawyer and satisfy a
judge’s order to timely comply with an order. (ECF No.
12 at 23-24.) As a result of Johnson’s failure to provide the
legal mail within the 24-hour required period, Plaintiff
claims that he was unable to properly research and write
a response. (ECF No. 12 at 24.)
Defendants argue that Plaintiff has “no admissible
evidence that Officer Johnson withheld his legal mail”
because the mail was received at HDSP on February
20 and Officer Johnson delivered the mail to Plaintiff on
February 21. (ECF No. 84 at 20.)
The record shows that the letter from Plaintiff’s
attorney, David K. Neidert, was dated February 4, 2020.
(ECF No. 87-1 at 80.) In the letter, Mr. Neidert informed
Plaintiff that because of a decision by Judge Du on
January 31, 2020, Plaintiff had 30 days to take action to
avoid dismissal of his case. (Id.) Because Judge Du had
found that one of Plaintiff’s claims was unexhausted in
state court, Mr. Neidert explained that Plaintiff could
do one of two things to avoid dismissal (which would
be “catastrophic to [his] case.”) (Id.) Mr. Neidert asked
Plaintiff to sign the document enclosed so that he could
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file it with the court to “get your petition moving again.”
(Id. at 81.)
The stamp on the envelope was dated February
4, 2020. (Id. at 76.) In Warden Johnson’s response to
Plaintiff’s grievance, he explains that this is a “printed
stamp which identifies when the stamp was printed, not
mailed.” (ECF No. 84-1 at 78.) The NDOC legal form does
not show when the mail was received by HDSP. (Id.) The
form indicates that the mail was received by CardenasOrnelas on February 21, 2020. (Id.)
In an informal grievance filed March 5, 2020, Plaintiff
complained about the delay as being in violation of
administrative regulations and his “First Amendment
right to be free from interference of access to Courts.”
(ECF No. 84-1 at 77.) The grievance was denied, and
Cardenas-Ornelas filed a first level grievance reiterating
his complaint. (Id.) Warden Johnson responded to that
grievance, admitting that the officer “did not follow
protocol as he failed to date stamp the envelope [ ] upon
receipt at [HDSP].” (Id. at 78.) Warden Johnson stated
that this was “unacceptable” and would result in the officer
receiving “training to ensure he clearly understands
Department Policy and his responsibility to ensure he
properly processes incoming mail[.]” (Id.) Because there
was no date stamp on the envelope, Warden Johnson
was “unable to prove or disprove [Plaintiff’s] claim” that
the letter for held for more than twenty-four hours. (Id.)
Warden Johnson also did not identify the officer involved
by name. (Id.)
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In his declaration, Officer Johnson asserts that in
February 2020, he had “no responsibility for processing
incoming mail or logging incoming mail.” He further
states that he “delivered mail to inmates on the same day
[he] received it” and “never delayed delivering legal mail,
but followed the guidelines set forth in NDOC AR 722 and
750.” (ECF No. 84-1 at 225.)
The record does not clearly establish whether the
delay occurred before the letter arrived at HDSP or after
the letter arrived; whether Officer Johnson or another
officer was responsible for the failure to stamp the mail
upon receipt; or (if the letter arrived at HDSP before
February 20) whether Officer Johnson or another officer
was responsible for the delay. But viewing the facts in
the light most favorable to Cardenas-Ornelas, a rational
finder of fact could conclude that Officer Johnson delayed
delivery of Plaintiff’s legal mail.
A.
FIRST AMENDMENT
Prisoners have “a First Amendment right to send and
receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.
1995) (per curiam). Prisoners also have a constitutional
right of access to the courts. See Lewis v. Casey, 518 U.S.
343, 346 (1996). To establish a violation of the right of
access to the courts, a prisoner must establish that he or
she has suffered an actual injury. See Lewis, 518 U.S. at
349; Nasby v. Nevada, 79 F.4th 1062, 1056 (9th Cir. 2023);
Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999).
Defendants point to two Ninth Circuit cases finding
that incidents of mishandling or delaying mail did not
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violate the First Amendment. (ECF No. 84 at 20.) In
Crofton, the court found that a temporary delay of the
plaintiff’s publications, resulting from the prison official’s
security inspection, did not violate his First Amendment
rights. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999). In
Stevenson, the court found that a prison official’s conduct
in handing legal mail to a guard, who then opened the
mail outside the inmate’s presence, was negligent but
not unconstitutional. Stevenson v. Koskey, 877 F.2d 1435,
1441 (9th Cir. 1989). Both cases are distinguishable from
the facts of this case, which involve the alleged delay of
legal mail.
Defendants also argue that Cardenas-Ornelas cannot
establish that Officer Johnson’s delay caused actual harm.
(ECF No. 84 at 21.) In his complaint, Cardenas-Ornelas
argues that this delay meant that Plaintiff was “unable to
properly research and write a response.” (ECF No. 1-1 at
31.) This was “made worse by the fact that he could not get
an appointment with the law library.” (Id.) In his response
to their motion for summary judgment, Cardenas-Ornelas
reiterates his access to court claim, but does not argue
that the delay caused harm. (See ECF No. 1-1 at 16.)
Cardenas-Ornelas does not claim that he was unable to
respond to his attorney or the court before the required
deadline, or that the delay resulted in an adverse ruling.
Because Cardenas-Ornelas has failed to allege facts
sufficient to create a genuine dispute of material fact as
to whether the delay in receiving his legal mail resulted in
actual harm, Defendants’ motion for summary judgment
on Count 5 is granted.
62a
Appendix C
VII.
A.
COUNT 6A: PHONE CALL BAN
EXHAUSTION
Defendants argue that Plaintiff’s federal and state
claims regarding a ban on phone calls are barred because
he failed to exhaust his administrative remedies. (ECF
No. 84 at 9.)
Upon review of the grievance records (ECF No. 84-1),
it does not appear that Plaintiff brought any grievances
regarding a ban on phone calls.
Because Defendants have met their burden of showing
an absence of genuine dispute of fact on this issue, the
claim is dismissed. The Court grants Defendants’ motion
for summary judgment on Count 6A.
VIII. COUNT 6B: PHONE CALL BAN
A.
EXHAUSTION
Defendants argue that Plaintiff’s equal protection
claims regarding denial of phone calls are barred because
he failed to exhaust his administrative remedies. (ECF
No. 84 at 9.)
Upon review of the grievance records (ECF No. 84-1),
it does not appear that Plaintiff brought any grievances
regarding the denial of phone calls.
63a
Appendix C
Because Defendants have met their burden of showing
an absence of genuine dispute of fact on this issue the
Court grants Defendants’ motion summary judgment on
Count 6B.
IX. CONCLUSION
It is therefore ordered that Defendants’ motion for
summary judgment (ECF No. 84) is DENIED as to
Plaintiff’s Eighth Amendment and Equal Protection
claims regarding denial of outdoor exercise (Counts 2A
and 2B) against Warden Johnson, and GRANTED as to
Defendants Portillo, Owens, Struck, and Piccinini.
Defendants’ motion for summary judgment (ECF No.
84) is GRANTED as to Plaintiff’s other claims (Counts
4, 5, 6A, and 6B).
Plaintiff’s claim regarding deprivation of outdoor
exercise in violation of the Eighth Amendment and Equal
Protection clause (Counts 2A and 2B) will proceed against
Defendant Warden Johnson. All other Defendants are
dismissed from this case.
DATED THIS 30th day of September 2024.
/s/ Anne R. Traum
Anne R. Traum
United States District Judge
64a
APPENDIX D —Appendix
ORDER D
OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED APRIL 22, 2026
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-6755
LUIS CARDENAS-ORNELAS,
Plaintiff-Appellee,
v.
CALVIN JOHNSON; et al.,
Defendants-Appellants,
and
J. ALCOCK AND JULIO CALDERIN,
Defendants.
Filed April 22, 2026
ORDER
D.C. No. 2:21-cv-00030-ART-MDC
District of Nevada, Las Vegas
Before: BENNETT, SANCHEZ, and H.A. THOMAS,
Circuit Judges.
65a
Appendix D
Appellant Warden Calvin Johnson filed a petition
for panel rehearing and rehearing en banc on March
27, 2026. Dkt. No. 49. Appellee Luis Cardenas-Ornelas
also filed a petition for panel rehearing and rehearing
en banc on March 30, 2026. Dkt. No. 50. Judge Bennett,
Judge Sanchez, and Judge H.A. Thomas voted to deny the
Appellant’s petition for panel rehearing and rehearing en
banc, and also to deny the Appellee’s petition for panel
rehearing and rehearing en banc. The full court has been
advised of both petitions for rehearing en banc, and no
judge has requested a vote to rehear the matter en banc.
See Fed. R. App. P. 40.
The petitions for panel rehearing and rehearing en
banc are DENIED.
66a
Appendix
E
APPENDIX
E — RELEVANT
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
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