Opposition Brief — Norwood v. Vance

; Supreme Cou, US

F'LED

JUN 30 2019

OFFICE OF THE CLERK

No. 09-1215

Iu the

Suprente Court of the United States

GREGORY LYNN NORWOOD, Petitroner,

Vv

STEVE J. VANCE., ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

RESPONDENTS’ OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

KDMUND G. BROWN JR.

Attorney General of California

MANUEL M. MEDEIROS

State Solicitor General

DAVID S. CHANEY

Chief Assistant. Attorney General

ROCHELLE C. EAST

Senior Assistant Attorney

General

TRACY S. HENDRICKSON

Supervising Deputy Attorney

Ceneral

JAMES EK. FLYNN

Deputy Attorney Generil

Counsel of Record

1300 1 Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 323-1976

Fax: (916) 324-5205

James. lynn@doj.ca.gov

Counsel for Respondents

QUESTIONS PRESENTED

Prison officials suspended outdoor exercise after

inmates attacked correctional officers, almost killing

one, in a facility that housed members of various

street gangs. After exercise was resumed, continued

violence caused prison officials to suspend exercise

again.

A jury found that the exercise suspensions

constituted deliberate indifference under the Eighth

Amendment. The Ninth Circuit reversed the verdict

because the district court refused to instruct the jury

that prison officials were entitled to deference when

balancing their competing obligations to ensur

institutional security and provide exercise and found

that prison officials were entitled to qualified

immunity.

1. When an inmate’s lawsuit contends

prison officials imposed cruel and

unusual punishment under the Eighth

Amendmert by restricting outdoor

exercise following outbursts of prison

violence, should a trial court instruct the

jury that it should defer to prison

officials’ professional judgment = and

considered choice about whether the

exercise restrictions were necessary to

stop the violence and prevent its

recurrence?

2. May the court of appeal! vacate a jury

verdict for instructional error and not

remand for a new trial, but instead elect

to review the facts in the light most

favorable to plaintiff and grant qualified

immunity where the _ plaintiff has

addressed that issue on the merits?

LIST OF PARTIES |

. Petitioner Gregory Lynn Norwood is a

California prisoner who was confined at

the California State Prison — Sacramento

at the time the events at issue.

. Respondents were prison administrators

at the prison at the time of the events at

issue and held the following positions:

Cheryl] Phler and Mike Knowles,

Wardens; James P. Walker and Thomas

P. Goughnour, Associate Wardens; and

Steve J. Vance and David I. Willey,

Correctional Captaims for the facility

where Norwood was housed.

il}

TABLE OF CONTENTS

Page

I to ESOS es aecn use couadarniionnia 1

Basis for Jurisdiction In This Court........................ 1

Constitutional Provisions And Statutes

RE TAT Ree ei eae Iot He Oe Pe AE RAE OD ORAS Fane |

Constitutional Provisions And Statutes

EE IE UINT SD ICR RP PERS APE RRL ID RAR A oe 2

CURE CE GIR CID oo onc c cn ncesencoscccccccavcccocceudcooceuses 3

Reasons Certiorari Should Be Denied................... 21

1. Certiorari Should be Denied -

Because the Ninth Circuit’s

Decision Comports with

Established Law, and Does Not

Conflict With the Decision of

‘Another Court of Appeall................... 21

II. Prison Officials Were Entitled to

Qualified Immunity. ......................... 28

SE Se SAAR LADLE SAAD :

1V

TABLE OF AUTHORITIES

Page

CASES

Allen v. Sakai

. OS Fe Ue CUER Cir, TSGG) oi incn ccc scccccsscscsescsee: 22

Bell v. Wolfish

re ee ee te fo isd seni ecce passim

Devereaux v. Abbey

263 F.3d 1070 (9th Cir. 2001) (en banc)........... 33

Farmer v. Brennan |

(SERIE m6. |: ner eos passim

Galvin v. Hay

TH Fe Fae COCR Cir, BOD) oo oncinccccncccevcocccesesss-: 35

Hebbe v. Pliler

et al., No. 2:00-cv-306-GEB-PAN (J FM) .......... 27

Hope v. Pelzer

RO a PP IE oo cn cincdaneccascecassupbenasenss 34, 35

Hoptowit v. Ray

eee ee Beer Cee Ce, TOBE) ooviccccinsievecian. 22

Hudson v. McMillian

I A i oa.20

Hunter .v. Bryant

a a i cocci dkc natu cscadnwetscueavanes) 33

Iacobucci v. Boulter

EOD Fe TO LNGE Cae, EODD) onvsicsciiscscsvnscsccccecivcs: 29

Johnson v. California |

Be Bre Ot CO) vinsisevasccctencanssoescacncossncans 25, 26

Johnson v. Lewts

217 F.30 120 CC Cir. 2000) ..;..cesccccncocsecs, passim

Norwood v. Vance

591 F.3d 1062 (9th Cir. Jan. 7, 2010)....... passim

TABLE OF AUTHORITIES

(continued)

Page

_ Ortiz v. Jordan

316 Fed.Appx. 449 (6th Cir. 2009), cert.

granted 2010 WL 1641312 (Apr. 26, 2010) ...... 29

Pell v. Procunier

6179 Ui. Bit CG kk 25, 26, 31

Spain v. Procunier

600 F.2d 189 (9th Cir. 1979) 0.0... eee 22, 34

T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n.

809 F.2d 626 (9th Cir. 1987) ................cccceeeseeeee 31

Toussaint v. Yockey

722 F.2d 1490 (9th Cir. 1984).......................006. 22

Turner v. Safley

AB2 U.S. 78 (1987) ..o-cococccccccceccesceseceseseseeees 25, 26

Whitley v. Albers

STG Ue OCA) bittstisisenvatscsntsernee passim

Wilson v. Seite

BO1 US. 24 CGO vcceiice acetate eee zi

STATUTES

99 U.B.C. © FOBT) oiscsecccibulsaseae 1

BO UBC. © FOS vevecsiecccsexctcivn ese 2

CONSTITUTIONAL PROVISIONS

U.S. Const. Amendment VIII................0........ passim

U.S. Const. Amendment AIV .......0cccccccccoccesccecvescees 26

OPINIONS BELOW

The opinion below is reported at Norwood v.

Vance, 591 F.3d 1062 (9th Cir. Jan. 7, 2010), and ‘is

reproduced at Petitioner’s Appendix 1.

BASIS FOR JURISDICTION IN THIS COURT

The court of appeals’ amended opinion and

order denying petitioner's petition for rehearing and

rehearing en banc was entered on January 7, 2010.

(Pet. App. 1, 3.) Norwood petitioned for writ of

certiorari on April 7, 2010. The Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const. amend. VIII provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishment inflicted.

29 U.S.C. § 1983 provides:

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

proceeding for redress, except that in any

action brought against a judicial officer for

an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was

violated or declaratory’ relief was

unavailable. For the purposes of this

section any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of the

District of Columbia.

STATEMENT OF THE CASE

A. . Facts |

Norwood is an African-American prisoner who

was confined in Facility B at the California State

Prison-Sacramento (CSP-Sacramento), where he was

serving a life-term for murder at the time of the

events at issue. (CR 124, DER 23:4-5, 10-11, 12-13.) !

Norwood had a history of disciplinary violations for

sneaking out of his cell and being out-of-bounds on

the prison’s main yard. (RT [Norwood] 558:16-21.)

1. Norwood’s Housing Unit at CSP-

Sacramento. |

CSP-Sacramento is a maximum-security prison

that houses California prisoners who pose the

greatest threat to institutional security and staff

safety. (CR 124, DER 23:14-15.) Facility B of the

prison housed approximately 1,000 maximum-

security prisoners of different races and ethnic

groups - African-American, Caucasian, Hispanic,

Asian, American Indian, and other (e.g., Pacific

Islanders). (CR 124, DER 23:18-20.) The facility was

known as the “gangster yard,” and most of the

violence at the prison occurred there. (DER 692, RT

[Pliler] 484:7-10.) Although Norwood was identified

as a member of the Black Guerrilla Family prison

gang when he arrived at the prison, that information

could not be verified, and he was not considered to be

affiliated with any gang at the time of the 2002 and

2003 exercise suspensions at issue. (DER 771, RT

[Norwood] 563:24-25.)

1 Citations are to the clerk’s record in the district court

and the excerpts of record on appeal.

The eight housing units that comprised Facility

B were built around a main yard where, absent

unusual conditions, outdoor exercise was available to

prisoners. (CR 124, DER 23:21-22. The facility also

had seven small concrete yards adjacent to all but

one of the housing blocks. (CR 124, DER 23:23-24:1.)

Each of those small yards could be used by no more

than twenty inmates at a time.

2. Lockdown and Suspension of Normal

Programming During 2002-2003 Violence at the

Prison.

In January 2002, prison officials locked down

Facility B and suspended normal programs,

including outside exercise on the main yard, after an

officer was stabbed in a dining hall and other officers

were attacked by Hispanic inmates. (CR 124, DER

24:15-17.) That attack set off a two-year period of

ongoing, pervasive violence at the prison.

Before these attacks, there had been no life-

threatening assaults on staff in the facility’s dining

halls. (DER 683, RT [Pliler] 485:9-15; DER 771, 765,

RT [Norwood] 557:3-21, 571:15-20; DER 463, RT

[Norwood] 455:17-21).) Afterwards, there were a

series of attacks on officers and inmate-on-inmate

attacks along racial lines by members of ethnic street

gangs over the next two years that prevented the

prison from resuming normal operations and that led

to further suspensions or modifications of normal

programs, including the outdoor-exercise program.

(CR 124, DER 24:18-25:4.) The lockdown and

suspensions of normal programming occurred against

a backdrop of violence that far exceeded anything

prison officials had seen before and that was directed

not only at officers, but also at other inmates, often

baséd on ethnic or gang conflicts. (DER 692, RT

[Pliler] 484:11-18.) Prison officials received reports

that there was a statewide “green light” for inmates

to attack officers. (DER 8738. RT [Pliler] 665:10-

667.4.)

There is no general policy that mandates when

to lock down a prison; what programs, including

outdoor exercise, should be suspended and for which

inmates; or when and how normal programming can

be safely resumed. (DER 876, RT [Pliler] 668:7-14.)

Those decisions depend on the facts of each incident.

(Id.)

During a lockdown, normal programming is

suspended. (CR 124, DER 24:2-5.). Inmates are

confined to their cells and fed there, and are not

allowed to go to assigned work or. education

programs, the law library, religious services, or

regular visiting. (Id.) Canteen and telephone

privileges are suspended, and inmates are not

allowed to exercise on the yard. (/d.) Essential

services, such as medical care, are provided, and

inmates are allowed to shower under controlled

circumstances. (/d.)

After a lockdown is imposed and the prison is

secured, prison officials investigate and report on

what occurred. (DER 695-97, RT [Pliler] 487:21- .

489:10.) That process is time-consuming and

requires staff to interview inmates, often more than

once; search cells and common areas; screen

telephone calls and mail; and evaluate security to

determine whether, when, and how. normal

programming can be resumed. (DER 897, RT [Pliler]

689:12-18.]

The goal is to resume normal prison operations

as quickly as safety allows. (DER 878, RT [Pliler]

670:1-5.) When prison officials believe it is safe to do

so, they can allow all or selected groups of inmates to

use the main exercise yard, or allow smaller groups

of inmates to use the small concrete yards for outdoor

exercise to see how they behave in a controlled

setting. (DER 879, RT [Pliler}] 671:3-9.)

Although the. small yards were used on

occasion, they were generally not used to exercise the

whole general population in Facility B because gangs

or ethnic groups often pressured other inmates to

participate in violence, and the refusal of an inmate

to do so could pose a risk to his safety because he

could be attacked and injured on the yards. (DER

661, RT [Phler] 453:7-23.) Instead, the small yards

were used as the first step in determining whether

small groups of compatible inmates could exercise

together safely again. (/d.)

For example, after the January 2002 lockdown,

Southern Hispanic inmates, who were responsible for

the staff assault that had led to the lockdown, were

initially allowed to exercise on the small yards before

being allowed access to the main yard. Likewise,

African-American inmates used those yards after

their access to the main yard was_ suspended

following Crip assaults on staff. And White and

Southern Hispanic inmates used those yards after

inmate-on-inmate violence involving those groups.

(CR 158-2, DER 94, 102, 130, 162, 164, 166, 168.)

Even when prison officials felt it was safe to use

the small yards, assaults also happened there. (DER

927-28, RT [Pliler}] 719:9-720:23.) | When that

occurred, officials were back to square one and had to

re-impose restrictions and start all over. (Id.) Asa

result, officials were cautious and wanted to be sure

it was safe before releasing inmates to exercise.

(DER 935, RT [Pliler] 727:22-2; (DER 685, RT [Pliler]}

477:23-24.) Because of similar’ safety concerns,

prison officials did not use. the housing-unit day

rooms for exercise. (DER 662, RT [Pliler] 454:15-24.)

3. Suspension of Norwood’s Outdoor

Exercise.

Because of the ongoing violence in Facility B,

normal prison operations were suspended for almost

two years. During that time, prison officials modified

prison programs, including access to exercise on the

yard, to stop the violence and prevent its recurrence.

As a result, Norwood was not allowed outdoor

exercise for about eighty days during the first two

suspensions of outdoor exercise, five months during

the third, and about sixty days during the fourth.

(CR 124, DER 24:9-13.)

Prison officials did not believe that Norwood

would suffer physical or mental consequences as a

result of the time he was denied outdoor exercise

because essential medical and mental health services

were provided, and he sustained no actual harm

because of the restrictions on outdoor exercise. (DER

856, RT [Vance] 648:5-23; DER 885, RT [Plier]

677:21-678:1; DER 939, RT [Goughnour] 731:7-16;

CR 152, DER 6:13-21, DER 8:20-28, DER 10, 21-27,

DER 12:26-13:6.)

4. Initial Lockdown and Suspension of

Outdoor Exercise - January 4 to March 27, 2002.

On January 4, 2002, inmates attacked officers

in a Facility B dining hall, stabbing one and almost

killing him. (CR 124, DER 24:15-17; DER 707, RT

{[Pliler] 499:6-12.) After restoring control, prison

officials locked the facility down and began an

investigation. Prison officials only knew that staff

injuries were serious and that the attackers were

Hispanic inmates. (DER 706, RT [Pliler] 498:1-10.)

They did not know whether the attack was planned

or was an isolated incident. (DER 706, RT [Plier]

498:16-24.) Inmates of vazious races worked in the

dining room and prison officials never determined

the inmates to whom the weapons used in the attacks

velonged. (DER 770, RT [Norwood] 562:13-22.)

Almost immediately after the lockdown was

imposed, an inmate assaulted and seriously injured

another inmate in the facility, and, about two weeks

later, weapons were confiscated from three inmates.

(DER 900, RT [Plier] 692:10-17.) Then, a month

later, an inmate was killed, and shortly after that,

there was another inmate-on-inmate attack. (ld.

692:16-19.)

By mid-March 2002, prison officials determined

that inmates associated with Hispanic street gangs

were responsible for the January 2002 attacks,

moved the responsible: iimates to other prisons, and

began relaxing program restrictions and resuming

normal operations. (CR 158-2, DER 71.) The first

inmates allowed to resume outdoor exercise were

critical inmate workers, and Norwood was among the

second group of those workers who were allowed to

resume exercise in late March 2002. (DER 897, RT

[Pliler] 689:19-23.)

5. Second Suspension of Outdoor

Exercise Lockdown - May 8 to July 31, 2002.

Normal programming and exercise had not been

fully restored for all inmates in the facility when

another assault on staff occurred May 8, 2002. (CR

158-2, DER 83-84.) About a month earlier, normal

yard exercise had resumed for all inmates, except

Hispanics. (CR 158-2, DER 75.) But less than a

week later, there was a stabbing involving White

inmates on the main yard, and prison officials noted

that there was tension involving African-American

inmates associated with Crip street gangs from the

Los Angeles area. (CR°1¢8-2, DER 77.) The next

day, there was a stabbing assault involving White

and Southern Hispanic inmates. (Id.) As a result,

Southern Hispanics, Southern Crips, and White

inmates were not allowed on the main yard. (/d.)

At the end of April, prison administrators

resumed normal yard exercise for Southern Crips,

but not for White and Southern Hispanic prisoners.

(CR 158-2, DER 81.) Yard for other prisoners,

including African-American inmates like Norwood,

remained normal. (/d.) White inmates who were

critical workers were allowed to resume normal yard

exercise several days later. (CR 158-2, DER 83.)

A week later, in early May 2002, an African-

American inmate, who was a Crip gang member,

stabbed an officer in a dining hall. (CR 158-2, DER

85.) Prison administrators responded by

discontinuing the resumption of normal

10

programming, including yard for all inmates. (Jd.)

All African-American inmates, including inmates like

Norwood who were not affiliated with gangs, were

locked down because gang members often pressured

unaffiliated inmates to assist them by carrying

messages to other inmates during lockdowns. (DER

901, RT [Phler}] 693:18-694:18.)

In late May 2002, prison officials began to

gradually restore normal programming; and by mid-

July 2002, they allowed some prisoners, other than

African-American inmates, to resume _ outdoor

exercise. (CR 158-2, DER 87-94.) Southern Hispanic

inmates were allowed to use the small concrete yards

in groups of sixteen prisoners at a time. (CR 158-2,

DER 94.) White, American Indian, and inmates of

other races who were critical workers were allowed

limited access to the main yard. (/d.)

Normal yard resumed for all inmates, except

African-Americans, about a week later, but the

number of inmates on the yard at any time was

limited to 100. (CR 158-2, DER 100.) The following

week, Norwood and other African-American inmates

were allowed to exercise in groups of twenty on the

small concrete exercise yards, and the number of

other inmates who could use the main yard at any

time was increased to 150. (CR 158-2, DER 102, pp.

38-39.) |

During the second lockdown, there were six

batteries on officers and one on an inmate. (DER

901, RT [Plier] 693:10-16.)

il

6. Third Suspension of Outdoor Exercise

- December 28, 2062 to May 15, 2003.

Normal programming and outdoor exercise had

not been fully restored when, in early August 8, 2002,

a White inmate was stabbed on the main exercise

yard. (CR 158-2, DER 102-107.) Prison officials

suspended access to the main yard for White inmates

and continued to limit yard exercise for Norwood and

other African-American inmates to groups of twenty

on the small concrete yards. (/d.) Access to the main

exercise yard for other inmates continued to be

limited to 150 at a time. (/d.)

About a week later, staff discovered a

significant amount of metal, which could be used for

weapons, missing from the dining halls. (CR 158-2,

DER 108.) Prison officials locked down Facility B

and suspended yard until searches of the cell blocks

could be completed. (/d.) Several days later, a

number of White and Hispanic prisoners were

seriously injured in an incident on one of the small

concrete yards. (CR 158-2, DER 112.)

At the end of August 2002, normal yard was

resumed for African-American, American Indian, and

other inmates, but not for White and Hispanic

inmates, who had been involved in the most recent

violence. (CR 158-2, DER 114.) Five days later,

African-American inmates, who were members of the

Bloods street gang, assaulted inmates in one of the

cell blocks. (CR 158-2, DER 116.) Prison officials

altered programming for Blood inmates, including

discontinuing yard. (Id.) Norwood, and other

African-American inmates, who were not Bloods,

were allowed outdoor exercise on the main yard.

12

(DER 906, RT [Pliler] 698:22-700:6.) Yard for White

and Hispanic inmates remained suspended. (CR 158-

2, DER 116.)

Three weeks later, in late September 2002, staff

found more metal, which could be used for weapons,

missing from the facility's medical clinic. (CR 158-2,

DER 118.) Prison administrators restricted inmate

access to work areas and suspended yard Exercise for

all Level [V inmates, including Norwood. (/d.) After

an investigation, normal yard was restored a few

days later for all inmates, except Hispanics, who

were allowed to exercise on the small concrete yards.

(CR 158-2, DER 120.) But the next day, yard

exercise was again suspended for all inmates after

several inmates were seriously injured as prisoners

were being released to the main yard because of an

altercation involving White and Hispanic inmates.

(CR 158-2, DER 142.) Officers searched the main

yard and found numerous weapons in the areas used

by White and African-American inmates. (/d.)

Two months later, in late November 2002,

prison officials learned that Blood inmates were

' planning to attack staff and suspended yard exercise

for them, but not for other African-American

inmates. (CR 158-2, DER 126.) After another

incident the following month involving White and

Southern Hispanic inmates in which a White inmate

was scriously injured, yard was suspended for all

inmates until staff could move White and Southern

Hispanic inmates into separate housing units. (CR

158-2, DER 130.)

13

Then, on December 28, 2002, African-American

inmates, who were Crip gang members, attacked and

tried to kill an officer on the main yard. (CR 158-2,

DER 132; DER 955, RT [Tatum] 747:1-15.).) Prison

officials suspended yard exercise for all Level IV

inmates, including Norwood, and searched the cells

of all general population inmates in Facility B. (CR

158-2, DER 139, 141.) |

In mid-February 2003 there was an incident

involving White inmates and use of a deadly weapon

in one of the cell blocks. (CR 158-2, DER 149.)

Prison officials ordered that the cells of White

inmates in two housing blocks be searched. (Id.)

Yard exercise was suspended for all Level IV

inmates, except Asian, American Indian, and Other

(e.g. Pacific Islander) inmates, groups who had not

been involved in the violence that had occurred. (/d.)

The following month, prison officials allowed

White and Southern Hispanic inmates to exercise on

the small concrete yards, but continued the

suspension of yard for African-American inmates.

(CR 158-2, DER 162.) However, in early May 2003,

White prisoners were involved in two separate

assaults on inmates that resulted in serious injuries

to other prisoners. (CR 158-2, DER 164.) Asian-

American, and other prisoners were allowed normal

yard access, but yard access was suspended for White

prisoners. (/d.)

Several days later, prison officials allowed

White inmates, as well as Southern Hispanic and

African-American inmates, to exercise on the small

concrete yards adjacent to their housing units on a

rotating schedule and in the evening because of the

14

large number of inmates involved. (CR 158-2, DER

164, 166, 168.)

During the third suspension of outdoor exercise,

there were four attempted batteries on officers, five

batteries or attempted murders of inmates, five

instances of inmate possession of weapons, and one

instance of an inmate inciting a disturbance. (DER

916-17, RT [Plier] 708:19-709:12.)

7. Fourth Suspension of Outdoor

Exercise - September 3 to November 4, 2003.

Normal programming, including access to the

main yard, still had not been fully restored because

of ongoing attacks by inmates on each other, when

the next staff assault occurred in September 2003

(CR 158-2, DER 170-171.)

On June 1, 2003, two weeks after Norwood was

allowed to resume exercise with other African-

American inmates on the small concrete yards,

another slashing incident involving White inmates

occurred in a cell block. (CR 158-2, DER 170.) Yard

was suspended for White inmates. (/d.) By mid-

June 2003, only Level IV White inmates were not

allowed on the main yard. (CR 158-2, DER 172.)

But days later, prison officials received

confidential information that African-American

inmates, who were Crip gang members, were

planning to attack staff. (CR 158-2, DER 174.)

Prison officials responded by locking down Crip

inmates and those celled with them, and suspending

their yard privileges. (Id.)

15

A month later, after White and Crip inmates

had been allowed to resume use of the main yard,

Crip inmates attacked an inmate on the yard, and

officers found a weapon. (CR 158-2, DER 176.) The

next day, there was an assault by White inmates on

the yard. (/d.) Prison officials suspended yard for all

inmates while the main yard was searched. (/d.)

After yard privileges had been restored for some

inmates, prison officials again suspended yard

exercise in late August 2003 for Crip and Hispanic

inmates who were members of the Border Brothers

street gang, and inmates who were celled with them.

(CR 158-2, DER 184.)

Less than two weeks later, prison officials

suspended yard for all Level IV inmates and locked

down Crip inmates and those celled with them after

a Crip inmate slashed a female officer with the lid of

a tuna can and threw her down two flights of stairs.

(CR 158-2, DER 185; DER 712-13, RT [Willey] 504:1-

505:21; DER 737, RT [Walker] 529:5-7.) A few days

before, the inmate had been counseled by the officer

for masturbating in front of her. (DER 732, RT

[Walker] 524:4-7.) The inmate was being escorted to

a shower, but was not required to be in restraints.

(DER 732-33, 747-48, RT [Walker] 524:24-525:1;

539:6-8; 540:9-12.) ‘The attacker, and two other

inmates who were suspected of being involved, were

placed in administrative segregation. (DER (DER

713, 718, 738, RT [Willey] 505:10-16; 510:19-22; DER

738, RT [Walker] 530:13-15.)

Prison officials were not sure whether this was

an isolated incident or whether other attacks were

planned. (DER 720, RT [Willey] 512:4-9.) Because of

16

the series of actual and planned staff assaults that

had occurred, prison officials locked down the prison,

and declared a state of emergency. (DER 735, RT

[Walker] 527:3-14, CR 158-2, DER 187.) Only those

inmates with low security levels, who were housed in

dorms, were allowed exercise on the main yard. (CR

158-2, DER 187.) After an investigation, prison

officials concluded that the attacker acted alone.

(DER 742, RT [Walker] 534:1-2.)

Norwood was allowed to resume yard on

November 4, 2003, but the violence continued, and

normal yard remained suspended for Crip and Level

IV White inmates and those who were celled with

them. (CR 158-2, DER 190-91.) This lockdown

ended on December 3, 2003. (CR 124, DER 25:1-2.)

B. Proceedings in the District Court

This action proceeded on the second amended

complaint filed June 7, 2005. (CR 25, 28.) Prison

officials answered the complaint and _ asserted

qualified immunity from damages as an affirmative

defense. (CR 30, 48.)

Prison officials moved for summary judgment on

March 23, 2006. (CR 79.) <A magistrate judge

granted summary judgment on the injunctive-relief

claim because it was moot, but denied qualified

immunity on the damage claims because he

concluded that, although the suspensions of exercise

in response to violence were justified, prison officials

had not provided (1) “specific evidence” that a

“security emergency’ continued until Norwood was

allowed to resume outdoor exercise, and (2) evidence

showing why African-American ‘inmates, like

17

Norwood, were the last inmates to be allowed to

resume exercise after the last three lockdowns. (CR

103, 40:17-14; 43:4-9.) The district court adopted the

findings and recommendations on March 5, 2007.

(CR 105.)

The pretrial order stated that prison officials

had not abandoned any issues and that they renewed

their contention that they were entitled to qualified

immunity on the basis of the evidence to be presented

at trial. (CR 24, DER 28:8-11.) The pretrial order

also stated that the decision to impose a lockdown

and suspend exercise in response to staff assaults

was proper and governed by the malicious-and-

sadistic standard in Whitley v. Albers, 475 U.S. 312

(1986). (CR 124, DER 25:10-11.) Consistent with

Ninth Circuit precedent, the district court found that

the. deprivation of outdoor exercise after the

“precipitating event” was governed by the deliberate-

indifference standard of Farmer v. Brennan, 511 U.S.

825 (1994). (CR 124, DER 25:12-26:9.)

At trial, defendants requested the following jury

instruction:

The deprivation of regular outdoor exercise

can constitute cruel and _ unusual

punishment in violation of the Eighth

Amendment. A prisoner's right to outdoor

exercise, however, is not absolute. Such

exercise must be provided. unless

inclement weather, unusual

circumstances, or disciplinary needs made

that impossible

In considering whether defendants were

deliberately indifferent to the need for

outdoor exercise, the jury should consider

18

that defendants had a _ compelling

obligation under the Eighth Amendment to

ensure the safety of prisoners, including

protecting prisoners from each other. In

considering these factors, you should give

deference to prison officials in the adoption

and execution of policies and practices that

in their judgment are needed to preserve

discipline and to maintain internal

security in a'prison. (CR 139, p. 12; DER

21.)

Defendants’ instruction referenced Bell v.

Wolfish, 441 U.S. 520 (1979).

When petitioner objected to that instruction, the

trial judge said he had not read the Supreme Court

authority on which prison officials relied, but that he

had read the Ninth Circuit cases, and that there was

no doubt that prison officials had a competing

obligation to ensure prisoner safety; that he knew it;

and that although he did not know if a lay person

would know it, he “would be shocked” if a juror did

not. ((DER 989; RT 781:19-24.) The district court

judge then said he did not understand what

“deference” meant in the circumstances of this case,

did not know the context in which it had been used in

the cases cited for the proposed instruction, and

refused to give the requested instruction. (DER 989,

RT 782:23-783:22.)

During its deliberations, the jury requested

further instructions on the meaning of “deliberate

indifference,” with emphasis on “deliberate.” (CR

140, DER 15.) The district court referred the jury to

another instruction that did not contain’ the

requested deference language, but instead instructed

the jury that prison officials could be hable if they

19

disregarded a serious risk of harm without taking

reasonable measures to correct it. (DER 1093, RT

855:20-21.)

The jury rendered a verdict on November 8,

2007, finding that prison officials had violated

Norwood’s Eighth Amendment rights, even though

he had suffered no actual harm from the temporary

exercise suspensions and awarded nominal damages

of $1 against each defendant for each lockdown in

which they were involved and a total of $39,000 in

punitive damages. (CR 152; DER 7:1-6, DER 9:8-13,

DER 11:8-12, DER 13:15-20.) On November 13,

2007, the district court entered judgment for plaintiff

in accordance with the jury’s verdict. (CR 153; DER

4.) Prison officials appealed on December 12, 2007.

(CR 157; DER 1-3.)

c. Proceedings in the Court of Appeal

On appeal, the Ninth Circuit held that the

district court erred in refusing to give the requested

Bell deference instruction because: the Farmer

deliberate-indifference instruction by itself did not

alert the jury that it was required to defer to prison

officials’ judgment where measures to maintain

institutional security, and the safety of prisoners and

staff, were concerned. Norwood, 591 F.3d at 1067.

The court of. appeals found that the requested

instruction was not drawn from Whitley, but from

Bell, and that deference applied in both excessive-

force cases and _ conditions-of-confinement cases

where institutional security, staff safety, and inmate

safety were concerned. Jd. The court reasoned that a

jury would not know that it had to defer unless it was

told to do so, and that the failure to give the

20

instruction resulted in an incomplete and misleading

statement of the law that was prejudicial because the

jury might well have reached a different verdict if

properly instructed. Id.

The court of appeals then held that remand for

a new trial was unnecessary because prison officials

were entitled to qualified immunity since the right to

outdoor exercise in the midst of severe ongoing prison

violence was not clearly established so that a

reasonable officer would know that his conduct was

unlawful in the situation he confronted. Norwood,

591 F.3d at 1068 (citing Saucier v. Katz, 533 U.S.

194, 202 (2001). In recognition that: the qualified

immunity inquiry is highly context-sensitive, the

court explained that the cases Norwood cited were

distinguishable on their facts because they either

concerned denials of exercise for inconsequential

logistical concerns, or the rights of prisoners confined

in administrative segregation or disciplinary

detention for periods of time ranging from one to four

years, rather than attempts to restore order during a

series of brutal attacks, some lethal or nearly so. /d.

The court of appeals went on to explain that, in

the factual circumstance at issue in Norwood, prison

officials had a duty to keep inmates safe and protect

them from each other, and had to balance that

imperative against the obligation to provide outdoor

exercise. Jd. The circuit court held that when the

violence rises to unusually high levels, prison officials

could reasonably believe that it. was lawful to

temporarily restrict outdoor exercise to bring the

violence under control. Jd. And prison officials are

entitled to wide-ranging deference in balancing those

obligations, and their judgment about when it was

21

safe to restore exercise and other programs should

not be lightly second-guessed. Jd. at 1069-70. °

Finally, the Ninth Circuit found that district courts

in the circuit had found no Eighth Amendment

liability on similar facts, further indicating that the

law was not clearly established.

REASONS CERTIORARI SHOULD BE DENIED

The Court should deny certiorari because there

is no circuit conflict; the court of appeal properly

applied established law, and review of its factual

findings is not a reason to grant the petition.

I. CERTIORARI SHOULD BE DENIED

BECAUSE THE NINTH CIRCUIT'S

DECISION COMPORTS WITH

ESTABLISHED LAW, AND DOES NOT

CONFLICT WITH THE DECISION OF

ANOTHER COURT OF APPEAL.

The Eighth Amendment prohibits cruel and

unusual punishment. U.S. Const. amend. VIII. “It is

obduracy or wantonness, not inadvertence or error in

good faith, that characterizes the conduct prohibited

by the Cruel and: Unusual Punishments Clause,

whether that conduct occurs in connection with

establishing conditions of confinement, supplying

medical needs, or restoring official control over a

tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294,

298-99 (1991). Wantonness “does not have a fixed

meaning, but must be determined with ‘due regard to

differences in the kind of treatment against which an

Eighth Amendment objection is lodged.’ ” Jd. (citing

Whitley v. Albers, 475 U.S. 312, 320 (1986).

22

A prisoner is entitled to some form of regular

outdoor exercise, and the long-term denial of outdoor

exercise can constitute a violation of the Eighth

Amendment. Allen v. Sakai, 48 F.3d 1082, 1087 (9th

Cir. 1995); Spain v. Procunier, 600 F.2d 189, 200 (9th

Cir. 1979) (prisoners in dic linary detention over

four years). The denial of outdoor exercise, however,

is not per se unconstitutional, and prison officials can

suspend inmate access to it in response to

emergencies involving institutional safety and

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

Cir. 1982). There is no bright-line test for

determining whether the denial of outdoor exercise

for safety and security reasons is unconstitutionally

long; the inquiry must proceed from the individual

facts of each case. Toussaint v. Yockey, 722 F.2d

1490 (9th Cir. 1984).

“[Mjaintaining institutional security and

preserving internal order and discipline are essential

goals that may require limitation or retraction of the

retained rights of convicted prisoners...” Bell, 441

U.S. at 546-47 (recognizing that internal security

within the correctional facilities themselves is central

to all other correctional goals). Whether the prison

d.sturbance is a riot or a lesser disruption, prison

otncials must balance the need to maintain or restore

discipline through force or other means against the

risk of injury to inmates. Hudson v. McMillian, 503

U.S. 1, 6-7 (1992). Both situations may require

prison officials to act quickly and decisively, and both

implicate the principle that prison 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 discipline and to maintain institutional

23

security. Id. (citing Whitley, 475 U.S. at 321-322, and

Bell, 441 U.S. at 547.) Whenever prison officials

stand accused of using excessive physical force in

violation of the Eighth Amendment, the core judicial

inquiry is that set out in Whitley: whether force was

applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause

harm. Id.

Because a prison Official’s obligation to provide

for prisoner medical needs “does not ordinarily clash

with other equally important government

responsibilities,” deliberate indifference constitutes

wantonness in that context. Hudson, 475 U.S. at

320; Farmer v. Brennan, 511 U.S. 825, 833-34 (1994).

That is because deliberate indifference can typically

be established or disproved without the necessity of

balancing competing institutional concerns for the

safety of prison staff and other inmates. Whitley, 475

U.S. at 320 (citing Estelle v. Gamble, 429 U.S. 97

(1976). But when institutional safety and security

concerns are present, the deliberate-indifference

standard does not always capture the importance of

balancing competing obligations. Whitley, 475 U.S.

at 320:

The Ninth Circuit applies a combination of

Whitley and Farmer analysis to the kind of rolling,

widespread prison violence at issue here. Johnson v.

Lewis, 217 F.3d 726, 733-34 (9th Cir. 2000). — It

applies the Whitley malicious-and-sadistic/good-faith

standard to the initial measures taken to stop

violence, even though the exercise suspensions

themselves do not involve the use of physical force,

and the Farmer deliberate-indifference standard to

whether circumstances warrant the continuation of

24

exercise restrictions to prevent the recurrence of

violence. Jd. The rationale for using different

standards is that the emergency situation that

existed at the time of the riot would presumably be

absent at the time prison officials had to make

decisions regarding conditions of confinement during

a lockdown. Td. In the case of exercise, that

rationale does not take into account competing

concerns about preventing the recurrence of violence,

or that the Eighth Amendment inquiry remains the

same — whether the exercise restrictions were

imposed or maintained for the purpose of causing

harm or to ensure institutional security, staff safety,

and inmate safety. As a result, a district court, can

deny qualified immunity and ask the jury to decide

whether an “emergency” continued to exist that

warranted the continued exercise restrictions, 1.e. the

kind of hindsight decision about the reasonableness

of a particular security measure neither a court or

jury is supposed to make.

This Court need not grant certiorari to decide

whether that combination of standards applies

because the Ninth Cuircuit’s requirement of a

deference instruction and qualified immunity finding

produced the proper result. A heightened standard

of deference under the deliberate-indifference

standard applies to post-riot actions taken by prison

officials immediately after a riot, although it may be

less than the Whitley standard applied in the face of”

immediately exigent circumstances. Lewis, 217 F.3d

at 733-34. When the potential for prison violence

ripens into actual unrest, the admonition that a

prison’s internal security 1s peculiarly a matter

normally left to the discretion of prison

25

administrators carries special weight. Whitley, 475

U.S. at 321.

The principle that judges and juries must afford

wide-ranging deference to prison officials’ judgments

about policies and practices to preserve and maintain

institutional security is well-established. Decisions

regarding prison security are peculiarly within the

province and professional expertise of prison officials,

and, in the absence of substantial evidence in the

‘record to indicate that officials have exaggerated

their response to these considerations, courts and

juries should ordinarily defer to their expert

judgment in such matters. Pell v. Procunier, 417

U.S. 817, 827 (1974). The deference accorded to

prison officials extends to measures taken in

response to violence, as well as to measures taken to

prevent :ts recurrence. Whitley, 475 U.S. at 322-23.

The deference owed to prison officials does not

insulate them from actions taken in bad faith and for

no legitimate purpose, but it does require that

neither a judge nor jury freely substitute their

judgment for that of officials who have made a

considered choice. Id. at 322.

The. jury instruction requested by prison

officials and rejected by the district court accurately

stated the law. There is no conflict with this Court’s

precedent or that of other circuits.

A deference instruction in conditions-of-

confinement cases, where there are competing

institutional safety and security concerns, does not

conflict with Johnson v. California, 543 U.S. 499

(2005). In Johnson, this Court declined to apply the

Turner reasonable-relationship test to a claim that

26

racial classifications in a prison reception center

violated the Equal Protection Clause of the

Fourteenth Amendment. Johnson, 543 U.S. at 509-

10. Norwood concerned only an Kighth Amendment

outdoor exercise claim, and the Ninth Circuit stated

that its opinion did not address any race-based

aspect of the lockdowns or any potential equal

protection claim. Norwood, 591 F.3d at 1066 n.1.

The Court in Johnson stated the reasonable-

relationship test set forth in Turner v. Safley, 482

U.S. 78 (1987) applied only. to rights that are

inconsistent with proper incarceration; it did not

apply to Eighth Amendment claims of deliberate

indifference. Johnson, 543 U.S. 509-11. The court of

appeals in this case did not apply Turner, as

petitioner contends, but rather Farmer’s deliberate-

indifference test. Norwood, 591 F.3d at 1067. And

Johnson did not hold that prison officials are not

entitled to deference in any Eighth Amendment case,

but only that “mechanical deference” is not

appropriate. Johnson, 543 U.S. at 510 (citing Spain,

600 F.2d at 193-94.)

Johnson did not reverse Bell, Pell, Whitley, or

any of this Court’s other precedents holding that

deference is owed where there are competing

concerns between institutional safety and security

and the obligation to provide outdoor exercise. And,

Johnson did not hold that a jury instruction that

properly stated the law as to the deference that is

owed in cases like this was improper. Norwood

concedes that deference undergirds the Whitley and

Farmer standards, but he argues that this Court

should announce a general rule that bars trial courts

from giving a deference instruction in these cases

27

because deference is “implied” in the standards

themselves and giving an explicit deference

instruction would amount to “a directed verdict.”

Because deference is the law, it caanot be

improper to instruct the jury to apply deference; in

fact, failure to do so would make the instruction

incomplete and misleading, as the Ninth Circuit

held. Norwood, 591 F.3d at 1067. The same

_ considerations that apply to measures taken to stop

‘prison violence also apply to measures taken to

prevent its recurrence. Whitley, 475 U.S. at 322. As

the Ninth Circuit explained, _ restrictions on

confinement and the use of force are “often flip sides

of the same coin” because a “more restrictive

confinement may diminish the need for force and vice

versa.” Norwood, 591 F.3d at 1067. Following

Norwood, the Ninth Circuit added deference

language to its deliberate-indifference instruction.

9th Cir. Model Civ. Jury Instr. 9:25 (2009).

Petitioners assertion that a deference

instruction is never given in deliberate-indifference

cases is not supported by any authority and

misstates the facts. The same instruction rejected in

Norwood was given by the same court in a prior

Eighth Amendment deliberate-indifference case

against some of the same defendants involving a

lockdown and suspension of exercise following a

prison riot several years before in which inmates

assaulted each other. See Hebbe v. Pliler, et al., E.D.

Cal. No. 2:00-cv-306-EFB P, CR 147, Instr. 17, filed

Sept. 7, 2007.)

28

The Ninth Circuit properly found that a

deference. instruction should be .given in deliberate

indifference cases like this, where prison officials

have competing obligations to ensure institutional

security and prisoner safety, and to provide access to

exercise, because the Farmer standard by itself did

not capture those competing obligations and left the

jury with the belief that it was free to substitute its

judgment for that of prison officials about how that

balance should have been struck. Whitley, 475 U.S.

at 320. As the Ninth Circuit found, prison officials

err on the side of caution in maintaining the

lockdowns for longer than necessary, but, when it

came to matters of life and death, such caution was a

virtue; and no official could have reasonably

anticipated that such prudence would be found to

violate the Eighth Amendment. Norwood, 591 F.3d

at 1069.

Because all the factual circumstances in which

deference is owed to the judgment of prison officials

cannot be anticipated, Norwood’s argument that no

deference instruction should be given in any Eighth

Amendment deliberate-indifference case is unwise

and inappropriate. This Court should not grant

certiorari to adopt such a rule.

Il. PRISON OFFICIALS WERE

ENTITLED TO QUALIFIED

IMMUNITY.

Petitioner argues that the Ninth Circuit (1) did

not defer to the jury’s verdict and findings in

granting qualified immunity, or (2) that it did not

review the evidence presented at trial in the light

most favorable to him. Both arguments ask this

29

Court to review the Ninth Circuit’s assessments of

the facts and inferences to be drawn from those facts,

and this Court should deny certiorari to do so.

A. The Ninth Circuit Was Not Required

to Defer to the Jury’s Verdict Because Its

Findings Were a Nullity, Having Been Vacated

for Instructional Error.

Norwood argues that the Ninth Circuit ignored

precedent that requires a court to construe evidence

in favor or the prevailing party when the defense of

qualified immunity is asserted, and that deference

should be afforded to the “jury’s discernible

resolution of disputed factual issues.” (Pet. Br. 12-

13.) Norwood has misstated the law.

The allegedly conflicting decisions’ are

distinguishable because, unlike Norwood, they do not

concern a grant of qualified immunity where a jury

verdict was vacated for instructional error. . In

Iacobucci v. Boulter, 193 F.3d 14 (Ast Cir. 1999) and

other cases cited by Norwood, the jury’s verdict was

not vacated for instructional error. (Pet. Br. 12-13,

16.). For that reason, Norwood is not like Ortiz v.

Jordan, 316 Fed.Appx. 449 (6th Cir. 2009), cert.

granted 2010 WL 1641312 (Apr. 26, 2010) (granting

qualified immunity after jury verdict that was not

vacated for instructional error.)

The Ninth Circuit properly found that the

failure to give additional guidance on deference

rendered the instruction incomplete and misleading,

and that the jury might well have reached a different

conclusion if it had been properly instructed.

Norwood, 591 F.3d at 1062 (citing Clem v. Lomeli,

30

566 F.3d 1177, 1182-83 (9th Cir. 2009)). For that

reason, there is no jury verdict to which the court of

appeal was required to defer in deciding the qualified

immunity question, and no conflict that warrants the

grant of certiorari.

Because Norwood addressed the qualified

immunity question on the merits in his appeal, the

Ninth Circuit was free to exercise its discretion to

review the evidence de novo in the light most

favorable to plaintiff, rather than remanding for a

new trial, and to find that prison officials were

entitled to qualified immunity. Norwood 591 F.3d at

1067-68.

B. The Ninth Circuit Reviewed the

Evidence De Novo and in the Light Most

Favorable to the Prisoner.

Norwood argues that the Ninth Circuit did not

consider all the evidence in the record, and that it

improperly found that he failed to offer evidence that

prison officials acted in bad faith or with punitive

intent. Norwood, 591 F.3d at 1069. That argument

rests primarily on the claim that the jury’s verdict is

an implicit finding of bad faith. However, because

the jury verdict was vacated for instructional error, it

has no evidentiary significance. The Ninth Circuit

properly reviewed the facts in the light most

favorable to petitioner. Norwood’s request that this

Court review the court of appeals’ factual findings

and assessment of the evidence is not a reason to

grant certiorari.

31

Norwood, cannot rely on a jury award that is a

nullity because it was vacated, and the court of

appeals was not required to draw inferences that are

not supported by facts. 7.W. Elec. Serv., Inc. v.

Pacific Elec. Contractors Ass’n., 809 F.2d 626, 631-32

(9th Cir. 1987) (citing Anderson v. Liberty Lobby Inc.,

477 U.S. 242, 248 (1986)).

The Ninth Circuit properly found that Norwood

did not offer evidence that the lockdowns were meant

to be punitive or were otherwise implemented in bad

faith, circumstances in which deference is not owed.

Norwood, 591, F.3d at 1069; Whitley, 475 U.S. at 322-

23. This is not a case where there was evidence that

prison officials denied adequate food, water, and

shelter in order to punish prisoners for a_ riot.

Compare Lewis, 217 F.3d at 731-35. (Summary

judgment denied where inmates were exposed to

elements and high temperatures on prison exercise

yard and not provided toilets, water, and edible food

for four days after a riot, and officers made

statements showing punitive intent).

Norwood did not present substantial evidence

that prison officials’ actions were an exaggerated

response to what no one disputed was ongoing

serious violence and threats to institutional security

and staff and inmate safety. Pell, 417 U.S. at 827.

Contrary to Norwood’s argument, the Ninth Circuit

did not ignore his evidence, but found that it did not

support his claims. Norwood, 591 F.3d at 1069-70.

As the court of appeals explained, restricting exercise

for all inmates, rather than specific groups, and

imposing those restrictions, in some cases, for a

longer time after assaults on staff than after assaults

on inmates did not support an inference of punitive

32

intent where members of Crip street gangs assaulted

staff and threatened non-affiliated African-American

inmates to assist them, and staff assaults were, by

their nature, more serious challenges to prison

authority than attacks on other inmates. Jd.

Norwood’s assertion that inmates were locked

down for longer periods in response to staff assaults

than inmate-on-inmate assaults is incorrect. because

the reasons for the length of the exercise suspensions

cannot be so neatly separated. Staff assaults were

followed by inmate-on-inmate assaults by different

groups and then further staff assaults. And White,

Crip and Southern Hispanic inmates were locked

down without exercise on occasions for a month and a

half or more following inmate-on-inmate assaults,

amounts of time comparable to all but one of the four

exercise restrictions that Norwood claims were

imposed in response to staff assaults.

The petition does not point to evidence of bad

faith, but merely expresses its disagreement with the

prison officials’ reasoned choices, disagreement that

the Ninth Circuit found insufficient. Norwood, 591

F.3d at 1068-70. That is not a ground for granting

certiorari.

C. Prison Officials Did Not Have Fair

Warning that Their Efforts to Stop the Violence

Would Violate the Eighth Amendment

Prison officials were entitled to qualified

immunity because the right to outdoor exercise in the

midst of severe, ongoing violence was not clearly

established in cases involving facts not reasonably

distinguishable from the situation they faced.

33

Norwood, 591 F.3d at 1068 (citing Saucter v. Katz,

533 U.S. 194, 202 (2001)); Devereaux v. Abbey, 263

F.3d 1070, 1074 (9th Cir. 2001) (en banc). The

question is whether the officials conduct was

reasonable under the circumstances, not whether

another more reasonable interpretation. of events

could be constructed after the fact. ITunter v. Bryant,

502 U.S. 224, 227-28 (1991).

The Ninth Circuit did not ignore its own

precedent on a prisoner’s right to outdoor exercise,

nor did it narrow those _ rights. Rather, ‘it

distinguished the cases on which petitioner relied in

finding that a reasonable officer could have believed

that restricting exercise on the facts of this case was

consistent with Ninth Circuit precedent, and that

there was no clearly established authority to the

contrary. Norwood, 591 F.3d at 1070.

The only case cited by Norwood that concerned

a lockdown in response to prison violence was Allen,

which is distinguishable because it did not stand for

the general preposition that a prisoner’s right to

outdoor exercise was absolute and indefeasible, or

that it trumps all other considerations. Norwood,

591 F.3d at 1068. Rather the Ninth Circuit held that

Allen survived summary judgment only because

prison officials relied on inconsequential logistical

concerns to justify the denials of access, while prison

officials in Norwood had substantial reasons for the

lockdowns. Id. at. 1068-69.

Cases concerning inmates on_ long-term,

indeterminate disciplinary detention who were not

allowed regular outdoor exercise are distinguishable

from cases in which the exercise restriction 1s

temporary and in response to widespread, ongoing

prison violence. Norwood, 591 F.3d at 1070

(distinguishing Spain (denial of exercise to inmates

in disciplinary detention for over four years) and

Toussaint (denial of exercise to inmates in

administrative segregation tor over a year)). Finally,

the Ninth Circuit correctly noted that several district

courts had found no Eighth Amendment hability on

similar facts and for suspensions of exercise twice as

long as petitioner’s, cases which petitioner does not

address in his argument that the law was clearly

established. Id. at. 1070.

The facts of this case are distinguishable from

those at issue in Hope v. Pelzer, 5386 U.S. 730, 739

(2002), which Norwood argues put prison officials on

notice that the exercise suspensions were unlawful.

Hope did not concern the denial of exercise following

staff and prisoner assaults.

In Hope, this Court found that Alabama was the

only state that chained prisoners to each other in

work squads and handcuffed individual prisoners to

“hitching posts” if they refused to work or otherwise

disrupted work. Hope, 536 U.S. at 733. The prisoner

refused an order to get off a work bus and then

exchanged vulgar remarks and wrestled with an

officer. Jd. at 734. He was returned to prison and

chained to a hitching post for seven hours without a

shirt while the sun burned his skin, and he was piven

water only once or twice and no bathroom break. Jd.

Because the prisoner was only slightly taller than the

hitching post, his arms were above shoulder height,

and he became tired from being handcuffed so high.

Id. When the prisoner tried to move his arms, the

handcuffs cut into his wrists. Jd. An officer taunted

him about his thirst, gave water to his dogs, and then

kicked the water cooler over, spilling water on the

ground while the prisoner watched. /d.

On those facts, this Court held that officials can

be on notice that their conduct violates established

law even in novel factual circumstances and that,

while factually similar circumstances can_ provide

especially strong support for a conclusion that the

law is clearly established, they are not necessary. for

such a finding. Hope, 536 U.S. at 741. Thus, Hope

held that the salient question in a _ qualified-

immunity case is whether the state of the law at the

time gave officials “fair warning” that their conduct

was unconstitutional. /d. Significantly, this Court

cited a number of prior cases in which corporal

punishment had been found unlawful as evidence

that prison officials were on fair notice that their

conduct was unconstitutional. Jd. at 741-44. ‘This

Court emphasized that the physical abuse of inmates

as punishment after the prisoner had terminated his

resistance had been found to violate the Eighth

Amendment. /d. at 743-44.

Thus, Hope stands for the proposition that,

where a violation is obvious under’ Eighth

Amendment case law, officials have fair warning that

their conduct is unconstitutional. Galvin v. Hay, 374

F.3d 739, 746 (9th Cir. 2004). Here, the Ninth

Circuit correctly found that the parameters of the

right to outdoor exercise in the midst of severe

ongoing prison violence was not clearly cstablished,

and that at most prison officials erred on the side of

caution in the length of time they maintained the

36

lockdowns. Norwood, 591 F.3d at 1068-69. But when

if came to matters of life and death, erring on the

side of caution 1s a virtue, and “|cJertainly, no officer

could reasonably have anticipated that such caution

would be found to violate the Eighth Amendment

Id. at. 1069

37

CONCLUSION

The Court should deny the petition for certiorari

because there is no conflict with this Court’s

precedent, or that of other circuits; and the law

applied by the Ninth Circuit is well-established and

does not require clarification; and review of the Ninth

Circuit's factual findings is not a ground for granting

certiorari.

Dated: June 30, 2010

Respectfully submitted

EDMUND G. BROWN JR.

Attorney General of California

MANUEL M. MEDEIROS

State Solicitor Genera!

DAVID S. CHANEY

Chief Assistant Attorney General

ROCHELLE C. EAST

Senior Assistant Attorney General

TRACY S. HENDRICKSON

Supervising Deputy Attorney

General

JAMES E. FLYNN

Deputy Attorney Gencral

Counsel of Record

Counsel for Respondents

SA2008300080

31040858 .doc