Petition for Writ of Certiorari — Lewis v. Johnson

No- 664941 JAN 3 0 2001

In The ORRQE OF THE CLERK

Supreme Court of the United States

¢

SAMUEL LEWIS, former Director of the

Arizona Department of Corrections, in his official

and individual capacities; et al.,

Petitioners,

V.

DENNIS JOHNSON, et al.,

Respondents.

TERRY STEWART, Director of the Arizona

Department of Corrections, in his official

and individual capacities; et al.,

Petitioners,

We

LEROY BACA, et al.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

PETITION FOR WRIT OF CERTIORARI

4

JANET NAPOLITANO

Arizona Attorney General

THomas J. DENNIs*

Bruce L. SKOLNIK

Assistant Attorneys General

1275 W. Washington

Phoenix, Arizona 85007-2926

(602) 542-3333

Counsel for the Petitioners

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

740

QUESTION PRESENTED

Whether Whitley v. Albers, 475 U.S. 312 (1986), and

the deference it affords to decisions by prison officials,

applies not only to Eighth Amendment claims challeng-

ing actions by prison officials to end prison riots, but also

to claims challenging conditions of confinement caused

by extraordinary security measures in a riot’s immediate

aftermath, when prison officials believe such measures

are necessary to identify and segregate participants in

order to fully restore and maintain order.

il

PARTIES TO THE PROCEEDINGS BELOW

Lewis v. Johnson (hereinafter “the Johnson Lawsuit”) -

Petitioners are the following officials of the Arizona

Department of Corrections (“ADOC”): Samuel Lewis, for-

mer ADOC Director; Terry Stewart, current ADOC Direc-

tor; Deputy Warden Glenn Davis, Arizona State Prison

Complex (“ASPC”) — Safford; Deputy Warden John Foote,

ASPC - Safford; Captain John Abbl; Correctional Service

Officer (“CSO”) Nations; CSO Macias; CSO Flores; Ser-

-geant Hull; Lieutenant Blackie Hassenzeller; Joe

Hawkins; Matthew Proto; Mark Wiiey; Dennis Killa;

James Bahn; Dwayne Morman; Dennis Grogg; Robert

Stalder; and J. C. Keeney.

Respondents are the following eight present or for-

mer ADOC inmates who sued individually and on behalf

of all others similarly situated: Dennis Johnson, Lawrence

E. Cottle, Elias Gutierrez, Leonard Todek, John Pilafas,

Robb Steir, Rodney Warner, and Gary Elmore.

Stewart v. Baca (hereinafter “the Baca Lawsuit”) -

Petitioners are the following ADOC officials: Terry Stew-

art, ADOC Director; former Warden Bill Gotcher, ASPC -

Safford; Deputy Warden Frank Terry, ASPC — Safford,

Tonto Unit; CSO Ortiz; Captain John Abbl; CSO

Thompson; Sergeant Amarillas; Matthew Proto; Dennis

Grogg; CSO Darren McWhorter; Armando Amarillas; and

Dwayne Morman.

iii

PARTIES TO THE PROCEEDINGS BELOW - Continued

Respondents are the following six present or former

ADOC inmates who sued individually and on behalf of

all others similarly situated: Leroy Patrick Baca, Eric

Baker, Victor Lawrence Farber, Jr., Troy Hamilton, Paul

Large, and Larry G. Harper.

iv

TABLE OF CONTENTS

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STATEMENT OF JURISDICTION................... 1

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS TO GRANT THE PETITION ............ 9

1. The Court of Appeals’ Decision Conflicts with

Prior Decisions of this Court on an Important

re ree ee 9

2. The Ninth Circuit’s Decision Conflicts with the

Ninth Circuit’s Own Precedent, as well as Deci-

sions of Other Circuit Courts of Appeals..... 16

Prey rer ere ten nee eee 20

Vv

TABLE OF AUTHORITIES

Page

CasEs

Bell v. Wolfish, 441 U.S. 520 (1979) ...........0eeeeee 13

Campbell v. Grammer, 889 F.2d 797 (8th Cir. 1989) ...15, 19

Campbell v. Sikes, 169 F.3d 1353 (11th Cir. 1999) ..... 19

Duran v. Elrod, 760 F.2d 756 (7th Cir. 1985).......... 15

Estelle v. Gamble, 429 U.S. 97 (1976) .......-...000- ae

Helling v. McKinney, 509 U.S. 25 (1993)...........46 10

Hewitt v. Helms, 459 U.S. 460 (1983)................. 19

Hudson v. McMillian, 503 U.S. 1 (1992) .... 9, 10, 12, 14

Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) ........ 11

LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993) ....16, 17

Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994) ..17, 18

Procunier v. Martinez, 416 U.S. 396 (1974)............ 15

Rhodes v. Chapman, 452 U.S. 337 (1981)........... 10, 11

Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994) .. 15, 18, 19

Stengel v. Ellis, 916 F.2d 423 (8th Cir. 1990).......... 19

Stewart v. Rhodes, 473 F.Supp. 1185 (S.D. Ohio

BOTT on iv nninca ds denne ndeencgeses eaweiea 15

Thornburgh v. Abbott, 490 U.S. 401 (1989)............ 15

Turner 0. Safley, 462 US. 76 CGG7) i vic cide ccgeciicns 15

Whitley v. Albers, 475 U.S. 312 (1986)............ passim

Williams v. Burton, 943 F.2d 1572 (11th Cir. 1991)....15, 19

Wilson v. Setter, S01 US. 296 CA991) 6. csacccesccccss« 10

vi

TABLE OF AUTHORITIES - Continued

Page

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OPINIONS BELOW

The opinion of the court of appeals is reported at 217

F.3d 726. Appendix (App.) at 1. The judgments of the

United States District Court for the District of Arizona

granting summary judgment in favor of Petitioners and

against Respondents in Johnson v. Lewis, App. at 23, and

Baca v. Stewart, App. at 34, are not reported.

+

STATEMENT OF JURISDICTION

On June 29, 2000, the court of appeals entered the

judgment from which review is sought. App. at 1. On

October 2, 2000, the court of appeals denied rehearing.

App. at 46. On December 26, 2000, Petitioners’ time to file

a petition for a writ of certiorari was extended to January

30, 2001. App. at 50. This Court has jurisdiction under 28

U.S.C. § 1254(1).

¢

CONSTITUTIONAL AND

STATUTORY PROVISIONS

This matter involves the following constitutional and

statutory provisions:

The Eighth Amendment to the United States Consti-

tution provides as follows: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”

42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

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 proceedings for redress.

¢

STATEMENT OF THE CASE

The consolidated appeal below arose from two sepa-

rate class action lawsuits challenging the actions of

Petitioners (“ADOC Prison Officials”) during and imme-

diately after two riots that occurred at two separate units

of the Arizona State Prison Complex in Safford in 1995.

The factual background of each riot is discussed below.

A. Material Facts

1. The Johnson Lawsuit. On the evening of August

14, 1995, inmates dissatisfied with conditions at the 638

bed minimum security Graham Unit of the Arizona State

Prison Complex in Safford began a riot. They set fire to

tents where 100 of the inmates lived and to several modu-

lar structures in the unit, looted the unit’s store, and

destroyed windows, toilets, and other facilities. App. at

3-4, 23. The damages totaled in excess of one million

dollars. App. at 19.

The prison’s Tactical Support Unit responded to the

riot by first requesting over the public address system

Eee

that all non-participating inmates assemble at a desig-

nated area; only 21 inmates reported. App. at 4, 24. The

Tactical Support Unit then entered the burning unit at

8:30 p.m., exploding diversionary devices in the buildings

' before entering. App. at 24. The Tactical Support Unit

officers met little resistance from the prisoners in the

buildings, but encountered prisoners throwing rocks and

soda cans in the open yard. Id. When the inmates failed to

follow orders to stop throwing things, the Tactical Sup-

port Unit officers were forced to fire tear gas, knee

knockers, and stinger balls at the rioters. Id. By 11:15

p.m., the Tactical Support Unit had evacuated all of the

buildings, accounted for each inmate, and gathered all of

the inmates handcuffed, shackled, and lying face down,

on an open grassy area of the yard. App. at 4, 24.

Prison officials continued to hold the inmates in

handcuffs, though not shackled, for the next four days in

the prison yard while they investigated the disturbance.

Id. Specifically, the investigation included an exhaustive

search of the entire unit, including all living spaces and

personal lockers, for weapons and other contraband.

App. at 5. Additionally, eleven investigators “worked

around the clock to interview each inmate individually.”

Id. The investigation was necessary to identify and segre-

gate those inmates who participated in the riot while, at

the same time, holding all the inmates in the safest and

most secure area of what remained of the prison unit.

App. at 4. As the court of appeals’ opinion recognizes,

prison officials had limited options under these difficult

circumstances:

Placing inmates back inside the eight dormito-

ries would have fragmented staff and allowed

inmates access to objects, possibly including

shanks, that could be used to cause injury. No

single building was large enough to hold all of

the inmates except the Multi-Purpose Building,

which housed a basketball court and had only

one entrance. Although this building would

have provided shelter, prison officials consid-

ered it too dangerous to use under the circum-

stances because housing the entire inmate

population in a space of that size would have

created crowded conditions and thwarted their

need to maintain complete physical control over

the prisoners in the wake of the riot.

Id.

During the four_days that the inmates were detained

outside, they were exposed to afternoon high tempera-

tures of up to 94 degrees, nighttime low temperatures of

70 degrees, and one night of rain. App. at 5. Additionally,

during the hours immediately after the riot, ADOC

_ Prison Officials did not allow inmates to move from a

prone position for any reason, causing some of the

inmates to urinate and defecate into their clothing. Id.

Although prison staff brought two portable toilets onto

the yard early on the morning after the riot, inmates

alleged they were inadequate. Id. Some time later that

same day, the situation improved when some of the

prison unit’s indoor toilet facilities that were damaged by

inmates during the riot were repaired and made available

to them. App. at 5-6. Inmates also complained that they

were served spoiled sack lunches and, until the second

day after the riot, had no drinking water, and thereafter

only restricted access to drinking water. App. at 6.

At the conclusion of the investigation on the fourth

day after the riot, ADOC Prison Officials returned the

inmates to their living quarters, and reestablished “nor-

mal prison conditions.” Id.

2. The Baca Lawsuit. On December 28, 1995, at

approximately 5:50 p.m., widespread racially motivated

fighting erupted in the 369 bed Tonto Unit at the Arizona

State Prison Complex in Safford. App. at 6, 34. The

inmates involved in the rioting were fighting, throwing

rocks, and destroying property. Id.

Again, the prison’s Tactical Support Unit responded

to the riot, entering the unit at approximately 6:48 p.m.

and ordering the inmates to lie on the ground. App. at 34.

At 8:00 p.m., the Tactical Support Unit began the process

of clearing all buildings in the unit and escorting inmates

to an outdoor ballfield where they cuffed the inmates

with knee and wrist restraints and ordered them to lie on

the ground. App. at 6, 34. By 12:10 a.m., ADOC Prison

Officials had accounted for and secured all prisoners on

the ballfield. Id.

As before, ADOC Prison Officials kept the inmates

outdoors while an investigation ensued, including a

search of the buildings and an attempt to identify and

segregate those inmates who had participated in the riot.

App. at 6. This time, the investigation was completed

after 17 hours and officials began returning the inmates

to their dormitories at approximately 1:00 p.m. the day

after the riot. App. at 6-7.

During these winter hours, the overnight tempera-

ture fell to 22 degrees. App. at 7. If an inmate needed to

urinate, prison officials allowed him to crawl a short

distance from where he lay to relieve himself on the

ground, sometimes causing urine to run onto other

nearby inmates. Id. At approximately 5:00 a.m., prison

officials allowed the inmates to rise and stretch, but when

some inmates refused orders to return to the ground,

prison officials had to force compliance with tear gas,

stinger balls, and knee knockers. App. at 7, 35. After the

second disturbance had ended, prison officials assigned

some inmates to go into the dormitories to get blankets

for the rest. App. at 7.

B. Proceedings Below

On June 16, 1996, inmates filed two separate class

action complaints in the United States District Court for

the District of Arizona under 42 U.S.C. § 1983 on behalf of

the Graham and Tonto Unit inmates who were present

during the riots. Plaintiffs in each case asked the court to

declare that the actions of the ADOC Prison Officials

violated their rights under the Eighth Amendment to the

United States Constitution. In addition, Plaintiffs sought

an injunction against the future use of the alleged cruel

and unusual actions ascribed to the Defendants, as well

as compensatory and punitive damages. The district

court exercised jurisdiction pursuant to 28 U.S.C. § 1331.

The district court granted summary judgment in

favor of the ADOC Prison Officials in each case. App. at

23, 34. In separate but similar rulings, the district court

applied the heightened standard of wantonness in

Whitley v. Albers, 475 U.S. 312, 320-21 (1986), which turns

on “whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadis-

tically for the very purpose of causing harm,” to test the

actions of the ADOC Prison Officials in quelling the riots.

App. at 27-28, 38-40. The district court stated that it

would apply a Whitley-type standard to the post-riot

actions of the ADOC Prison Officials, because during

those periods there were “concerns of control and safety

that were more important than the typical concerns of

administering the prison.” App. at 41. Ultimately, how-

ever, because the district court ruled that the post-riot

claims were not objectively of sufficient seriousness to

constitute an Eighth Amendment violation, it did not

reach the question of the ADOC Prison Officials’ subjec-

tive intent. App. at 32-33, 44. Plaintiffs appealed to the

Ninth Circuit pursuant to 28 U.S.C. § 1291.

A divided panel of the Ninth Circuit Court of

Appeals reversed the district court’s decision. First, the

majority found that the types of harm alleged created fact

questions precluding summary judgment on the issue of

whether they were objectively serious enough to satisfy

the first prong of the Eighth Amendment test. App. at

11-12. ADOC Prison Officials do not address this issue in

this Petition. Then, because the district court had indi-

cated its view that a variation of Whitley applied to the

second, subjective prong of the Eighth Amendment test,

the court of appeals addressed this issue. App. at 14. The

court agreed with the district court that the Whitley stan-

dard applied to the ADOC Prison Officials’ immediate

response to quell the prison riots. App. at 14-15. Nev-

ertheless, while acknowledging that prison officials had

limited options during the post-riot investigation periods,

App. at 4, the majority held that the ADOC Prison

Officials were not entitled to application of the height-

ened Whitley standard during these post-riot periods:

In our view, the exigent circumstances the

prison officials faced during the riots persisted

until the officials were able successfully to

remove the prisoners from the buildings and

secure them in the prison yard. . . . When the

inmates were in the yard, however, they were

handcuffed, prone, and under armed guard. In

these circumstances, the inmates presented no

further danger to prison staff, the public, or

each other, and prison officials were no longer

required to make split-second, life-and-death

decisions.

App. at 14-15. The court instead applied the “deliberate

indifference” standard applicable to normal prison “con-

ditions of confinement” cases. App. at 15.

Judge Sneed dissented, reasoning that the majority

ignored the constraints that the ADOC Prison Officials

faced during the post-riot sorting-out periods and that it

incorrectly presumed that conditions had returned to nor-

mal the moment the officials were able to secure the

inmates on the prison yards. App. at 22. Because in the

aftermath of the two riots, the ADOC Prison Officials

were confronted with constraints materially different

than those generally faced in prisons, Judge Sneed would

have applied the Whitley standard to the inmates’ post-

riot detention treatment. App. at 17-22.

Defendants petitioned the court of appeals for an en

banc rehearing. Senior Judge Sneed recommended grant-

ing the Petition and an active judge requested a vote on

whether to rehear the matter en banc. App. at 48. The

Petition was denied because it failed to receive a majority

of the votes of the active judges. Id.

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Vv

REASONS TO GRANT THE PETITION

The court of appeals erroneously determined that the

Whitley standard did not apply to the ADOC Prison Offi-

cials’ actions in the immediate aftermaths of the riots

even though the officials took those actions to restore

security to the prison and to maintain discipline until

instigators and participants could be identified and segre-

gated. This Court should grant the Petition to clarify

what was implicit both in Whitley and Hudson v.

McMillian, 503 U.S. 1 (1992) - that is, that the Whitley

standard applies not only to prison officials’ use of force

to quell a riot, but also to prison officials’ extraordinary

actions to restore and maintain discipline in the aftermath

of a serious prison disturbance. The Court's clarification

is critical to provide prison officials, who must maintain

security to protect their own lives and the lives of other

staff and inmates in extremely hostile and volatile envi-

ronments, with the leeway necessary to make difficult

and quick decisions when they must act without the

benefit of hindsight.

1. The Court of Appeals’ Decision Conflicts with

Prior Decisions of this Court on an Important

Federal Question.

The Ninth Circuit Court of Appeals directed the dis-

trict court to apply deliberate indifference as the standard

10

to judge the decisions of the ADOC Prison Officials dur-

ing the difficult and potentially explosive post-riot situa-

tions with which they were confronted. This is contrary

to this Court’s clear guidance in Whitley and Hudson. In a

line of cases beginning with Estelle v. Gamble, 429 U.S. 97

(1976), this Court has established and clarified the proper

standards for alleged violations of the Eighth Amend-

ment by prison officials. The test involves both objective

and subjective components. Under the objective compo-

nent, the injury actually inflicted must be sufficiently

serious to warrant Eighth Amendment protection. See-

Wilson v. Seiter, 501 U.S. 294, 298 (1991); Rhodes v. Chap-

man, 452 U.S. 337, 347-49 (1981). The subjective compo-

nent of the Eighth Amendment test requires that the

plaintiff show that the defendant acted with “wanton-

ness.” Wilson, 501 U.S. at 298-99. The standard necessary

to establish wantonness varies with the context of the

alleged constitutional violation. Whitley, 475 U.S. at 320.

In Estelle, this Court held that prison officials who

fail to attend to serious medical needs may be liable

under the Eighth Amendment if they exhibit “deliberate

indifference” to the condition. 429 U.S. at 104. This stan-

dard is appropriate because providing inmates with med-

ical care ordinarily does not conflict with competing

administrative concerns. Hudson, 503 U.S. at 5-6 (citing

Whitley, 475 U.S. at 320). This deliberate indifference test

is generally used to test Eighth Amendment claims alleg-

ing unconstitutional conditions of confinement. See

Wilson, 501 U.S. at 299, 302-03; Helling v. McKinney, 509

U.S. 25, 29-30 (1993).

In Whitley, the Court established a different standard

for the subjective wantonness component of the Eighth

————————————E

11

Amendment test when prison officials are required to

apply force in the face of an inmate uprising. Whitley, 475

U.S. at 320-21. The test is stringent, and asks “whether

force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the

very purpose of causing harm.” Id. (quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)) (internal quota-

tions and citations omitted).

In making the determination a court should consider

“the need for the application of force, the relationship

between the need and the amount of force that was used,

[and] the extent of injury inflicted.” Id._at 321 (quoting

Johnson, 481 F.2d at 1033) (internal quotations omitted).

“[E]qually relevant are such factors as the extent of the

threat to the safety of staff and inmates, as reasonably

perceived by the responsible officials on the basis of the

facts known to them, and any efforts made to temper the

severity of a forceful response.” Id. From these consider-

ations, “inferences may be drawn as to whether the use of

force could plausibly have been thought necessary, or

instead evidenced such wantonness with respect to the

unjustified infliction of harm as is tantamount to a know-

ing willingness that it occur.” Id.

The foundation of the Whitley standard is this Court's

admonition to all federal courts that the utmost deference

be given to prison officials when “the ever present poten- —

tial for violent confrontation and conflagration . . . ripens

into actual unrest and conflict... .” Id. at 321 (internal

citations omitted). In such situations, “ ‘a prison’s inter-

nal security is peculiarly a matter normally left to the

discretion of prison administrators’ ” and “carries special

weight.” Id. (quoting Rhodes, 452 U.S. at 349 n. 14.) A

12

heightened standard is appropriate because prison offi-

cials “confronted with a prison disturbance must balance

the threat unrest poses to inmates, prison workers,

administrators, and visitors against the harm inmates

may suffer if guards use force.” Hudson, 503 U.S. at 6.

This Court further explained in Whitley that “defer-

ence extends to a prison security measure taken in

response to an actual confrontation with riotous inmates,

just as it does to prophylactic or preventive measures

intended to reduce the incidence of these or any other

breaches of prison discipline. . . . [I]t requires that neither

judge nor jury freely substitute their judgment for that of

officials who have made a considered choice.” 475 U.S. at

322.

Later, in Hudson, this Court held that the heightened

Whitley standard applies to all allegations of excessive

use of force by prison officials, even those outside the riot

situation presented in Whitley. 503 U.S. at 7. As the Court

explained:

Many of the concerns underlying our holding in

Whitley arise whenever guards use force to keep

order. Whether the prison disturbance is a riot

or a lesser disruption, corrections officers must

balance the need “to maintain or restore disci-

pline” through force against the risk of injury to

inmates. Both situations may require prison offi-

cials to act quickly and decisively. Likewise,

both implicate the principle that “ ‘[p]rison

administrators . . . should be accorded wide-

ranging deference in the adoption and execution

of policies and practices that in their judgment

are needed to preserve internal order and disci-

pline and to maintain institutional security.’ ”

13

[Whitley,] 475 U.S., at 321-22, 106 S.Ct., at 1085

(quoting Bell v. Wolfish, 441 U.S. 520, 547, 99

S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)).

Id. at 6.

In this case, the court of appeals recognized that the

ADOC Prison Officials were attempting to restore order

and maintain security in extremely difficult circum-

stances, but did not apply the Whitley standard. Under

the court of appeals’ view, prison officials are entitled to

only normal levels of deference after riotous inmates are

handcuffed, prone, and under armed guard. App. at 15.

Deliberate indifference, however, applies to normal

prison “conditions-of-confinement” cases, not to the

treatment of inmates who are strictly confined and

restrained immediately following a riot.

The court of appeals’ decision dangerously under-

mines a cornerstone principle of Eighth Amendment

jurisprudence —- that prison officials receive the utmost

deference in dealing with heightened security needs.

Rather than analyzing “the extent of the threat to the

safety of staff and inmates, as reasonably perceived by the

responsible officials on the basis of the facts known to them,”

Whitley, 475 U.S. at 321 (emphasis added), the Court

substituted its judgment for that of the ADOC Prison

Officials by deciding that no further danger existed that

justified application of the Whitley standard. App. at

14-15.

The Whitley standard should apply to test the actions

of the ADOC Prison Officials in the aftermaths of the

riots when they reasonably believed it necessary to hold

the inmates outside and bound in order to fully restore

“_

14

order and prevent further rioting while investigators

worked around the clock to identify and segregate the

instigators of the riots. See Hudson, 503 U.S. at 6-7 (the

Whitley standard applies whenever a prison official is

accused of using excessive force, not only during riotous

situations, but also during “lesser disruption[s]”). It is

undisputed here that normal prison conditions had been

seriously disrupted by the riots, a disruption that per-

sisted for as long as it took ADOC Prison Officials to

identify and segregate participants before the other

inmates could safely return to their living quarters. The

actions complained of involved the “forced” restraint and

detention of the inmates in secure outdoor areas during

post-riot investigations. Because normal prison life was

severely disrupted, Hudson requires that the Whitley stan-

dard apply.

Furthermore, the court of appeals erroneously deter-

mined that Whitley did not apply after the riots ended

because Whitley applies only to force used to regain order

against emergent active hostilities, where “split-second,

life and death decisions” are necessary. App. at 15. This is

belied by the Whitley test itself, which refers not only to

the restoration of discipline, but to its maintenance. 475

U.S. at 320-21. It is also contrary to the Court’s statement

that the type of deference applicable to riot situations

applies equally to the “prophylactic or preventive mea-

sures” intended to reduce the possibility that a riot or

other breaches of prison discipline might reoccur. Id. at

322.

Finally, the court of appeals’ decision fails to recog-

nize the need to defer to the expertise of prison officials

to deal with the circumstances that existed in these cases.

15

Therefore, in a case where it acknowledged as an uncon-

troverted fact that prison officials had limited options in

the aftermaths of the uprisings, the court should have

recognized that it is the on-scene prison officials, and not

the courts, who have special expertise in prison matters.

See Turner v. Safley, 482 U.S. 78, 84 (1987) (“courts are ill-

equipped to deal with the increasingly urgent problems

of prison administration and reform”) (quoting Procunier

v. Martinez, 416 U.S. 396, 405 (1974), overruled on other

grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989)); Sims v.

Mashburn, 25 F.3d 980, 986 (11th Cir. 1994) (“The policy

itself reflects a well-developed and planned procedure in

a field where prison officials, not judges, are experts”);

Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir. 1991)

(“ ‘[I]t is clear that federal courts must defer in many

matters to the expert judgment of these administrators,

particularly in matters of internal security and order’ ”)

(quoting Stewart v. Rhodes, 473 F.Supp. 1185, 1187 (S.D.

Ohio 1979), aff'd, 785 F.2d 310 (6th Cir. 1986)); Campbell v.

Grammer, 889 F.2d 797, 801 (8th Cir. 1989) (“Courts should

be especially reluctant to interpose their hindsight when

the challenged conduct occurred during a prison distur-

bance”); Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985)

(because federal judges know little about the manage-

ment of prisons “it is unseemly for federal courts to tell a

State . . . how to run its prison system”).

Certiorari should be granted to correct the court of

appeals’ misapplication of this Court’s prior rulings.

16

2. The Ninth Circuit’s Decision Conflicts with the

Ninth Circuit’s Own Precedent, as well as Deci-

sions of Other Circuit Courts of Appeals.

In addition to straying from this Court’s governing

principles, the court of appeals’ decision conflicts with

decisions of other circuit courts of appeals holding that

the Whitley standard applies to heightened security mea-

sures taken by prison officials in response to prisoner

disruptions, other than ongoing riots. Indeed, the Ninth

Circuit’s opinion here stands in sharpest conflict with its

own earlier opinion in LeMaire v. Maass, 12 F.3d 1444 (9th

Cir. 1993), where another panel of the same court recog-

nized the need to apply the highest level of deference not

only to actions taken by prison officials to control a

dangerous in-progress prison disturbance, but also to

ensure that hostilities did not re-erupt after the initial

containment.

In LeMaire, Oregon prison officials forced highly

restrictive conditions upon an extremely dangerous and

disruptive inmate even when he was not misbehaving.

Those forced conditions included feeding the inmate Nut-

raloaf, restraining him in the shower and his cell, remov-

ing his clothing, and denying his outdoor exercise, etc. In

testing these limitations against the Eighth Amendment,

the Ninth Circuit quoted this Court’s language from

Whitley that official deference extends to “ ‘prophylactic or

preventive measures intended to reduce . . . breaches of prison

discipline’ ”. LeMaire, 12 F.3d at 1453 (quoting Whitley, 475

U.S. at 322) (emphasis in original).

The court then determined that the Whitley standard

applied because (1) “the kind of conduct against which

a

17

LeMaire lodge[d] his Eighth Amendment objections” was

“conduct designed by prison administrators to maintain

control over rebellious inmates;” (2) the security con-

straints confronting the defendant prison officials were

considerable; and (3) LeMaire’s complaints were “not so

much conditions of confinement or indifference to his

medical needs which do not clash with important govern-

mental responsibilities; instead, his complaint [was] lev-

eled at measured practices and sanctions either used in

exigent circumstances or imposed after considerable due

process and designed to alter LeMaire’s manifestly mur-

derous, dangerous, uncivilized, and unsanitary conduct.”

Id. at 1452-53. Significantly, the instant cases involved

only a few officers facing hundreds of disruptive inmates,

and not a single inmate as in LeMaire.

Like LeMaire, other circuits have used the Whitley

standard to judge prison officials’ actions to maintain

security and have not limited its application to the “split-

second, life and death decisions” that the court of appeals

found necessary to justify its application in this case. In

Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994), prison

officials were able to quickly quell an inmate flooding

disturbance. Rather than placing the inmates in any of

several habitable open detention units, the officials shack-

led the inmates to their cell doors standing ankle-deep in

the water as it was being cleaned up. As here, the plain-

tiff inmates challenged the conditions of their confine-

ment and claimed that they were denied basic hygiene

and served poorly-prepared food during their time of

forced restraint. In rejecting these claims, the court held:

Measuring prison officials’ conduct under [the

Whitley] standard applies in situations where

18

the prisoners have rioted, or when corrections

officers are merely attempting to maintain

order....

. . . Once the prisoners flooded the cell block,

the guards had to secure the prisoners so that

the trustees could mop up the water and pre-

vent physical damage to the prison facility. This

required that the prisoners be removed from the

cells and restrained appropriately. The guards

opened the cells and shackled each prisoner to

their cell. Being restrained in this manner for

three hours, although uncomfortable, does not

seem unreasonable given the circumstances.

17 F.3d at 1581-82 (footnote omitted).

The Eleventh Circuit dealt with a similar situation in

Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994). There, after

an inmate became disruptive, prison officials “stripped

down” his cell by removing his mattress, personal prop-

erty, blankets and all of his clothes except for his under-

shorts. His cell remained in this condition into the next

day, and he slept on the concrete floor. The court applied

the Whitley standard to the prison officials’ conduct, id. at

984, and reversed the district court’s finding in favor of

the inmate, reasoning as follows:

The question in this case boils down to a subjec-

tive judgment relative to when Sims had demon-

strated such a period of stable behavior and a

subjective judgment relative to the intervals at

which that question should be reevaluated.

Implicit in the actions of the officers in main-

taining the strip cell status is the judgment that

Sims did not sufficiently demonstrate a period

of stable behavior until sometime around 2:00

19

P.M. the following day. Giving these officials the

deference they are due requires that we accept

that judgment unless there is evidence justifying

its rejection. There is no such evidence in this

case. Similarly, a judgment that Sims should

have been reevaluated sooner finds no evidenti-

ary support in this record. A finding that some-

thing less than this 29 hour or so “cooling off”

period was sufficient fails to give the judgment

of these officials the deference they are due.

25 F.3d at 985. See also Campbell v. Sikes, 169 F.3d 1353,

1375-76 (11th Cir. 1999) (using the Whitley standard to test

the prolonged restraint of a disruptive inmate because

“the potential for a disturbance in the segregation unit

justified the continued use of the restraints and gag until

the officers were reasonably assured that the situation

had abated”); Williams v. Burton, 943 F.2d 1572, 1575-76

(11th Cir. 1991) (the court applied the Whitley standard to

the use of four-point restraints to a disruptive inmate

noting that “[o]nce restraints are initially justified, it

becomes somewhat problematic as to how long they are

necessary to meet the particular exigent circumstances,”

but deferred to prison officials on this issue because the

deference they were due extended to their “prophylactic

or preventive measures” under Whitley); Stengel v. Ellis,

916 F.2d 423, 426-27 (8th Cir. 1990) (court applied Whitley

and deferred to jail officials who restrained an inmate for

refusing to “show skin” while sleeping because it was

“not prepared to second-guess the jailers’ judgment given

the ‘broad administrative and discretionary authority’ the

federal courts accord prison authorities”) (quoting Hewitt

v. Helms, 459 U.S. 460, 467 (1983)); Campbell v. Grammer,

889 F.2d 797 (8th Cir. 1989) (court held that because

20

deference extends to post-riot “prophylactic or preven-

tive measures,” prison official’s failure to ensure that

inmates’ jumpsuits were returned following a disturbance

did not violate inmates’ rights).

Certiorari should be granted to resolve the conflict

between the court of appeals’ opinion in this case, and

the decisions of these other circuit courts.

a

CONCLUSION

This Court should grant the Petition for Writ of Cer-

tiorari.

Respectfully submitted,

JANET NAPOLITANO

Attorney General

THomasS J. DENNIs*

Bruce L. SKOLNIK

Assistant Attorneys General

1275 W. Washington

Phoenix, Arizona 85007-2926

(602) 542-3333

Counsel for the Petitioners

* Counsel of Record

January 30, 2001.

App. i

TABLE OF CONTENTS TO APPENDIX

Page

Opinion Reversing District Court Decision

Dated June 29, 2000 ........... eee seeeeeeeees App. 1

Order Granting Summary Judgment (Johnson)

Dated August 26, 1998..........---seeeeeeees App. 23

Order Granting Summary Judgment (Baca)

Dated August 26, 1998...........+-seeeeeeees App. 34

Order Denying Petition for Rehearing and Deny-

ing Petition for Rehearing En Banc

Dated October 2, 2000 ..........0-seeeeeeeeee App. 46

Letter Granting Extension of Time to File Petition

for Writ of Certiorari

Dated December 26, 2000.........--++ee+ee App. 50

App. 1

217 F3d 726

Cal. Daily Op. Serv. 5309, 2000 Daily Journal

D.A.R. 7059

United States Court of Appeals,

Ninth Circuit.

Dennis N. JOHNSON; Leonard Todek, individually

and on behalf of all others similarly situated;

Lawrence E. Cottle; John Pilafas, individually and on

behalf of all others similarly situated; Robb Steir,

individually and on behalf of all others similarly

situated; Rodney Warner, individually and on behalf of

all others similarly situated; Gary Elmore, individually

and on behalf of all others similarly situated; Elias

Gutierrez, Plaintiffs-Appellants,

Vv.

Samuel LEWIS, former director of the ADOC in his

individual capacity; Terry Stewart, Director of the

ADOC in his official and individual capacity; BILL

GOTCHER, former warden of the ASP at Safford in

his official and individual capacity; Glenn Davis,

Deputy Warden of ASP Safford in his official and

individual capacity; John Foote, Deputy Warden of the

ASP Safford in his official and individual capacity;

John Abbl, Captain DOC officer in his official and

individual capacity; CSO Nations, CSO Marcias, CSOII

Flores, SGT. Hull, DOC officers in their official and

individual capacities; Blackie Hassenzeller, Lieutenant,

a member of the ADOC Tactical Support Unit in his

official and individual capacity; John Doe 1-10, DOC

officers in their official and individual capacities; Joe

Hawkins; Matthew Proto; Mark Wiley; Dennis Killa; .

James Bahn; Dwayne Morman; Dennis Grogg; Robert

Stadler; J.C. Kenney, Defendants-Appellees.

Leroy Patrick BACA; Troy Hamilton, individually and

on behalf of all others similarly situated; Paul Large,

App. 2

individually and on behalf of all others similarly

situated; Eric Baker; Larry G. Harper, individually and

on behalf of all others similarly situated; Victor

Lawrence Farber, Jr., Plaintiffs-Appellants,

V.

Terry STEWART, Director of the ADOC in his official

and individual capacity; Bill Gotcher, former warden

of the ASP Safford in his individual and official

capacity; Frank Terry, deputy warden in charge of

Tonto Unit in his official and individual capacity; CSO

Ortiz, in his official and individual capacity; John

Abbl, Captain in his official and individual capacity;

CSO Thompson, in his official and individual capacity;

Amarillus, Sergeant in his official and individual

capacity; John Doe 1-10, CSOs in their official and

individual capacity; CSO Thompson; Matthew Proto;

Dennis Grogg; Darren McWhorter, CSOII; Armando

Amarillas; Dwayne Morman, Defendants-Appellees.

Nos. 98-16821, 98-16851.

Argued and Submitted Dec. 9, 1999

Filed June 29, 2000

Paul Gattone, Southern Arizona People’s Law Center,

Tucson, Arizona, for the plaintiffs-appellants.

Bruce L. Skolnik, Assistant Attorney General, Tucson,

Arizona, for the defendants-appellees.

Appeals from the United States District Court for the

District of Arizona.

Before: SNEED, PREGERSON, and W. FLETCHER,

Circuit Judges.

Opinion by Judge W. FLETCHER; Dissent by Judge

SNEED.

W. FLETCHER, Circuit Judge:

App. 3

These class actions arose from two disturbances in

the Arizona State Prison in Safford, Arizona: one in

August 1995 and the other in December of the same year.

Although the district court resolved the cases separately,

we consolidate them because they are factually similar

and present identical legal issues. In each case, prison

officials quelled the disturbance and then held all of the

inmates in the affected unit out-of-doors while they

investigated the incident and searched the prison build-

ings. The appellants, two classes of plaintiffs consisting of

the inmates who were held outside, brought class actions

against Arizona prison officials under 42 U.S.C. § 1983,

asserting that the conditions under which they were held

violated the Eighth Amendment's prohibition against —

cruel and unusual punishment. The district court granted

summary judgment for the defendant prison officials in

each case. We conclude that unresolved issues of fact

preclude summary judgment in both cases. We therefore

reverse and remand.

I

Because these cases were resolved at summary judg-

ment, we relate the facts in the light most favorable to the

prisoners as the non-moving parties. See Holmes v. Califor-

nia Army Nat'l Guard, 124 F.3d 1126, 1132 (9th Cir. 1997).

On August 14, 1995, the Graham Unit of the Arizona

State Prison in Safford, Arizona housed 638 inmates. One

hundred of these prisoners lived in tents; the rest were

housed in permanent dormitories. Dissatisfied with the

conditions in the tents, some of the inmates began setting

fire to the tents and nearby structures, throwing rocks

App. 4

and cans, and wielding other makeshift weapons shortly

after 7:00 p.m.

The prison’s Tactical Support Unit (TSU) responded

to the disturbance. Officials used the public address sys-

tem to order all non-participating inmates to assemble at

a designated location, but only 21 inmates reported. The

TSU entered the prison yard at 8:30 p.m. Over the next

several hours, it was able to restore order and regain

control of the facility using non-lethal weapons. By 11:15

p-m., the TSU had evacuated all of the remaining build-

ings, had accounted for each of the 638 inmates, and was

holding them handcuffed, shackled, and lying face-down

on the ground in a central location in the prison yard.

Prison officials continued to hold the inmates hand-

cuffed and prone, though no longer shackled, in the

prison yard while they conducted an investigation of the

disturbance. Until the riot participants could be identi-

fied, officials considered holding the inmates in the easily

secured prison yard to be the safest alternative. Placing

inmates back inside the eight dormitories would have

fragmented staff and allowed inmates access to objects,

possibly including shanks, that could be used to cause

injury. No single building was large enough to hold all of

the inmates except the Multi-Purpose Building, which

housed a basketball court and had only one entrance.

Although this building would have provided shelter,

prison officials considered it too dangerous to use under

the circumstances because housing the entire inmate pop-

ulation in a space of that size would have created

crowded conditions and thwarted their need to maintain

complete physical control over the prisoners in the wake

of the riot.

App. 5

While the prisoners waited in the yard, eleven inves-

tigators worked around the clock to interview each

inmate individually. Other officials conducted an exhaus-

tive search of the entire unit, including all of the living

spaces and each prisoner’s personal locker, for weapons

and other contraband. The investigation lasted four days.

During those four days, the prisoners in the yard

were exposed to the elements. The weather was humid,

and the peak afternoon temperatures ranged up to 94

degrees, with nighttime lows around 70 degrees. Prison

officials responded to the heat by “misting” the inmates

with fire hoses. On the third day, officials distributed 36

bottles of sunscreen among the more than 600 inmates.

Nonetheless, during one three-hour period on August 17,

thirteen inmates required treatment for heat-related med-

ical problems. The inmates were not provided with blan-

kets or other coverings during the night. It rained during

the night of August 16, but the inmates were given no

means of shelter.

During some of the inmates’ time in the yard, prison

officials provided no foilet facilities. For the first night,

inmates were not allowed to move from a prone position

for any reason, even to relieve themselves. Sometime

during the morning of August 15, two portable toilets

were brought onto the yard. By then, some of the inmates

had urinated or defecated into their clothing, which they

would wear for the rest of the time in the yard. According

to the inmates, the two portable toilets could not meet the

demand of so many prisoners and were often unusable,

despite periodic servicing. Sometime later on August 15,

the situation improved when a few of the institution’s

App. 6

indoor toilet facilities that had been damaged during the

riot were repaired and made available to the inmates.

For each meal, the inmates received sack lunches

consisting of bologna sandwiches, milk, and an orange,

but, according to the plaintiffs’ deposition testimony,

these lunches were routinely left in the sun for several

hours before they were distributed, spoiling the meat and

making much of the meal inedible. The inmates also

claim that they received no drinking water until well into

the second day, and that their access to drinking water

was restricted thereafter. At the conclusion of the four-

day riot investigation, the inmates were returned to their

living quarters, and normal prison conditions were rees-

tablished.

Several months later, on the evening of December 28,

1995, another disturbance erupted in a different unit of

the Safford prison. Shortly before 6:00 p.m., between 70

and 80 of the 369 inmates in the Tonto Unit began fight-

ing, throwing rocks, and destroying property. Again the

TSU was successfully deployed, and it quickly regained

control of the Unit. At 8:00 p.m., the TSU began evacuat-

ing the buildings of inmates and bringing them outdoors

to the ballfield, where they were made to lie on the

ground in handcuffs and ankle restraints. By midnight,

all 369 inmates were lying prone on the ground. As they

had in the aftermath of the Graham Unit disturbance,

prison officials left the prisoners outdoors while they

searched the buildings and tried to identify those inmates

who had participated in the riot. This time, the officials’

investigation lasted 17 hours.

App. 7

During the hours the inmates spent outside, the tem-

perature fell to 22 degrees. They were forced to lie on the

ground in whatever clothing they had been wearing

when the TSU cleared their buildings. When the inmates

needed to urinate, the guards allowed them to get to their

knees, crawl a few feet from where they lay, and relieve

themselves on the ground. Because of their close prox-

imity to each other, inmates sometimes urinated on their

neighbors; even when they did not, the urine sometimes

pooled and ran onto other inmates. At around 5:00 a.m.,

the guards briefly allowed the inmates to get to their feet

to try to restore circulation and to relieve the pain and

cramping they were experiencing in the cold. A few

minutes later, the guards ordered the inmates to get back

on the ground. When some of the prisoners refused, the

guards forced compliance with tear gas, stinger balls, and

knee knockers. Once the inmates were again on the

ground, the guards assigned a few of them to enter the

dormitories and get blankets for the rest.

By midday on December 29, the prison officials had

concluded their investigation and identified the instiga-

tors of the disturbance. Officials began returning the

inmates to their dormitories around 1:00 p.m.

The 638 inmates incarcerated in the Graham Unit

during the August 1995 riot and its aftermath filed a class

action against Arizona prison officials in federal district

court under 42 U.S.C. § 1983. Inmate Dennis Johnson is

the lead plaintiff for the Graham Unit class. The 369

Tonto Unit inmates involved in the December 1995 inci-

dent filed a similar class action, for which inmate Leroy

Baca is the lead plaintiff. Each complaint alleges that the

App. 8

defendant prison officials subjected the plaintiff class to

unconstitutional conditions in the prison yard.

On August 26, 1998, the district court entered orders

granting summary judgment for the defendants in each

action. The district court concluded that, because prison

officials had provided some food, drinking water, sanita-

tion, medical care, and protection from the elements dur-

ing the four days that the Graham Unit prisoners were

held outdoors, the Johnson class had failed to provide

evidence of sufficient harm to trigger the protections of

the Eighth Amendment. Similarly, the court held that,

because some of the Tonto Unit prisoners were dressed in

jackets, hats, and gloves; because all of the inmates even-

tually received blankets; and because the inmates were

subjected to cold temperatures for only one night, the

Baca class also had failed to demonstrate sufficient harm

to violate the Eighth Amendment.

Timely appeals were taken. We have jurisdiction to

review the judgments of the district court under 28 U.S.C.

§ 1291, and we reverse.

II

The Eighth Amendment prohibits cruel and unusual

punishment of a person convicted of a crime. U.S. Const.

amend. VIII. The Amendment has not been restricted to

cases challenging the length of a sentence or the nature of

a punishment. Where the conditions of confinement are

challenged rather than the confinement itself, a plaintiff

must make two showings. First, the plaintiff must make

App. 9

an “objective” showing that the deprivation was “suffi-

ciently serious” to form the basis for an Eighth Amend-

ment violation. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct.

2321, 115 L.Ed.2d 271 (1991). Second, the plaintiff must

make a “subjective” showing that the prison official acted

“with a sufficiently culpable state of mind.” Id. The dis-

trict court in these cases did not reach the question of the

second required showing because, in its view, the depri-

vations alleged by the plaintiff classes were not suffi-

ciently serious to violate the Eighth Amendment.

Although the routine discomfort inherent in the

prison setting is inadequate to satisfy the objective prong

of an Eighth Amendment inquiry, “those deprivations

denying ‘the minimal civilized measure of life’s necessi-

ties’ are sufficiently grave to form the basis of an Eighth

Amendment violation.” Id. (quoting Rhodes v. Chapman,

452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

Prison officials have a duty to ensure that prisoners are

provided adequate shelter, food, clothing, sanitation,

medical care, and personal safety. See Farmer v. Brennan,

511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994);

Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Hoptowit

v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

The circumstances, nature, and duration of a depriva-

tion of these necessities must be considered in determin-

ing whether a constitutional violation has occurred. “The

more basic the need, the shorter the time it can be with-

held.” Hoptowit, 682 F.2d at 1259; see also Anderson v.

County of Kern, 45 F.3d 1310, 1314, as amended, 75 F.3d 448

(9th Cir. 1995) (“[A] lack of sanitation that is severe or

prolonged can constitute an infliction of pain within the

meaning of the Eighth Amendment.”). For example, the

App. 10

Eighth Circuit found that the Eighth Amendment had

been violated where prison officials required inmates to

remain outdoors in subfreezing temperatures for less

than two hours, even though the inmates were provided

with hip-length, lined denim coats and allowed to move

freely. See Gordon v. Faber, 973 F.2d 686, 687 (8th Cir. 1992).

Similarly, we have suggested that depriving an inmate of

a jacket could violate the Eighth Amendment under some

weather conditions. See Walker v. Sumner, 14 F.3d 1415,

1421 (9th Cir. 1994). More modest deprivations can also

form the objective basis of a violation, but only if such

deprivations are lengthy or ongoing. See Keenan, 83 F.3d

at 1090-91.

The relatively brief amounts of time the members of

the plaintiff classes spent in the prison yard in these cases

preclude them from stating Eighth Amendment claims for

minor deprivations. These plaintiffs, however, provide

evidence of substantial deprivations of shelter, food,

drinking water, and sanitation. This evidence, if believed,

shows harm of sufficient magnitude to satisfy the objec-

tive prong of an Eighth Amendment violation.

The Johnson plaintiffs provide sworn deposition testi-

mony and affidavits that they did not receive protection

from the elements sufficient to ward off heat-related ill-

nesses. They testified that they received inedible food

and inadequate drinking water for four days. They also

testified that they did not receive adequate access to

toilets to avoid soiling themselves, and they were not

allowed to clean themselves thereafter. If believed, this

evidence would establish deprivations sufficiently

serious to satisfy the objective component of an Eighth

Amendment claim.

App. 11

The state has provided videotape evidence demon-

strating that, repeatedly during the four days, some of

the Johnson plaintiffs did receive food, drinking water,

sunscreen, “misting,” and access to toilets. This videotape

evidence is important and may eventually be dispositive

in favor of the state. At this stage of the litigation, how-

ever, it does not overcome the plaintiffs’ evidence. Estab-

lishing that some needs of some plaintiffs were met at

some times during the four days does not establish that

the plaintiffs received adequate edible food and adequate

amounts of drinking water, that the sunscreen or “mist-

ing” provided sufficient protection from the sun and heat,

or that the sanitation was adequate. Drawing all reason-

able inferences from the evidence in favor of the non-

moving parties, as we must, see Wong v. Regents of the

Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999), we conclude

that the videotape falls short of negating the prisoners’

claims. See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). The actual condi-

tions to which the Johnson plaintiffs were subjected on the

prison yard are therefore disputed questions of material

fact that cannot be resolved at summary judgment. See

Fed.R.Civ.P. 56(c).

The Baca plaintiffs also provide sufficient evidence of

substantial deprivations of basic human needs to with-

stand summary judgment. They testify principally to

exposure to subfreezing temperatures and the lack of

access to toilets. As in Johnson, the state supplied a video-

tape of the inmates on the prison yard. The videotape

shows some prisoners wearing jackets and gloves.

Viewed in the light most favorable to the plaintiffs, how-

ever, the videotape establishes no more than that some,

App. 12

but not all, members of the plaintiff class were wearing

winter clothing. The state also maintains that providing

the prisoners with blankets in the early morning ade-

quately protected them from the cold, but it is undis-

puted that the blankets were not distributed until the

inmates had been lying motionless in the dirt in subfreez-

ing temperatures for five to nine hours. The extent and

adequacy of the protection the inmates received from the

cold is therefore a disputed question of fact. Moreover,

although we have no doubt that toilets can be unavailable

for some period of time without violating the Eighth

Amendment, the plaintiffs in this case testify that the

state imposed conditions inescapably resulting in pris-

oners wetting each other with urine. This evidence, if

believed, would allow a fact-finder to conclude that the

plaintiffs suffered a sufficiently serious deprivation to

violate the Eighth Amendment.

Ill

In addition to a sufficiently serious objective harm,

an Eighth Amendment violation requires a showing that

the subjective state of mind of the prison officials was

culpable. See Wilson, 501 U.S. at 298-99, 111 S.Ct. 2321.

The state-of-mind requirement is not constant, but

instead varies with the circumstances of the claim.

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50

L.Ed.2d 251 (1976), the Supreme Court determined that

“deliberate indifference” to prisoners’ serious medical

needs violates the Eighth Amendment. Id. at 105, 97 S.Ct.

285. The deliberate indifference standard requires the

App. 13

plaintiff to prove that “the official knows of and disre-

gards an excessive risk to inmate health or safety... .”

Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128

L.Ed.2d 811 (1994).

Ten years later, when confronted with materially dif-

ferent circumstances, the Court departed from the “delib-

erate indifference” standard it had established in Estelle.

In Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89

L.Ed.2d 251 (1986), the Court refused to find a violation

of the Eighth Amendment where prison officials had shot

an inmate while they tried to rescue a guard held hostage

during a riot, despite the fact that prison officials had

clearly shown deliberate indifference to that inmate’s

safety. Explaining that the state-of-mind requirement is

context-dependent, the Court held:

Where a prison security measure is undertaken

to resolve a disturbance, such as occurred in this

case, that indisputably poses significant risks to

the safety of inmates and prison staff, we think

the question whether the measure taken inflic-

ted unnecessary and wanton pain and suffering

ultimately turns on whether the force was

applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically

for the very purpose of causing harm.

Id. at 320-21, 106 S.Ct. 1078 (internal citations omit-

ted). In emergency circumstances, such as those that exist

during a prison uprising, where prison officials must

weigh the competing institutional interests of ensuring

the safety of staff, visitors, and inmates, and where life-

and-death decisions must be made quickly, the Court

found that the deliberate indifference standard does not

Aecstchi fins

App. 14

“adequately capture the importance of such competing

obligations, or convey the appropriate hesitancy to cri-

tique in hindsight decisions necessarily made in haste,

under pressure, and frequently without the luxury of a

second chance.” Id. at 320, 106 S.Ct. 1078.

In contrast, where inmates challenge the conditions

of confinement, the Court has applied the deliberate

indifference standard rather than the heightened Whitley

standard. See Wilson, 501 U.S. at 303, 111 S.Ct. 2321. The

Court in Wilson reasoned that the emergency circum-

stances facing prison officials while quelling a distur-

bance would, as a general matter, be absent when officials

decided such matters as what sort of food to supply, the

temperature at which to keep the prison cells, and the

kind of clothing to issue. See id.

In the cases now before us, the district court did not

resolve the question of the prison officials’ mental state

because it incorrectly held that the prisoners could not

prove a sufficiently serious objective harm. But the dis-

trict court did explain its view, in reliance on Whitley,

“that a heightened standard of deference applies to the

post-riot actions taken by the prison officials immediately

after the riot, although it may be less than the standard

applied in the face of immediately exigent circum-

stances.”

In our view, the exigent circumstances the prison

officials faced during the riots persisted until the officials

were able successfully to remove the prisoners from the

buildings and secure them in the prison yard. The prison

officials’ actions and accompanying state of mind should

therefore be measured against the Whitley standard for an

App. 15

Eighth Amendment violation until that point. Under the

Whitley standard, those actions did not violate the Eighth

Amendment because the officials were motivated by the

sorts of penological and safety concerns which are com-

mitted to the discretion of prison officials and to which

we give considerable deference.

When the inmates were in the yard, however, they

were handcuffed, prone, and under armed guard. In

these circumstances, the inmates presented no further

danger to prison staff, the public, or each other, and

prison officials were no longer required to make split-

second, life-and-death decisions. Once the inmates were

thus secured in the yard, the state-of-mind requirement

that sufficed to show an Eighth Amendment violation

was deliberate indifference.

In Farmer, the Supreme Court held that to act with

deliberate indifference, an official must have actual

knowledge of an excessive risk to inmate health or safety

and must deliberately disregard that risk. See 511 U.S. at

837, 114 S.Ct. 1970. In these cases, the plaintiffs must

show that the defendant officials had actual knowledge of

the plaintiffs’ basic human needs and deliberately refused

to meet those needs. Whether an official possessed such

knowledge “is a question of fact subject to demonstration

in the usual ways, including inference from circumstan-

tial evidence. ...” Id. at 842, 114 S.Ct. 1970.

In the cases before us, a fact-finder could conclude,

based on the evidence presented by the plaintiffs seen in

its most favorable light, that the defendant prison offi-

cials had actual knowledge of the inmates’ exposure to

the elements and need for sanitation, edible food, and

App. 16

adequate drinking water, and that they intentionally dis-

regarded these conditions. In the Johnson case, inmate

Johnson testified in his deposition that he heard defen-

dant Sam Lewis, the Director of the Department of Cor-

rections, say, “Keep them down for four days at least.”

He also heard guards saying “Let’s keep them down, let’s

hurt them.” In his deposition, then-Deputy Warden Glen

Davis admitted that officials determined on the night of

the riot - before they could know how long the investiga-

tion would take - to keep the inmates outdoors for at

least three days. Davis also wrote a post-incident report

in which he noted that the inmates now “have a clear

understanding from this incident that type of behavior

will not be tolerated. Life was not good for these inmates.

They are now clear on who is administering the Institu-

tion, the consequences forthcoming from their actions

and the absolute power of our Tactical Support Units.”

From this evidence, a finder of fact could conclude that

the defendants deliberately ignored, perhaps even inten-

tionally imposed, the sorts of conditions the Johnson

plaintiffs claim to have experienced during their four

days in the prison yard.

The Baca plaintiffs present similar evidence. Inmate

Victor Farber provides an affidavit in which he relates

that the inmates were so cold by the time of the renewed

disturbance at 5:00 a.m. that some of them asked to be

shot, and “Officer Ortiz laughed at the inmates [and]

said, ‘If we shoot you with these guns you wont [sic] get

to go to the hospital - you'll just lay there in pain.’ ”

Inmate Larry Harper relates hearing a guard say that “he

thought we deserved the treatment we received, if a few

people cause a disturbance everyone will suffer, that he

App. 17

received a lot of overtime and that we should have been

left out there for two weeks.” Inmate Baca testifies that

Deputy Warden Terry threatened to keep the inmates

sutside for seven days if there were any more distur-

dances. Inmate Large testified in his deposition that he

remembered a guard telling him that the prisoners “could

zo to the bathroom in [their] pants and [they] could

freeze.”

IV

The Eighth Amendment does not tolerate prison offi-

cials’ deliberate indifference, in the absence of exigent

circumstances, to substantial deprivations of adequate

shelter, food, drinking water, and sanitation. Because the

olaintiff classes present evidence that, if believed by a

fact-finder, would demonstrate that the defendant prison

officials deliberately failed to rectify severe deprivations

of basic human necessities of which they had actual

knowledge, summary judgment for defendants was

improperly granted.

We REVERSE and REMAND these cases for further

oroceedings consistent with this opinion.

SNEED, Circuit Judge, Dissenting:

“{O)nly the unnecessary and wanton infliction of

pain . . . constitutes cruel and unusual punishment for-

didden by the Eighth Amendment.” Whitley v. Albers, 475

U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In

these cases, the deprivations of shelter were necessary

and the alleged deprivations of adequate food, water and

sanitation were not wanton. I therefore dissent.

App. 18

Shelter

It is well-settled that “[p]rison officials should be

accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment

are needed to preserve internal order and discipline to

maintain institutional security.” Whitley, 475 U.S. at 322,

106 S.Ct. 1078 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99

S.Ct. 1861, 60 L.Ed.2d 447 (1979)) (emphasis added).

Indeed, we have held that “prison officials have a right

and a duty to take the necessary steps to reestablish order

in a prison when such order is lost.” Hoptowit v. Ray, 682

F.2d 1237, 1259 (9th Cir. 1982) (emphasis added). The

deference accorded to prison officials “extends to a

prison security measure taken in response to an actual

confrontation with riotous inmates, just as it does to

prophylactic or preventive measures intended to reduce

the incidence of these or any other breaches of prison

discipline.” Whitley, 475 U.S. at 322, 106 S.Ct. 1078. “It

does not insulate from review actions taken in bad faith

and for no legitimate purpose, but it requires that neither

judge nor jury freely substitute their judgment for that of

officials who have made a considered choice.” Id.

The prison officials made considered choices that

penological and safety concerns mandated that inmates

be kept outdoors during the investigations of the riots.

The decisions were necessary steps to reestablish order in

the prisons where order had been lost. The prisoners in

both of these cases rioted and caused significant damage

to the prison facilities. In Johnson, the rioters set fires to

their own dwellings, including tents and dormitories, and

various buildings that housed offices and other facilities,

including records, mail and property, security, programs,

App. 19

education, the law library, and the church. The tents and

buildings were destroyed in their entirety. In all, the

rioting inmates destroyed State property worth over one

million dollars. Similarly in Baca, a group of 70-80

inmates engaged in widespread fighting, throwing rocks,

and breaking fire extinguishers and windows.

In both cases, the prison officials believed it neces-

sary to keep the inmates together until the riot partici-

pants could be segregated from the non-participants. The

officials properly chose to keep the inmates outdoors in a

large unobstructed field. No safe indoor facilities were

available; the ability of prisoners to obtain potential

weapons was greatly reduced; and it enabled the officers

to guard the inmates from a safe distance. These objec-

tives were neither illegitimate nor does the evidence sug-

gest that their decisions were made in bad faith.

Therefore, these decisions are entitled to extensive defer-

ence. We should not at this distance freely substitute our

judgment for theirs.

Our deference of course has limits. A line must be

drawn somewhere. For example, bad faith might be pre-

sumed in the absence of extraordinary circumstances if

prison officials asserted that inmates needed to be main-

tained in this position for months. Four days, however, is

relatively brief and not an unreasonable length of time to

restore order to a prison following a riot. Cf. Hoptowit, 682

F.2d at 1259 (lockdown after riot lasted at least three

weeks). Thus, in these cases, the deprivations of shelter

were for reasonable periods of time, during which the

prison officials made considered choices consistent with

sound penological and safety concerns.

App. 20

Food, Water and Sanitation

The alleged deprivation of adequate food, water and

shelter was not wanton. Whether conduct can be charac-

terized as ” ‘wanton’ depends upon the constraints facing

the official.” Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct.

2321, 115 L.Ed.2d 271 (1991). The general rule is that a

prison official acts wantonly with respect to supplying

inadequate food, water and shelter if he has actual

knowledge of an excessive risk to inmate health or safety

and deliberately disregards that risk. See Farmer v. Bren-

nan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811

(1994) (articulating the “deliberate indifference” stan-

dard). There is an “emergency exception” to the general

rule that applies to these cases. It provides that when

prison officials are confronted with constraints “mate-

rially different” than those they generally face, wanton-

ness consists of acting “maliciously and sadistically for

the very purpose of causing harm.” Wilson, 501 U.S. at

302-03, 111 S.Ct. 2321. Here, during the time that the

inmates were being held outdoors the prison officials

were faced with constraints “materially different” than

those they generally face. The proper inquiry, therefore, is

whether the alleged deprivations were done maliciously

and sadistically for the very purpose of causing harm.

They were not.

The exhaustive videotape evidence shows that,

despite the unusual situation confronting the prison offi-

cials, they attempted to provide the inmates with ade-

quate food, water and sanitation during the entire time

the inmates were being held outside. For example, two

portable toilets were brought into the yard the morning

App. 21

after the riots in Johnson. The complaint alleges that this

was too late because some inmates had already urinated

or defecated into their clothing by that time. The officials

were quite aware that it was necessary to acquire portable

toilets that evening and were able to get them on-site the

very next day. They did not act maliciously and sadis-

tically for the very purpose of causing harm. Rather,

because of the rioting, they were reacting to a situation

materially different than what they would normally

encounter on a day to day basis.

The complaint properly alleges that the two portable

toilets could not meet the demand of so many prisoners

and were often unusable despite periodic servicing. How-

ever, sanitation was so limited for only one morning. By

the afternoon after the riot, the prison officials had

repaired and made available some of the indoor toilets

that had been damaged during the riots. The prison offi-

cials did not act maliciously and sadistically by providing

only two portable toilets during the morning after the riot

while the permanent facilities were rapidly being

repaired.

The inmates alleged that the food was inadequate

because it was left in the sun for several hours prior to

-distribution. This, at best, is doubtful. Several hours in

the sun usually does not render a sack lunch inedible.

Nevertheless, even were it true that the lunches were

“inedible” due to a delay, the delay was partially a conse-

quence of being forced to pass out sack lunches to over

600 inmates while maintaining security. Moreover, it

should be irrefutable that one who has substantially dis-

rupted a restaurant should not complain about the ser-

vice being slow.

App. 22

The inmates also claimed, despite videotape evidence

showing water routinely being provided to the inmates

throughout their time in the yard, that they did not have

adequate access to water. The majority simply dismisses

the videotape evidence by saying that it merely shows

that many inmates, but not necessarily all, received water.

No doubt some inmates got water before others. Also, it

is likely that the water service was slow. Nonetheless,

there is no showing that the distribution of water dis-

criminated between the participants and the non-partici-

pants in the riots.

In sum, the complaints do not show that the prison

officials acted maliciously or sadistically for the very

purpose of causing harm. At most the evidence shows

that the temporary conditions following the riots was not

perfect. How could it have been otherwise? The majority

simply ignores the constraints the prison officials were

faced with and presumes that conditions should have

been normal the moment the officials “were able suc-

cessfully to remove the prisoners from the buildings and

secure them in the prison yard.” Maj. Op. 734. This

approach is unrealistic because it improperly holds the

prison officials to a standard of conduct that will be

difficult for them to meet. Accordingly, I dissent.

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

DENNIS JOHNSON, CIV No.

et al., 96-463-TUC-FRZ

Plaintiffs, ORDER

vs. (Filed Aug. 26, 1998)

)

)

)

)

)

SAMUEL LEWIS, former

director of the Arizona )

Department of Corrections, )

in his official and )

individual capacity, et al.,

)

Defendants.

I. Facruat BACKGROUND

Defendants allege that at approximately 7:13 p.m. in

the evening of August 14, 1995, prisoners in the minimum

security Graham Unit of the Arizona State Prison Com-

plex in Safford, Arizona, began to set fire to the tents

where they were housed as well as to other modular

structures in the unit (mail and property room, church,

offices, law library, programs, and education buildings).

The inmates looted the unit’s store, and destroyed win-

dows, toilets and other facilities. At the time, 638 inmates

were housed in the Graham Unit and of these, 100 lived

in ten (10) army tents. This was apparently not a riot

where one group was fighting another, but a sort of

protest precipitated by dissatisfaction with conditions in

the unit (the heat in the tents and the fact that inmates

were locked out of the tent area during the working day).

App. 24

The prison officials responded to the riot by deploy-

ing the Tactical Support Unit (TSU) to perform a clock-

wise sweep of the unit and gather all the residents into

one outside area. Before the TSU entered the yard,

announcements were made over the public address sys-

tem inviting all non-participating inmates to assemble

outside of the Education Building. Twenty-one inmates

responded as non-participants. The TSU then entered the

burning Graham Unit at 8:30 p.m., exploding diversion-

ary devices in the buildings before they entered them.

TSU officers met little resistance from the prisoners in the

buildings, but found prisoners throwing rocks and soda

cans in the yard. Inmates in the yard were ordered to stop

throwing things, and when they failed to do so, TSU

officers fired tear gas, knee knockers and stinger balls at

the rioters. Prisoners were moved to a grassy area in the

unit, handcuffed behind their backs and ordered to lay on

their stomachs. By 11:15 p.m., all prisoners in the Graham

Unit were accounted for and under guard.

The prisoners were held in the outside area for four

days until the investigation of the riot (which began late

on the night of the riot) was completed. Defendants

allege that this was necessary for a number of reasons

including the length of time needed to investigate, the

need to control the population, and the safety of the

prisoners. Plaintiffs allege violations of the Fourteenth

and Eighth Amendments and 42 U.S.C. § 1983. Plaintiffs

accuse the prison officials of employing excessive force,

denying them access to toilets, denying them food and

water, denying them medical care, and forcing them to sit

in the heat with no covering during extreme summer

temperatures. Defendants’ Exhibit B, a videotape of some

App. 25

of the incident and events following, shows water, toilets,

medical care, food, sunscreen and other relief being pro-

vided to the inmates.! Pending before the Court is Defen-

dants’ Motion for Summary Judgment. A hearing was

held on July 13, 1998.

II. Summary JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure

provides that a court may grant summary judgment if

“the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to judgment

as a matter of law.” The Supreme Court’s 1986 trilogy of

cases, Celotex Corp. v. Caltrett, [sic] 477 U.S. 317 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986); and

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475

U.S. 574 (1986), requires that a party seeking summary

judgment identify those parts of the record that indicate

the absence of a genuine issue of material fact (Brinson v.

Linda Rose Joint Venture, 53 F.3d 1044, 1047 (9th Cir. 1995)).

Once the moving party has made this showing, the non-

moving party must designate which specific facts show

that there is an issue for trial. Celotex, 477 U.S at 324

quoting Fep.R.C1.P. 56(e). The moving party is held to a

1 Plaintiffs’ videotape exhibit features the prison officials

repeatedly addressing their wards with foul and derogatory

language. (Plaintiffs’ Exhibit 10). While such behavior does not

necessarily rise to a Constitutional offense, see Keenan v. Hall, 83

F.3d 1083, 1092 (9th Cir. 1996), it certainly reflects poorly on the

officials and falls far short of the expectations of professional

conduct most citizens have regarding law enforcement officers.

App. 26

strict standard and any doubts as to the existence of a

genuine issue of material fact will be resolved against

him. Eastman Kodak Co. v. Image Technical Servs., Inc., 504

U.S. 451, 456 (1992); Liberty Lobby, 477 U.S. at 255. How-

ever, when a movant has supported a motion for sum-

mary judgment with affidavits or other fact, the non-

movant may not merely rest upon the pleadings but must

demonstrate that the facts are actually in issue. Mat-

sushita, 475 U.S. at 586. If the evidence is merely colorable

or is not significantly probative, summary judgment may

be granted. Liberty Lobby, 477 U.S. at 249-50 (citations

omitted).

III. ANAtysis

The Eighth Amendment's Cruel and Unusual Punish-

ment Clause has been interpreted to proscribe certain

intentionally imposed conditions of confinement as well

as deliberate indifference to serious medical needs of

prisoners whether or not there was an express intent to

inflict pain. See generally, Ingraham v. Wright, 430 U.S. 651

(1977); Estelle v. Gamble, 429 U.S. 97 (1976); Rhodes v.

Chapman, 452 U.S. 337 (1981). Plaintiffs argue that the

actions of prison officials in response to and following the

summer riot constituted cruel and unusual punishment.

The analysis in Whitley v. Albers 475 U.S. 312 (1986),

governs this case.? In that case, the Supreme Court, in

reviewing a judgment on the pleadings, wrote:,

2 Whitley dealt with a trial court’s granting of directed

verdict (judgment as a matter of law) under Rule 50,

Fep.R.C1.P., for the prison officials. On a motion for judgment

as a matter of law, the Court is required to resolve all inferences

in favor of the non-movant. On a motion for summary

App. 27

Where a prison security measure is undertaken

to resolve a disturbance, such as occurred in this

case, that indisputably poses significant risks to

the safety of inmates and prison staff, we think

the question whether the measure taken inflic-

ted unnecessary and wanton pain and suffering

ultimately turns on “whether force was applied

in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the

very purpose of causing harm.” . . . [S]uch fac-

tors as the need for application of force, the

relationship between the need and the amount

of force that was used, [and] the extent of injury

inflicted are relevant to that determination.

From such considerations inferences may be

drawn as to whether the use of force could

plausibly have been thought necessary, or

instead evinced such wantonness with respect to

the unjustified infliction of harm as is tanta-

mount to a knowing willingness that it

occur. .

When the “ever-present potential for violent

confrontation and conflagration” erupts into

actual unrest and conflict, the admonition that

“a prison’s internal security is peculiarly a mat-

ter normally left to the discretion of prison

administrators” carries special weight . . . That

judgment, the Court treats the facts in a light most favorable to

the non-movant but is not required to assume the truth of those

facts and may reject certain facts which can not be supported or

are not susceptible to any inference in favor of the non-movant.

Whitley can therefore be applied to summary judgment cases

with no apparent prejudice to the non-movant, since the

analysis there is based on a standard essentially the same as on

summary judgment.

App. 28

deference extends to a prison security measure

taken in response to an actual confrontation

with riotous inmates, just as it does to pro-

phylactic or preventive measures intended to

reduce the incidence of these or any other

breaches of prison discipline . . . it requires that

neither judge nor jury freely substitute their

judgment for that of officials who have made a

considered choice.

* * *

Unless it appears that the evidence, viewed in

the light most favorable to the plaintiff, will

support a reliable inference of wantonness in

the infliction of pain under the standard we

have described, the case should not go to the

jury.

Whitley, 475 U.S at 320-22 (citations omitted). At the hear-

ing, Defendants argued that where Whitley does not con-

trol the analysis, a standard of “deliberate indifference” is

applied under Estelle v. Gamble. Defendants argue that

even under the deliberate indifference standard, the facts

do not support a claim of cruel and unusual punishment

because the prison officials took great pains to attend to

the basic needs of the prisoners and provided comfort |

measures such as sun screen lotion and “misting” with

hoses.

The Court concludes that Whitley is dispositive of the

Plaintiffs’ claim that the prison officials used excessive

force in responding to the riot. Under these exigent cir-

cumstances, the prison officials’ use of crowd control

devices and non-lethal weapons was appropriate and

justified and the Court will not substitute its own opinion

for the informed judgment of the prison officials in this

App. 29

area. The Court also concludes that a heightened stan-

dard of deference applies to the post-riot actions taken by

the prison officials during the four days immediately

after the riot, although it may be less than the standard

applied in the face of immediately exigent circumstances.

The Supreme Court wrote:

The general requirement that an Eighth Amend-

ment claimant allege and prove the unnecessary

and wanton infliction of pain should also be

applied with due regard for differences in the

kind of conduct against which an Eighth

Amendment objection is lodged. The deliberate

indifference standard articulated in Estelle was

appropriate in the context presented in that case

because the State’s responsibility to attend to

the medical needs of prisoners does not ordi-

narily clash with other equally important gov-

ernmental responsibilities. Consequently,

“deliberate indifference to a prisoner’s serious

illness or injury” can typically be established or

disproved without the necessity of balancing

competing institutional concerns for the safety

of prison staff or other inmates.

Whitley, 475 U.S. at 320. In the wake of the riot, there

were apparent concerns of control and safety that were

not “emergency” concerns but which were more impor-

tant than the typical concerns of administering the

prison. The choices being made by the prison officials

were not related to routine prison operations and the

prison officials were clearly doing what they could to

balance “competing institutional concerns.” Id. Under

these circumstances, they are entitled to a wider range of

App. 30

deference than in the normal situation, but to less defer-

ence than they would be in the heat of a riot or emer-

gency.

For any kind of Eighth Amendment analysis, Plain-

tiffs must show that there was unnecessary and wanton

infliction of pain. The video exhibits shows no purposeful

infliction of pain on the inmates in the video. On the

other hand, a heat stroke is a very serious injury and the

prison officials would be courting disaster to pur-

posefully expose the inmates to such a risk if they had

better alternatives readily available.

Nonetheless, the Defendants have given various jus-

tifications for holding the prisoners outdoors, all of

which appear rational and do not suggest either deliber-

ate indifference or a malicious motivation. Prison admin-

istrators are accorded “wide-ranging deference in the

adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and

discipline and to maintain institutional security.” Bell v.

Wolfish, 441 U.S. at 547. Defendants were required to

interview approximately 600 inmates, none of whom

admitted involvement in the arson, but who continued to

implicate other participants until the interviews were

finished. The process took four days and the participating

inmates could not be segregated until they were identi-

fied. For their part, Plaintiffs argue that the actions had

no penalogical justification and that they are prepared to

offer expert opinion on this point. Plaintiffs argue that the

procedure violated the Eighth Amendment because it

violated basic standards of human decency. See Troppe v.

Dulles, 356 U.S. 86, 101 (1958).

App. 31

The danger emphasized by Plaintiffs is that the State

can easily offer plausible justifications which are in fact

pretextual and use tactics such as leaving prisoners

exposed to the heat or the cold as punishment without

affording due process, and arguably offending substan-

tive due process and the Eighth Amendment. Plaintiffs

state that they were, in fact, subjected to cruel and

unusual punishment and that this raises a question of

intent, which is a subjective inquiry of fact and which

therefore precludes summary judgment. As evidence that

there was an intent to inflict pain, Plaintiffs point to the

Summarization of Disturbance prepared by Deputy War-

den Glenn Davis in which he observed under the caption

“lessons learned” that “life was not good” for the pris-

oners after the riot. (Plaintiff’s Exhibit 4). Normally, a

question of intent may not be disposed of on summary

judgment. Alexander v. City of San Francisco, 29 F.3d 1355,

1364 (9th Cir. 1994). However, without showing either

pain or denial of basic needs, Plaintiffs cannot show an

Eighth Amendment violation.

Plaintiffs admit that some of their basic needs were

met. See Touissant v. McCarthy, 801 F.2d 1080, 1107 (9th

Cir. 1986) (holding that prison officials must provide

prisoners with adequate “food, clothing, shelter, sanita-

tion, medical care and personal safety.”). Because the

basics were provided, Plaintiffs’ argument is reduced to a

wish list of items which could have been provided (air

conditioning, pillows, blankets, change of clothes,

showers). This kind of hindsight criticism of prison offi-

cials has been rejected as a basis for an Eighth Amend-

ment claim. Whitley, 475 U.S. 322. Defendants argue that

the pragmatic concerns of the situation (safety, control,

App. 32

logistics) precluded allowing prisoners to change their

clothes or take showers. When considering conditions of

confinement claims, a court should consider the amount

of time to which a prisoner was subjected to the condi-

tion. Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982).

In this case, Plaintiffs were not subjected to the condi-

tions in question longer than four days.

Whitley requires the Court to view the actions of the

prison officials with some deference. The Court concludes

that the exigent circumstances in this case require their

actions to be reviewed with deference, that the actions of

the prison officials were based on legitimate penalogical

concerns, that the basic needs of the prisoners were

attended to, that the hardships lasted for a short time,

and that there is therefore no basis on which to find an

Eighth Amendment violation. At the hearing, Plaintiffs

argued that the fact the prison officials provided some of

the basic necessities in no way obviates the callousness

and wantonness of their actions. However, the order of

the Court’s inquiry is exactly the opposite. Without first

finding a harm, it is not necessary for the Court to inquire

as to intent.

A second question raised here is whether the

restraints were necessary for a period of four days. The

deprivation of liberty effected by physical restraint or

isolation may be permissible for a short duration of time,

even without the extenuating circumstances the prison

allegedly encountered in the aftermath of the riot. See,

_e.g., Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.

1994) (finding a safety cell used to control violent inmates

for short periods of time was constitutionally justifiable).

App. 33

The Court thus concludes that Plaintiffs were not sub-

jected to cruel and unusual punishment here, where the

restraint was necessary to ensure safety and control after

a riot and lasted for a short time.

IV. CONCLUSION

In sum, the Court views the actions taken by the

prison officials with special deference towards those

actions taken in the midst of the riot which were related

to regaining control and with somewhat less deference

following that point when control was acquired. Viewing

the actions with this deference, the Court then takes the

facts alleged in a light favorable to the non-movants.

However, those facts which cannot be disputed are not

material issues of fact. The video exhibits put many facts

beyond dispute. Additionally, because Plaintiffs admit

that their most basic needs were met and because the

hardships they suffered have been explained by legiti-

mate penalogical concerns which are entitled to deference

under Whitley, and because the hardships lasted for only

a short time, the Court concludes that the Defendants are

entitled to summary judgment.

IT IS ORDERED that Defendants’ Motion for Summary

Judgment is GRANTED and that this case is hereby

DISMISSED.

DATED this 24th day of AUGUST, 1998.

/s/ Frank R. Zapata

FRANK R. ZAPATA

UNITED STATES DISTRICT

_ JUDGE

App. 34

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

LEROY BACA, et al., CIV No.

Plaintiffs, 96-464-TUC-FRZ

ORDER

Vs.

TERRY STEWART, Director

of the Arizona Department

of Corrections, in his

official and individual

capacity, et al.,

(Filed Aug. 26 1998)

Defendants.

me mee ee ee eee ee ee ee”

I. Facruat BACKGROUND

At approximately 5:50 p.m. in the afternoon of

December 28, 1995, widespread fighting along racial lines

erupted among the prisoners in the Tonto Unit of the

Arizona State Prison at Safford. Inmates were allegedly

throwing rocks, swinging socks full of rocks, and break-

ing fire extinguishers and windows. Orders were given

over the public address system for all non-participants to

go to the ballfield and lay down. At 6:48 p.m., the

prison’s Tactical Support Unit (TSU) entered the yard and

ordered inmates to lay on the ground. A tear gas cannis-

ter[sic] was fired at a group which defied the order, after

which, all of the prisoners complied. At 8:00 p.m., the

TSU began clearing all buildings in the unit and escorting

the prisoners to the ballfield where they were cuffed with

knee and wrist restraints. By 12:10 a.m., all prisoners

were accounted for.

App. 35

Force was used again at 5:17 a.m. in the morning of

December 29, 1995 in response to a large group of

inmates who defied direct orders to lay down on the

_ ground. After giving warnings, the TSU officers fired a

tear gas cannister, a diversionary device, a set of knee

knockers, and three sting ball devices (one of which did

not detonate).

The Tonto Unit housed 369 inmates who were inter-

viewed by four investigators beginning the night of the

riot. The process was completed by midday on December

29, 1995 and the riot participants were segregated and the

remaining inmates returned to their indoor housing.

Plaintiffs allege violations of the Fourteenth and Eighth

Amendments and 42 U.S.C. § 1983. The crux of Plaintiff’s

complaint is that:

Despite the availability of housing at the unit,

for over 36 hours all the prisoners were kept .

outdoors and handcuffed in the near freezing

December weather without sufficient and neces-

sary food, water, blankets or sanitary facilities.

Arizona Department of Corrections . . . created

this scenario to teach all the prisoners a “les-

son.”

Defendants’ actions were inconsistent with

all norms of human decency and a civilized

society and served no legitimate purpose. They

were cruel and unusual and deliberately indif-

ferent to the health and safety of Plaintiffs.

(Second Amended Complaint at pp. 1-2). Plaintiffs allege

that they were forced to endure bitterly cold tempera-

tures during the time they were held outside (approxi-

mately 8:00 p.m. on December 28, 1995 to 6:00 p.m. on

App. 36

December 29, 1995), that they were denied adequate

clothing for the cold, and were given blankets which

were “insufficient.” They also allege that they were

forced to urinate and defecate in their clothing or on the

ground while handcuffed on their knees. They further

allege that they were denied medical care while exposed

to the extfeme temperatures. Plaintiffs allege that the

above actions of the prison caused an unreasonable risk

of substantial harm to them, humiliation to all, and injury

to some. They further contend that the prison is likely to

repeat this type of behavior.

Defendants allege that the inmates were permitted to

urinate “outdoors” immediately after they were brought

on the ballfield, and that later in the morning, officers

escorted inmates to the bathroom facilities as needed.

(Motion for Summary Judgment at 8). They also demon-

strate with affidavits that the ankle cuffs were removed

from inmates to allow them to urinate in front of them-

selves “or further away.” (Plaintiff’s Exhibit E at 35,

43-44, Exhibit F at 45). Defendants support their conten-

tion that medical treatment was provided for those who

availed themselves of it with exhibits including a video.

(Defendants’ Exhibit C). The video also demonstrates that

most of the inmates were wearing cold weather clothing,

jackets and gloves. Blankets were distributed to the

inmates at 5:00 a.m. in the morning. Pending before the

Court is Defendants’ Motion for Summary Judgment. A

hearing was held July 13, 1998.

App. 37

II. Summary JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure

provides that a court may grant summary judgment if

“the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to judgment

as a matter of law.” The Supreme Court’s 1986 trilogy of

cases, Celotex Corp. v. Caltrett, [sic] 477 U.S. 317 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

and Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S 574 (1986), requires that a party seeking summary

judgment identify those parts of the record that indicate

the absence of a genuine issue of material fact (Brinson v.

Linda Rose Joint Venture, 53 F.3d 1044, 1047 (9th Cir. 1995)).

Once the moving party has made this showing, the non-

moving party must designate which specific facts show

that there is an issue for trial. Celotex, 477 U.S. at 324,

quoting Frp.R.C1v.P. 56(e). The moving party is held to a

strict standard and any doubts as to the existence of a

genuine issue of material fact will be resolved against

him. Eastman Kodak Co. v. Image Technical Servs., Inc., 504

U.S. 451, 456 (1992); Liberty Lobby, 477 U.S. at 255. How-

ever, when a movant has supported a motion for sum-

mary judgment with affidavits or other fact, the non-

movant may not merely rest upon the pleadings but must

demonstrate that the facts are actually in issue. Mat-

sushita, 475 U.S. at 586, 106 S.Ct. at 1356. If the evidence is

merely colorable or is not significantly probative, sum-

mary judgment may be granted. Liberty Lobby, 477 U.S. at

249-50, 106 S.Ct. at 2511 (citations omitted).

App. 38

III. ANALysis

The Eighth Amendment’s Cruel and Unusual Punish-

ment Clause has been interpreted to proscribe certain

intentionally imposed conditions of confinement as well

as deliberate indifference to serious medical needs of

prisoners whether or not there was an express intent to

inflict pain. See generally, Ingraham v. Wright, 430 U.S. 651

(1977); Estelle v. Gamble, 429 U.S. 97 (1976); Rhodes v.

Chapman, 452 U.S. 337 (1981). Plaintiffs argue that the

actions of prison officials in response to and following the

riot constituted cruel and unusual punishment. The anal-

ysis in Whitley v. Albers, 475 U.S. 312 (1986), governs this

case.1 In that case, the Supreme Court, in reviewing a

judgment on the pleadings, wrote:

Where a prison security measure is undertaken

to resolve a disturbance, such as occurred in this

case, that indisputably poses significant risks to

the safety of inmates and prison staff, we think

the question whether the measure taken inflic-

ted unnecessary and wanton pain and suffering

ultimately turns on “whether force was applied

1 Whitley dealt with a trial court’s granting of directed

verdict (judgment as a matter of law) under Rule 50,

Fep.R.Civ.P., for the prison officials. On a motion for judgment

as a matter of law, the Court is required to resolve all inferences

in favor of the non-movant. On a motion for summary

judgment, the Court treats the facts in a light most favorable to

the non-movant but is not required to assume the truth of those

facts and may reject certain facts which cannot be supported or

are not susceptible to any inference in favor of the non-movant.

Whitley can therefore be applied to summary judgment cases

with no apparent prejudice to the non-movant, since the

analysis there is based on a standard essentially the same as on

summary judgment.

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App. 39

in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the

very purpose of causing harm.” . . . [S]uch fac-

tors as the need for application of force, the

relationship between the need and the amount

of force that was used, [and] the extent of injury

inflicted are relevant to that determination.

From such considerations inferences may be

drawn as to whether the use of force could

plausibly have been thought necessary,: or

instead evinced such wantonness with respect to

the unjustified infliction of harm as is tanta-

mount to a knowing willingness that it

CORRE. < SRBC

When the “ever-present potential for violent

confrontation and conflagration” erupts into

actual unrest and conflict, the admonition that

“a prison’s internal security is peculiarly a mat-

ter normally left to the discretion of prison

administrators” carries special weight . . . That

deference extends to a prison security measure

taken in response to an actual confrontation

with riotous inmates, just as it does to pro-

phylactic or preventive measures intended to

reduce the incidence of these or any other

breaches of prison discipline . . . it requires that

neither judge nor jury freely substitute their

judgment for that of officials who have made a

considered choice.

* * *

Unless it appears that the evidence, viewed in

the light most favorable to the plaintiff, will

support a reliable inference of wantonness in

the infliction of pain under the standard we

have described, the case should not go to the

jury.

App. 40

Whitley, 475 U.S. at 320-22 (citations omitted). At the

hearing, Defendants argued that where Whitley does not

control the analysis, a standard of “deliberate indif-

ference” is applied under Estelle v. Gamble. Defendants

argue that even under the deliberate indifference stan-

dard, the facts do not support a claim of cruel and

unusual punishment.

Plaintiffs emphasize 1) the excessive application of

force, 2) the exposure to cold, and 3) unnecessary

restraint and related hygiene issues. The Court concludes

that Whitley is dispositive of the Plaintiffs’ claim that the

prison officials used excessive force in responding to the

riot. Under these exigent circumstances, the prison offi-

cials’ use of crowd control devices and non-lethal

weapons was appropriate and justified and the Court will

not substitute its own opinion for the informed judgment

of the prison officials in this area. Prison administrators

are accorded “wide-ranging deference in the adoption

and execution of policies and practices that in their judg-

ment are needed to preserve internal order and discipline

and to maintain institutional security.” Bell v. Wolfish, 441

U.S. at 547.

The Court also concludes that a heightened standard

of deference applies to the post-riot actions taken by the

prison officials immediately after the riot, although it

may be less than the standard applied in the face of

immediately exigent circumstances. The Supreme Court

wrote:

The general requirement that an Eighth Amend-

ment claimant allege and prove the unnecessary

and wanton infliction of pain should also be

applied with due regard for differences in the

NEE RAT M hh teat ear. TRE Ow.

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App. 41

kind of conduct against which an Eighth

Amendment objection is lodged. The deliberate

indifference standard articulated in Estelle was

appropriate in the context presented in that case

because the State’s responsibility to attend to

the medical needs of prisoners does not ordi-

narily clash with other equally important gov-

ernmental responsibilities. Consequently,

“deliberate indifference to a prisoner’s serious

illness or injury” can typically be established or

disproved without the necessity of balancing

competing institutional concerns for the safety

of prison staff or other inmates.

Whitley, 475 U.S. at 320. In the wake of the riot, there

were concerns of control and safety that were more

important than the typical concerns of administering the

prison. The choices being made by the prison officials

were not related to routine prison operations and the

prison officials were clearly doing what they could to

balance “competing institutional concerns.” Id. Under

these circumstances, they are entitled to a wider range of

deference than in the normal situation.

To prevail on their Eighth Amendment claim, Plain-

tiffs must show that there was unnecessary and wanton

infliction of pain. The Court takes the allegation of expo-

sure to cold as a very serious allegation. See Keenan v.

Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (“The Eighth

Amendment guarantees adequate heating.”). Plaintiffs

cite Gordon v. Faber, 973 F.2d 686 (Eighth Cir. 1992), where

a district court held that the plaintiff prisoners’ Eighth

Amendment rights were violated when they were held

outside in freezing temperatures for one hour without

proper protection. In this case, the video tape shows that

App. 42

the prisoners were dressed in cold weather clothing

(jackets, hats, gloves) and received blankets. Accordingly,

there is scant evidence that the actions of the prison

officials resulted in the infliction of pain. Moreover, the

period that the prisoners were subjected to cold tempera-

tures was short - less than 24 hours. When considering

conditions of confinement claims, a court should consider

the amount of time to which a prisoner was subjected to

the condition. Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th

Cir. 1982). In short, the exposure to cold temperatures for

this short of time, and in light of the legitimate penalogi-

cal justifications related to the riot, does not rise to the

level of an Eighth Amendment violation.

As to the ciaim of cruel and unusual punishment

through unnecessary restraint, the Court finds that the

penalogical concerns warranted the actions taken, that

the prison officials paid adequate concern to the medical

and other needs of the prisoners, and that any suffering

was for a short duration and did not amount to an Eighth

Amendment violation. Quoting Whitley once more: “The

infliction of pain in the course of a prison security mea-

sure, therefore, does not amount to cruel and unusual

punishment simply because it may appear in retrospect

that the degree of force authorized or applied for security

purposes was unreasonable, and hence unnecessary in

the strictest sense.” 475 U.S. at 319. Accordingly, the

Court finds that the knee restraints and wrist restraints

were not cruel and unusual punishment in this context.

Similarly, although hygiene could have been better, the

~ concerns of control created by the riot weigh against a

finding of cruel and unusual punishment in this context.

See Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.

iii

App. 43

1995) (Holding that “[S]ubjection of a prisoner to lack of

sanitation that is severe or prolonged can constitute an

infliction of pain within the meaning of the Eighth

Amendment.”). The pzisoners were not subjected to

unsanitary conditions for a prolonged period in this case.

In analyzing the second application of force in Baca,

when the prisoners refused to return to the ground on the

morning of December 29th, the Court applies a factoral

analysis. This kind of analy~is is what the district court in

Albers v. Whitley, 546 F.Supp. 726, 733 (D.Or. 1982), was

describing in referring to “such factors as the need for

application of force that was used, [and] the extent of

injury inflicted.” As the Supreme Court stated “[f]rom

such considerations inferences may be drawn as to

whether the use of force could plausibly have been

thought necessary, or instead evinced such wantonness

with respect to the unjustified infliction of harm as is

tantamount to a knowing willingness that it occur.”

Whitley, 475 U.S. at 321.

The morning of December 29th followed a night

where the temperature had dropped down to 22 degrees.

The prisoners were allowed to stand up and move around

to warm themselves and understandably were reluctant

to return to the ground when ordered to do so. Although

they were repeatedly ordered to get down, a large group

of the inmates remained standing. Under these circum-

stances, the actions of the prison officials are entitled to

deference. Moreover, Whitley forecloses this Court from

second-guessing whether the official’s use of force in

response to the perceived threat of renewed insurrection

was the best choice among possible alternatives. The

“after the fact opinion that danger was not imminent in

App. 44

no way establishes that there was no danger, or that a

conclusion by the officers that it was imminent would

have been wholly unreasonable.” Whitley, 475 U.S. at 323.

The use of non-deadly force to restore order was not

inappropriate and was clearly related to legitimate

penalogical concerns. The Court rejects Plaintiffs’ sugges-

tion, made at the hearing, that the use of non-discrimi-

nate weapons, such as tear gas, worked a Constitutional

violation for those on the ground. Far worse would have

been the use of discriminating, and deadly, weapons on

those who remained standing.

In sum, the Court will grant summary judgment to

Defendants as to the claims of constitutional violations

based on restraint and hygiene concerns. ‘The Court also

concludes that there was no objectively serious injury

caused by the exposure to the cold, that the procedure of

holding the prisoners outdoors was reasonably related to

legitimate penalogical concerns, that the prison officials

are entitled to deference in this area, and that therefore

summary judgment should be granted on that claim.

Finally, with regards to the December 29, 1995 application

of force, the Court finds that the facts, taken in a light

most favorable to the non-movant, clearly support a find-

ing of exigency that requires deference to the prison

officials. The Court therefore will grant summary judg-

ment to Defendants under Whitley.

——-s ee ee ee

App. 45

IT IS ORDERED that Defendants’ Motion to Dismiss is

GRANTED and this case is hereby DISMISSED.

DATED this 24th day of AUGUST, 1998.

/s/ Frank R. Zapata

FRANK R. ZAPATA

UNITED STATES

DISTRICT JUDGE

|

|

App. 46

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS N. JOHNSON; LEONARD _ |

TODEK, individually and on behalf hive 98-16821

of all others similarly situated; ae

LAWRENCE E. COTTLE; JOHN | ptt

PILAFAS, individually and on behalf

of all others similarly situated; ROBB (Filed

STEIR, individually and on behalf of | Oct. 2, 2000)

all others similarly situated;

RODNEY WARNER, individually and

on behalf of all others similarly

situated; GARY ELMORE,

individually and on behalf of all

others similarly situated; ELIAS

GUTIERREZ;,

Plaintiffs-Appellants,

v.

SAMUEL LEWIS, former director of

the ADOC in his individual capacity;

TERRY STEWART, Director of the

ADOC in his official and individual

capacity; BILL GOTCHER, former

warden of the ASP at Safford in his

official and individual capacity;

GLENN DAVIS, Deputy Warden of

ASP Safford in his official and

individual capacity; JOHN FOOTE,

Deputy Warden of the ASP Safford

in his official and individual

capacity; JOHN ABBL, Captain DOC

officer in his official and individual

iii

App. 47

individual capacity; CSO NATIONS,

CSO MARCIAS, CSOII FLORES, SGT.

HULL, DOC officers in their official

and individual capacities; BLACKIE

HASSENZELLER, Lieutenant, a

member of the ADOC Tactical

Support Unit in his official and

individual capacity; JOHN DOE 1-10,

DOC officers in their official and

individual capacities; JOE HAWKINS;

MATTHEW PROTO; MARK WILEY:

DENNIS KILLA; JAMES BAHN;

DWAYNE MORMAN; DENNIS

GROGG; ROBERT STADLER; J.C.

KENNEY;,

A A SAS sos

Defendants-Appellees.

LEROY PATRICK BACA; TROY |

HAMILTON, individually and on | No. 98-16851 -

behalf of all others similarly situated; |

PAUL LARGE, individually and on | | DC# CV'96

behalf of all others similarly situated;

ERIC BAKER; LARRY G. HARPER, ORDER

individualiy and on behalf of all

others similarly situated; VICTOR

LAWRENCE FARBER, Jr.,

Plaintiffs-Appellants,

v. |

TERRY STEWART, Director of the

ADOC in his official and individual

capacity; BILL GOTCHER, former

warden of the ASP Safford in his

individual and official capacity;

App. 48

FRANK TERRY, deputy warden in

charge of Tonto Unit in his official |

and individual capacity; CSO ORTIZ, |

in his official and individual |

capacity; JOHN ABBL, Captain in his |

official and individual capacity; CSO |

THOMPSON, in his official and |

individual capacity; AMARILLUS, |

Sergeant in his official and |

individual capacity; JOHN DOE 1-10, |

CSOs in their official and individual |

capacity; CSO THOMPSON; |

MATTHEW PROTO; DENNIS |

GROGG; DARREN MCWHORTER, |

CSOI; ARMANDO AMARILLAS; |

DWAYNE MORMAN, |

|

|

Defendants-Appellees.

Before: Circuit Judges SNEED, PREGERSON, W.

FLETCHER

Judges Pregerson and W. Fletcher have voted to deny

appellees’ petition for rehearing and petition for

rehearing en banc. Judge Sneed has voted to grant the

petition for rehearing and recommends granting the

petition for rehearing en banc.

The full court was advised of the suggestion for

rehearing en banc. An active judge requested a vote on

whether to rehear the matter en banc. The matter failed to

receive a majority of the votes of the nonrecused active

judges in favor of en banc consideration. Fed. R. App. P.

35(b).

App. 49

The petition for rehearing is DENIED and the

petition for rehearing en banc is DENIED.

App. 50

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT 479-3011

December 26, 2000

Mr. Thomas Dennis

Assistant Attorney General

1275 W. Washington

Phoenix, AZ 85007-2926

RE: Samuel Lewis, et al.

v. Dennis Johnson, et al.

Application No. 00A561

Dear Mr. Dennis:

The application for an extension of time within which

to file a petition for a writ of certiorari in the above-

entitled case has been presented to Justice O’Connor, who

on December 26, 2000, extended the time to and including

January 30, 2001.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

WILLIAM K. SUTER, Clerk

By /s/ Gail B. Johnson

Gail B. Johnson

Assistant Clerk

App. 51

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT 479-3011

NOTIFICATION LIST

Mr. Thomas Dennis

Assistant Attorney General

1275 W. Washington

Phoenix, AZ 85007-2926

Mr. Paul Gattone

Southern AZ People’s Law Ctr.

611 North 4th Avenue

Tucson, AZ 85701-8449

Clerk

United States Court of Appeals for

the Ninth Circuit

P.O. Box 193939

San Francisco, CA 94119-3939