Norwood v. Vance ( 2010 )


Menu:
  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GREGORY LYNN NORWOOD,                  
    Plaintiff-Appellee,
    v.
    STEVE J. VANCE; MIKE KNOWLES,              No. 07-17322
    Warden, CSP-Sacramento; THOMAS
    P. GOUGHNOUR; MICHAEL F.                    D.C. No.
    CV-03-02554-
    MARTEL; DAVID I. WILLEY; CHERYL             GEB/GGH
    PLILER, Former Warden at CSP;
    JAMES P. WALKER, Associate
    Warden,
    Defendants-Appellants.
    
    GREGORY LYNN NORWOOD,                  
    Plaintiff-Appellee,
    v.
    STEVE J. VANCE; MIKE KNOWLES,               No. 08-15778
    Warden, CSP-Sacramento; THOMAS                 D.C. No.
    P. GOUGHNOUR; JAMES P. WALKER,             2:03-CV-02554-
    Associate Warden; DAVID I.                   GEB-GGH
    WILLEY; CHERYL PLILER, Former               ORDER AND
    Warden at CSP,                               AMENDED
    Defendants-Appellants,             OPINION
    and
    MICHAEL F. MARTEL,
    Defendant.
    
    431
    432                NORWOOD v. VANCE
    Appeal from the United States District Court
    for the Eastern District of California
    Garland E. Burrell, District Judge, Presiding
    Argued and Submitted
    October 29, 2008—Sacramento, California
    Filed July 9, 2009
    Amended January 7, 2010
    Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and
    Consuelo M. Callahan, Circuit Judges.
    Opinion by Chief Judge Kozinski;
    Dissent by Judge Thomas
    NORWOOD v. VANCE                   435
    COUNSEL
    Carter White, Supervising Attorney, and Erin Haney, Certi-
    fied Law Student, U.C. Davis School of Law, King Hall Civil
    Rights Clinic, Davis, California, for the plaintiff-appellee.
    Christopher J. Becker, Esquire, Jim Sobolewski, James Flynn,
    Deputy Attorneys General, Office of the California Attorney
    General, Sacramento, California, for the defendants-
    appellants.
    ORDER
    The opinion is amended as follows:
    Page 629, column 1,
    line 26                   Add a footnote after  stating: 
    Page 632, column 2,
    lines 36-37               Replace         with
    
    Page 633, column 1,
    line 35                   Replace  with 
    436                  NORWOOD v. VANCE
    Appellee’s Petition for Panel Rehearing and Rehearing en
    banc is otherwise denied. See Fed. R. App. P. 35, 40. Judge
    Thomas would grant the petition.
    No further petitions for rehearing or rehearing en banc may
    be filed.
    OPINION
    KOZINSKI, Chief Judge:
    We consider when prison officials may be held liable for
    depriving inmates of outdoor exercise.
    Facts
    Gregory Norwood was incarcerated at CSP-Sacramento, a
    maximum security prison, during a particularly violent period
    in the prison’s history. Norwood brought this section 1983
    action alleging that prison officials violated the Eighth
    Amendment when they denied him outdoor exercise during
    four separate extended lockdowns over the course of two
    years.
    The prison initiated these lockdowns after serious inmate
    assaults on staff. During the lockdowns, inmates were con-
    fined to their cells and normal programs were suspended
    while officials investigated the violence. Based on what they
    learned, officials gradually eased restrictions on specific
    gangs, ethnic and racial groups, restoring outdoor exercise
    sooner for inmates who they believed would pose less risk of
    further violence. Norwood was not a gang member, but gang
    members often pressured unaffiliated inmates of the same
    race or ethnicity to assist them. Prison officials therefore
    believed that limiting the scope of lockdowns to gang mem-
    bers would be inadequate to ensure safety.
    NORWOOD v. VANCE                       437
    During this two-year period, there were also numerous
    inmate-on-inmate attacks. Officials did not always initiate
    total lockdowns after such attacks. According to one defen-
    dant, the prison’s response to inmate-on-inmate violence
    “[d]epends on the circumstances of the assault. . . . [I]f it’s
    fisticuffs, and it’s a one-on-one situation, no, we wouldn’t
    lock down for that. If it’s a slashing assault, or a stomping, or
    multiple inmates involved in a melee, then yes, we would lock
    down . . . .”
    Officials initiated the first lockdown in early 2002 after
    eleven Hispanic inmates attacked four correctional officers,
    nearly killing one of them. Prison officials didn’t know if the
    attack was planned or isolated. They also didn’t know, and
    were never able to ascertain, who provided the weapons. The
    weeks following the attack brought a series of inmate-on-
    inmate attacks, including a homicide, as well as another
    attempted murder of an officer. Officials eventually decided
    it was safe to begin restoring normal programs, beginning
    with “critical workers.” Norwood was in the second group of
    workers to resume outdoor exercise. His exercise had been
    suspended for about three months.
    In early May, a black inmate stabbed an officer in a dining
    hall. Officials initiated a second lockdown but began restoring
    normal programs by the end of the month. By mid-July, pris-
    oners other than blacks had resumed outdoor exercise. Even
    so, attacks on officers occurred during this lockdown, includ-
    ing a battery and an attempted battery. Norwood, who is
    black, was denied exercise for three months.
    In the waning days of 2002, black inmates attempted to
    murder a correctional officer, and a number of black Crips
    attacked staff members. Officials initiated a third lockdown,
    during the course of which inmates committed four batteries
    or attempted batteries of officers and five batteries or
    attempted murders of inmates. During this lockdown, Nor-
    438                      NORWOOD v. VANCE
    wood’s outdoor exercise was suspended for four and a half
    months.
    In September of 2003, a black Crip attempted to murder an
    officer. Because of the seriousness of the incident and the fact
    that it was the fourth major assault on staff in a 19-month
    period, officers locked down all inmates and declared a state
    of emergency. Officers eventually determined that the
    attacker had acted alone and began restoring outdoor exercise.
    But the violence continued. Certain white inmates, and those
    celled with them, were locked down because of an attempted
    murder of an inmate in November, and certain Crips and their
    cellmates remained on lockdown from earlier violence. Nor-
    wood was denied outdoor exercise for two months.
    A jury found that defendants violated Norwood’s Eighth
    Amendment right to outdoor exercise but concluded that Nor-
    wood suffered no harm and thus awarded no compensatory
    damages. The jury did award $11 in nominal damages and
    $39,000 in punitive damages. The district court awarded
    $23,875.55 in attorney’s fees. Defendants appeal.1
    Analysis
    I
    Defendants claim the district court erred by refusing to give
    the following jury instruction:
    In considering whether defendants were deliberately
    indifferent to the need for outdoor exercise, the jury
    should consider that defendants had a competing
    obligation under the Eighth Amendment to ensure
    the safety of prisoners, including protecting prison-
    1
    Only an Eighth Amendment outdoor exercise claim is before us on this
    appeal. We therefore express no view as to the race-based aspect of the
    lockdowns or any potential Equal Protection claim.
    NORWOOD v. VANCE                        439
    ers from each other. In considering these factors, you
    should give deference to prison officials in the adop-
    tion and execution of policies and practices that in
    their judgment are needed to preserve discipline and
    to maintain internal security in a prison.
    The district court initially agreed to the language but, after
    plaintiff objected, declined to include it on the ground that
    “deference” was “undefined.” Because defendants challenge
    the resulting jury instruction as an incomplete, and therefore
    incorrect, statement of the law our review is de novo. Clem
    v. Lomeli, No. 07-16764, slip op. at 6572 (9th Cir. June 2,
    2009); Dang v. Cross, 
    422 F.3d 800
    , 804-06 (9th Cir. 2005).
    Plaintiff argues that defendants failed to preserve their
    objection below. See Fed. R. Civ. P. 51(d)(2). But the record
    shows that defendants contested the district court’s decision
    not to include the proposed language and made the grounds
    for their position clear, citing relevant authority. An “objec-
    tion need not be formal,” and defendants’ proffered language
    was “sufficiently specific to bring into focus the precise
    nature of the alleged error.” Inv. Serv. Co. v. Allied Equities
    Corp., 
    519 F.2d 508
    , 510 (9th Cir. 1975). Nor did the district
    judge’s vague statement that defendants “may” have an
    opportunity to change his mind counter the overall impression
    that raising the issue again via formal objection would be both
    “unavailing” and a “pointless formality.” Glover v. Bic Corp.,
    
    6 F.3d 1318
    , 1326 (9th Cir. 1993).
    [1] It is well established that judges and juries must defer
    to prison officials’ expert judgments. In Bell v. Wolfish, the
    Supreme Court explained:
    [T]he problems that arise in the day-to-day operation
    of a corrections facility are not susceptible of easy
    solutions. Prison administrators therefore should be
    accorded wide-ranging deference in the adoption and
    execution of policies and practices that in their judg-
    440                    NORWOOD v. VANCE
    ment are needed to preserve internal order and disci-
    pline and maintain institutional security.
    
    441 U.S. 520
    , 547 (1979). Six years later, the Court spelled
    out that deference requires “that neither judge nor jury freely
    substitute their judgment for that of officials who have made
    a considered choice.” Whitley v. Albers, 
    475 U.S. 312
    , 322
    (1985) (emphasis added). The Court confirmed that Bell
    remains good law in Farmer v. Brennan, its seminal opinion
    on challenges to conditions of confinement, which twice cited
    Bell with approval. 
    511 U.S. 825
    , 845, 847 (1994).
    The district court declined to give the proposed instruction
    because the meaning of deference would not be “clear to a lay
    person.” But “deference” is not Urdu or Klingon; it is a com-
    mon English word. See, e.g., Michael Crichton, Airframe 78
    (1996) (“[S]he certainly knew where all the bodies were bur-
    ied. Within the company, she was treated with a deference
    bordering on fear.”). It may be true that deference has varied
    meanings, Dissent at 454 n.4, but so do most English words.
    If the district judge believed the term needed further context
    or definition, he could have provided it.
    [2] Perfect or not, the defendants’ proposed instruction
    brought the issue of deference to the district court’s attention.
    “[T]he fact that the proposed instruction was misleading does
    not alone permit the district judge to summarily refuse to give
    any instruction on the topic.” Merrick v. Paul Revere Life Ins.
    Co., 
    500 F.3d 1007
    , 1017 (9th Cir. 2007). The district court
    omitted the instruction altogether, rather than modifying it to
    correct the perceived deficiency. The remaining instructions
    failed to alert the jury that the deliberate indifference standard
    “incorporates due regard for prison officials’ ‘unenviable task
    of keeping dangerous men in safe custody under humane con-
    ditions.’ ” 
    Farmer, 511 U.S. at 845
    (quoting Spain v. Procu-
    nier, 
    600 F.2d 189
    , 193 (9th Cir. 1979)). The dissent
    apparently believes that, because Farmer “incorporates” Bell
    deference, the use of language drawn from Farmer was ade-
    NORWOOD v. VANCE                      441
    quate to instruct the jury. Dissent at 452. But juries are not
    clairvoyant and will not know to defer unless they are told to
    do so.
    [3] We have long recognized that additional instruction
    regarding deference is required in cases applying Whitley to
    allegedly excessive force by prison officials. See Ninth Cir-
    cuit Manual of Model Jury Instructions § 9.24 (2007 ed.). The
    dissent accuses us of improperly extending the Whitley regime
    to a case involving conditions of confinement. Dissent at 451.
    But defendants’ proposed instruction was not drawn from
    Whitley; it was drawn from Bell—itself a conditions of con-
    finement case. 
    Bell, 441 U.S. at 534
    , 547. Prison officials are
    entitled to deference whether a prisoner challenges excessive
    force or conditions of confinement. See 
    Whitley, 475 U.S. at 322
    ; 
    Farmer, 511 U.S. at 845
    . Indeed, conditions of confine-
    ment and use of force are often flip sides of the same coin: A
    more restrictive confinement may diminish the need for force
    and vice versa.
    [4] As the government recognized at trial, the court’s
    instruction correctly stated Farmer’s deliberate indifference
    standard. But the court’s failure to give additional guidance
    on deference rendered the instruction incomplete and mislead-
    ing. And the error was also prejudicial. If properly instructed,
    the jurors might well have reached a different conclusion.
    Norwood has not met his burden of showing the verdict
    would “more probably than not” have been the same absent
    the error. Clem, slip op. at 6575. We therefore vacate the
    jury’s verdict and damages awards.
    II
    We would normally remand for a new trial, but as defen-
    dants are entitled to qualified immunity that is not necessary
    here. Our dissenting colleague may be right that defendants
    waived the immunity claim by failing to raise it to the district
    court during or immediately after trial. On appeal, however,
    442                   NORWOOD v. VANCE
    Norwood failed to argue waiver; rather, he addressed quali-
    fied immunity on the merits while arguing waiver of the two
    other principal issues in the case. In Tortu v. Las Vegas Met-
    ropolitan Police Department, 
    556 F.3d 1075
    (9th Cir. 2009),
    cited by the dissent, see Dissent at 456, plaintiff explicitly
    argued that defendants had forfeited qualified immunity by
    failing to make the proper motion below. 
    Tortu, 556 F.3d at 1081
    .
    [5] It is “well-established” that a party can “ ‘waive waiver’
    implicitly by failing to assert it.” Tokatly v. Ashcroft, 
    371 F.3d 613
    , 618 (9th Cir. 2004); United States v. Garcia-Lopez,
    
    309 F.3d 1121
    , 1123 (9th Cir. 2002); see also Wilson v.
    Kelkhoff, 
    86 F.3d 1438
    , 1445 (7th Cir. 1996) (plaintiff waived
    defendant’s waiver of absolute immunity defense). Norwood
    waived the defendants’ waiver by addressing the claim on the
    merits without also making a waiver argument. Cf. Chicano
    Educ. & Manpower Servs. v. U.S. Dep’t of Labor, 
    909 F.2d 1320
    , 1327-28 & n.5 (9th Cir. 1990) (“Yes, we are indeed
    holding that the Department has waived its right to argue that
    CEMS waived its right to ask for a waiver . . . .”). The dissent
    would have us raise the issue of waiver sua sponte and sug-
    gests that we have “discretion” not to reach defendants’ quali-
    fied immunity claim. Dissent at 457-58. But “[t]his court will
    not address waiver if not raised by the opposing party.”
    United States v. Doe, 
    53 F.3d 1081
    , 1802-83 (9th Cir. 1995)
    (quoting United States v. Schlesinger, 
    49 F.3d 483
    , 485 (9th
    Cir. 1995)). Even if we had such discretion, we believe the
    more prudent course is to resolve the case on the basis of the
    issues actually briefed and argued by the parties.
    [6] When a party waives waiver, we proceed directly to the
    merits. See, e.g., 
    Tokatly, 371 F.3d at 618-24
    ; 
    Doe, 53 F.3d at 1083-84
    ; 
    Wilson, 86 F.3d at 1445-46
    . We do not, as the dis-
    sent suggests, Dissent at 458-59, engage in plain error review.
    Defendants are entitled to qualified immunity so long as a
    right to outdoor exercise in the midst of severe ongoing prison
    violence was not clearly established at the time defendants
    NORWOOD v. VANCE                       443
    acted. See Saucier v. Katz, 
    533 U.S. 194
    , 201-02 (2001). “The
    relevant, dispositive inquiry . . . is whether it would be clear
    to a reasonable officer that his conduct was unlawful in the
    situation he confronted.” 
    Id. at 202
    (emphasis added).
    [7] Three factors weigh heavily in our analysis: First, as
    Saucier explains, the qualified immunity inquiry is highly
    context-sensitive, turning on whether it would be clear to a
    reasonable officer that denying outdoor exercise was unlawful
    “in the situation he confronted.” 
    Id. The extraordinary
    vio-
    lence gripping the prison threatened staff and inmates alike,
    and there was a serious risk that gangs would press unaffili-
    ated inmates like Norwood into service. See 
    pp.436-38 supra
    .
    While Norwood argues that a reasonable officer would have
    known that denying outdoor exercise in the midst of ongoing
    prison violence violated his rights, he cites just one case Allen
    v. Sakai, 
    48 F.3d 1082
    (9th Cir. 1995)—for the general propo-
    sition that the Ninth Circuit “is one of many [courts] that have
    held that there is a constitutional right to outdoor exercise for
    inmates.”
    But Allen does not hold that a prisoner’s right to outdoor
    exercise is absolute and indefeasible, or that it trumps all
    other considerations. Plaintiffs in Allen survived summary
    judgment because prison officials there relied on “inconse-
    quential logistical concerns” to justify denying outdoor exer-
    cise. 
    Id. at 1088.
    Defendants here had substantial reasons for
    imposing the lockdowns: They were attempting to restore
    order during a series of brutal attacks, some lethal or nearly
    so. They did not place “inconsequential logistical concerns”
    above Norwood’s need for outdoor exercise. And plaintiff
    offered no evidence that the lockdowns were meant to be
    punitive or were otherwise implemented in bad faith.
    [8] Second, prison officials have a duty to keep inmates
    safe, and in particular to protect them from each other. Far-
    
    mer, 511 U.S. at 832-33
    ; LeMaire v. Maass, 
    12 F.3d 1444
    ,
    1462 (9th Cir. 1993). Officials must balance this imperative
    444                     NORWOOD v. VANCE
    against other obligations that our laws impose, such as provid-
    ing outdoor exercise. When violence rises to unusually high
    levels, prison officials can reasonably believe it is lawful to
    temporarily restrict outdoor exercise to help bring the vio-
    lence under control. We’ve explained that “prison officials
    have a right and a duty to take the necessary steps to reestab-
    lish order in a prison when such order is lost. This is for the
    benefit of the prisoners as much as for the benefit of the
    prison officials.” Hoptowit v. Ray, 
    682 F.2d 1237
    , 1259 (9th
    Cir. 1982). Here, at least one prisoner had died; others (pris-
    oners and guards) had been severely wounded. Defendants
    had to act decisively to stop the violence.
    The dissent claims that the “jury reasonably rejected defen-
    dants’ argument that unusual levels of violence justified the
    long-term deprivations in this case” because “defendants con-
    ceded on cross-examination that ‘those types of [violent] inci-
    dents occur even when there is no lockdown,’ with the same
    frequency, and that ‘the violence is pretty steady.’ ” Dissent
    at 463-64 (emphasis omitted). But there’s more to the former
    warden’s testimony:
    While we were on lockdown status, these types of
    things continued to happen. Either as we incremen-
    tally unlocked and released to the small yards for
    exercise, or sent—you know, releasing—lifting the
    privileges to go to meals or whatever, violence con-
    tinued to happen. And if that violence was—
    occurred based on a decision that we made that we
    felt it was safe, and we let the small group of prison-
    ers out and something happened, then we would call
    back our prior decision. [Emphasis added.]
    What we understand the warden to be saying is that the lock-
    downs were effective at curbing violence, and that violence
    resumed as privileges were restored.
    Such decisions are not to be judged with the benefit of
    hindsight, in any event. It matters not whether the measures
    NORWOOD v. VANCE                     445
    taken actually worked but whether prison officials reasonably
    believed they would be effective in stopping the violence. At
    most, prison officials here may be faulted for erring on the
    side of caution by maintaining lockdowns for longer than nec-
    essary. But, when it comes to matters of life and death, erring
    on the side of caution is a virtue. Certainly, no officer could
    reasonably have anticipated that such prudence would be
    found to violate the Eighth Amendment.
    [9] Third, when balancing the obligation to provide for
    inmate and staff safety against the duty to accord inmates the
    rights and privileges to which they are entitled, prison offi-
    cials are afforded “wide-ranging deference.” 
    Bell, 441 U.S. at 547
    . When a “lockdown was in response to a genuine emer-
    gency,” and “restrictions were eased as the prison administra-
    tion determined that the emergency permitted,” we may not
    lightly second-guess officials’ expert judgments about when
    exercise and other programs could safely be restored. “These
    decisions are delicate ones, and those charged with them must
    be given reasonable leeway.” Hayward v. Procunier, 
    629 F.2d 599
    , 603 (9th Cir. 1980).
    [10] It would be particularly odd to hold that liability
    attaches in this case, where hindsight validates defendants’
    decisions. The record makes clear that a great deal of violence
    took place during outdoor exercise. While denying outdoor
    exercise for extended periods carried some risk of harm, offi-
    cials’ judgment that there was a greater risk of harm from
    allowing outdoor exercise was certainly reasonable. Indeed,
    Norwood suffered no injuries from attacks by other inmates
    or from being denied outdoor exercise—a fact the jury recog-
    nized by awarding no compensatory damages. Norwood
    might have fared less well had prison officials been less cau-
    tious. Although exercise is “one of the basic human necessi-
    ties protected by the Eighth Amendment,” 
    LeMaire, 12 F.3d at 1457
    , “a temporary denial of outdoor exercise with no med-
    ical effects is not a substantial deprivation.” May v. Baldwin,
    
    109 F.3d 557
    , 565 (9th Cir. 1997).
    446                   NORWOOD v. VANCE
    [11] We therefore conclude that a reasonable officer could
    have believed that restricting Norwood’s outdoor exercise
    was consistent with the Eighth Amendment. Certainly, no
    authority clearly established the contrary. Allen didn’t. See
    
    p.443 supra
    . And Spain v. Procunier, 
    600 F.2d 189
    (9th Cir.
    1979), concerned inmates in disciplinary segregation who
    were denied outdoor exercise as a normal condition of their
    confinement, 
    id. at 199-200,
    rather than for safety during
    emergencies. Not surprisingly, our district courts have found
    an absence of Eighth Amendment liability on facts similar to
    these. See, e.g., Jones v. Garcia, 
    430 F. Supp. 2d 1095
    ,
    1102-03 (S.D. Cal. 2006) (finding no Eighth Amendment vio-
    lation where prisoner was denied outdoor exercise for ten
    months—double the longest single period that Norwood’s
    exercise was restricted—because of ongoing violence); Hayes
    v. Garcia, 
    461 F. Supp. 2d 1198
    , 1201, 1207-08 (S.D. Cal.
    2006) (same for nine-month denial of outdoor exercise); Hurd
    v. Garcia, 
    454 F. Supp. 2d 1032
    , 1042-45 (S.D. Cal. 2006)
    (same for five-month denial).
    Norwood argues that defendants had no need to conduct
    lengthy lockdown investigations because those investigations
    either found that the initial assaults were isolated incidents or
    else could not determine who else was involved. Norwood
    also argues that defendants could have limited exercise
    restrictions to specific groups of prisoners. But the investiga-
    tions were reasonable precautions, and defendants had no way
    of knowing beforehand what they would yield. That defen-
    dants imposed general lockdowns after some attacks on staff
    but only group-specific restrictions after some attacks on
    inmates does not show malicious intent or deliberate indiffer-
    ence. Attacks on staff are, by their nature, more serious chal-
    lenges to prison authority than attacks on other inmates.
    [12] We decline Norwood’s invitation to micro-manage
    officials whose expertise in prison administration far exceeds
    our own, and we conclude that defendants are entitled to qual-
    NORWOOD v. VANCE                       447
    ified immunity. On remand, the district court shall enter judg-
    ment consistent with this opinion.
    [13] Because plaintiff is no longer the prevailing party, we
    vacate the award of attorney’s fees.
    REVERSED.
    THOMAS, Circuit Judge, dissenting:
    There is no reason on this record to disturb the jury verdict.
    The district court correctly analyzed the law and properly
    instructed the jury consistent with our precedent. The jury
    considered all of the evidence and rejected the government’s
    theory that defendants were not deliberately indifferent
    because security concerns justified the ongoing deprivations.
    Substantial evidence supports the jury verdict.
    I would not reach the question of qualified immunity
    because the government did not preserve the issue for appeal.
    Assuming for argument’s sake that it was proper for us to
    entertain the defense, I would hold that the defendants were
    not entitled to qualified immunity. Clearly established law
    precludes prison officials from depriving inmates of outdoor
    exercise for extended periods absent exigent circumstances.
    The jury’s finding that defendants acted with reckless disre-
    gard to the risk to Norwood’s health and safety leaves no
    room to conclude defendants could reasonably have believed
    their actions lawful.
    For these reasons, I must respectfully dissent.
    I
    We afford trial judges “substantial latitude in tailoring jury
    instructions.” Mockler v. Multnomah County, 
    140 F.3d 808
    ,
    448                     NORWOOD v. VANCE
    812 (9th Cir. 1998) (citation omitted). Here, there is no doubt
    that the district court properly instructed the jury on the essen-
    tial elements of the claim at issue. Indeed, the government
    concedes that the jury was properly instructed, and it did not
    object to the instruction given by the district court. What the
    government sought was an additional, misleading instruction
    that would have engrafted supplemental requirements onto
    those dictated by precedent. The district court found that the
    new instruction was unclear, undefined, and used language
    that would be confusing to a lay jury. A district court does not
    commit error in rejecting a misleading supplementary instruc-
    tion that is at odds with a controlling instruction everyone
    agrees was properly given. “Jury instructions must be formu-
    lated so that they fairly and adequately cover the issues pre-
    sented, correctly state the law, and are not misleading.” 
    Id. (citation omitted).
    This case involved a challenge to prison conditions—
    specifically, the long-term deprivation of outdoor exercise—
    to which the deliberate indifference standard applies. The jury
    was instructed that:
    To establish deliberate indifference plaintiff must
    prove defendant knew that plaintiff faced a substan-
    tial risk of serious harm to his health or safety and
    disregarded that risk by failing to take reasonable
    measures to correct it. Under the deliberate indiffer-
    ence standard, defendant must have been aware of
    facts from which the inference could be drawn that
    a substantial risk of serious harm to plaintiff’s health
    or safety existed due to deprivation of outdoor exer-
    cise, and defendant must also have drawn that infer-
    ence.
    The jury was further instructed that “[a] defendant who
    actually knew of a substantial risk of a serious harm to plain-
    tiff’s health or safety may be found free from liability if he
    responded reasonably to the risk, even if the harm was not
    NORWOOD v. VANCE                       449
    ultimately averted.” These instructions set forth—almost
    verbatim—the deliberate indifference culpability standard for
    cases involving challenges to prison conditions announced by
    the Supreme Court in Farmer v. Brennan, 
    511 U.S. 825
    (1994). See 
    id. at 837
    (“We hold . . . that a prison official can-
    not be found liable under the Eighth Amendment for denying
    an inmate humane conditions of confinement unless the offi-
    cial knows of and disregards an excessive risk to inmate
    health or safety; the official must both be aware of facts from
    which the inference could be drawn that a substantial risk of
    serious harm exists, and he must also draw the inference.”);
    
    id. at 844
    (“[P]rison officials who actually knew of a substan-
    tial risk to inmate health or safety may be found free from lia-
    bility if they responded reasonably to the risk, even if the
    harm ultimately was not averted.”). In combination with the
    instruction that exercise did not have to be provided if “in-
    clement weather, unusual circumstances, or disciplinary needs
    makes that impossible,” the instructions conveyed to the jury
    that it could not find defendants liable if the officials knew of
    the risk posed by continuing the lockdowns without providing
    for exercise, but responded reasonably to that risk under the
    circumstances.
    The government agreed that the jury instruction that “exer-
    cise must be provided unless inclement weather, unusual cir-
    cumstances, or disciplinary needs makes that impossible” was
    “an adequate and proper statement of the law.” See Allen v.
    Sakai, 
    40 F.3d 1001
    , 1004 (1994) (stating that prison officials
    were required to “provide regular outdoor exercise to [the
    plaintiff] unless ‘inclement weather, unusual circumstances,
    or disciplinary needs made that impossible’ ”) (quoting Spain
    v. Procunier, 
    600 F.2d 189
    , 199 (1979) (Kennedy, J.))).
    What the government sought was an additional instruction
    that amounted to a command to direct a verdict in favor of the
    government:
    In considering whether defendants were deliberately
    indifferent to the need for outdoor exercise, the jury
    450                       NORWOOD v. VANCE
    should consider that defendants had a competing
    obligation under the Eighth Amendment to ensure
    the safety of prisoners, including protecting prison-
    ers from each other. In considering these factors, you
    should give deference to prison officials in the adop-
    tion and execution of policies and practices that in
    their judgment are needed to preserve discipline and
    maintain internal stability in a prison.
    The district court rejected the proffered jury instruction
    because he found the deference language unclear and unde-
    fined, noting that “one of my jobs as a judge is to provide the
    jury with an understandable instruction, something that’s clear
    to a lay person.”
    One cannot fault the district court’s analysis.1 The proposed
    instruction deviates from the Supreme Court’s formulation of
    the standard of deliberate indifference in Farmer, and the dis-
    trict court rightly concluded it might be confusing to a lay
    jury.
    The language sought by the government not only departed
    from the proper and time-tested definition of deliberate indif-
    ference, but also would have imported language that the
    Supreme Court has held is not proper for such cases. The def-
    erence language requested by defendants appears verbatim in
    the model Ninth Circuit jury instruction for prisoner excessive
    1
    Indeed, by providing instructions defining deliberate indifference in
    Farmer’s terms, rather than using the current version of the Ninth Circuit
    Model Jury Instruction, the trial judge actually avoided error on another
    front. See Clem v. Lomeli, No. 07-16764, slip op. at 6574-75 (9th Cir. June
    2, 2009) (holding that district court erred in providing current Ninth Cir-
    cuit Model Jury Instruction 9.25 because the instruction deviates from
    Farmer, which does not require “direct causation by affirmative action”
    of prison officials); 
    id. at 6577
    (emphasizing that current Ninth Circuit
    Model Jury Instruction 9.25 does not adequately state the law because it
    never “mentions or defines the term ‘deliberate indifference’ ”) (Hug, J.,
    concurring).
    NORWOOD v. VANCE                             451
    force claims, in which the heightened subjective culpability
    standard set forth in Whitley v. Albers, 
    475 U.S. 312
    , 321-22
    (1986), applies.2 See Ninth Circuit Manual of Model Jury
    Instructions § 9.24 (2007 ed.).
    However, the Whitley excessive force standard, under
    which prison officials may be held liable only if they act “ma-
    liciously or sadistically for the very purpose of causing harm,”
    
    Whitley, 475 U.S. at 321-22
    (citation omitted), does not apply
    to claims challenging prison conditions. Indeed, our precedent
    forecloses such an application, and defendants do not argue
    otherwise. In Johnson v. Lewis, 
    217 F.3d 726
    (2000), we held
    that where prisoners were held handcuffed and prone in a
    prison yard for four days after a riot, the heightened culpabil-
    ity standard announced in Whitley applied to the prison offi-
    cials’ actions up to the point when the inmates were secured,
    but that once the prison officials “were no longer required to
    make split-second, life-and-death decisions,” the deliberate
    indifference standard applied. 
    Id. at 734;
    see also Jordan v.
    Gardner, 
    986 F.2d 1521
    , 1528 (9th Cir. 1993) (en banc)
    (Whitley’s “maliciously or sadistically” standard applies “in
    the context of a prison-wide disturbance or individual con-
    frontation between an officer and prisoner,” when “correc-
    tions officers must act immediately and emphatically to defuse
    a potentially explosive situation”) (emphasis added). As we
    explained in Jordan, the excessive force test involves the
    examination of “the exercise of judgment of a particular offi-
    cer on a specific occasion,” while the deliberate indifference
    test generally involves “polic[ies] . . . developed over time,
    with ample opportunity for reflection.” 
    Jordan, 986 F.2d at 1528
    .
    2
    It is questionable whether this deference language is even properly
    included in jury instructions for excessive force cases. See Catherine T.
    Struve, Constitutional Decision Rules for Juries, 37 COLUM. HUM. RTS. L.
    REV. 659, 679 (2006) (arguing that including deference language in exces-
    sive force jury instruction double counts the deference due prison officials
    because the Whitley standard already incorporates deference).
    452                        NORWOOD v. VANCE
    The language that the government proposed in this case
    would have effectively imposed the more deferential standard
    we held inapplicable in Johnson and Jordan. The standards
    for excessive force claims are not coextensive with the stan-
    dards applicable to prison conditions claims. In my view, not
    only was the trial judge justified in rejecting the instruction,
    the judge would have committed error if he had given it.
    Defendants contend that the deliberate indifference stan-
    dard “did not capture the importance of deferring to the expert
    judgment of prison officials concerning when outdoor exer-
    cise could safely be resumed.” However, contrary to defen-
    dants’ assertion, the deliberate indifference standard
    announced in Farmer and adopted by the trial judge in his
    instructions is a “standard that incorporates due regard for
    prison officials’ ‘unenviable task of keeping dangerous men
    in safe custody under humane conditions.’ ” 
    Farmer, 511 U.S. at 845
    (emphasis added) (citing 
    Spain, 600 F.2d at 193
    ). The
    Supreme Court in Farmer also cited its decision in Bell v.
    Wolfish, 
    441 U.S. 520
    (1979), in support of the iteration of the
    deliberate indifference standard it adopted, indicating that the
    principle of deference to the judgment of prison officials
    undergirds the standard.3 See 
    id. It is
    a mistake to confuse the
    deference language surrounding the Supreme Court’s
    announcement of the applicable standards in Whitley and
    Farmer with the standards themselves. See Catherine T.
    Struve, Constitutional Decision Rules for Juries, 37 COLUM.
    HUM. RTS. L. REV. 659, 679 (2006) (noting that deference lan-
    3
    The majority argues that the requested instruction was required
    because its language was drawn from Bell, a case that involved a chal-
    lenge to conditions of confinement, albeit in the pretrial detention context.
    However, Bell preceded the line of Supreme Court cases setting forth the
    current standards applicable to prison conditions cases—including the
    deliberate indifference standard. The deliberate indifference standard
    incorporates the level of deference the Court has deemed warranted in the
    context of challenges to prison conditions under the Eighth Amendment,
    as opposed to challenges to prison policies and practices under generally
    applicable constitutional provisions.
    NORWOOD v. VANCE                        453
    guage in Whitley “explain[s] the Court’s choice of decision
    rule, but need not be seen as a part of that decision rule”).
    An instruction incorporating further deference would run
    afoul of the Supreme Court’s rejection of such an approach in
    Johnson v. California, 
    543 U.S. 499
    (2005). In Johnson, the
    Court expressly disavowed the applicability in the Eighth
    Amendment context of the standard articulated in Turner v.
    Safley, 
    482 U.S. 78
    , 89 (1987), namely that a “regulation is
    valid if it is reasonably related to legitimate penological inter-
    ests.” The Court reasoned that “the integrity of the criminal
    justice system depends on full compliance with the Eighth
    Amendment.” 
    Johnson, 543 U.S. at 511
    . In support of this
    assertion, the Court quoted with approval the following pas-
    sage from Justice Kennedy’s decision for this Court in Spain:
    [T]he full protections of the eighth amendment most
    certainly remain in force [in prison]. The whole
    point of the amendment is to protect persons con-
    victed of crimes. . . . Mechanical deference to the
    findings of state prison officials in the context of the
    eighth amendment would reduce that provision to a
    nullity in precisely the context where it is most nec-
    essary.
    
    Id. (quoting Spain,
    600 F.2d at 194). Inclusion of the
    requested deference instruction, in light of the fact that the
    appropriate level of deference was already incorporated in the
    culpability standard, would have invited exactly the sort of
    “mechanical deference” the Supreme Court has rejected.
    Further, Farmer suggests that it is judges at whom the def-
    erence language in the Bell line of cases is directed, and
    judges who must be mindful of the respective competencies
    of the judiciary and executive branches. See 
    Farmer, 511 U.S. at 846-47
    (noting that district courts should approach grant of
    injunctive relief in prison conditions cases with caution lest
    they become “enmeshed in the minutiae of prison opera-
    454                        NORWOOD v. VANCE
    tions”) (quoting 
    Bell, 441 U.S. at 562
    ). Farmer does not sug-
    gest that this complex balancing of competing institutional
    interests should be placed directly in the hands of jurors. See
    
    Struve, supra, at 681-82
    (arguing that not all judicial decision
    rules are appropriate for use as decision rules for juries).
    While juries, as part of the judicial branch, no doubt have an
    indirect role to play in this balancing process, they properly
    play this role by applying the standards the Supreme Court
    has determined strike the appropriate balance. The district
    court in this case accurately instructed the jury on those stan-
    dards. In doing so, the district court in this case wisely recog-
    nized that not every general legal principle “lifted from the
    case law” is properly provided as instruction to the jury. The
    court correctly concluded that to give the government’s dou-
    ble deference instruction would have been confusing to a lay
    jury.4
    4
    The majority criticizes the trial judge on this point, contending that def-
    erence is a commonly understood lay term, and could not have been con-
    fusing. However, its citation of language in the novel Airframe illustrates
    the problem. Instructing a jury to give prison officials deference, if defer-
    ence commonly “borders on fear,” is not a correct application of the law
    and would have amounted to directing a verdict in favor of the govern-
    ment. Even in our sterile legal environment, deference comes in varietals,
    such as Chevron deference, Skidmore deference, and sardonic deference.
    See, e.g., Massiah v. United States, 
    377 U.S. 201
    , 208 (1964) (White, J.,
    dissenting) (“With all due deference, I am not at all convinced that the
    additional barriers to the pursuit of truth which the Court today erects rest
    on anything like the solid foundations which decisions of this gravity
    should require.”). And, of course, there is more than one breed of institu-
    tional deference relevant to this case. See, e.g., McCord v. Maguire, 
    873 F.2d 1271
    , 1274 (9th Cir. 1989) (correctly noting that we must be “mind-
    ful of the deference due the verdict of a jury”) (citation omitted). Here, the
    trial judge quite rightly concluded that to give an instruction that mixed
    legal standards and, in effect, told the jury to layer deference upon defer-
    ence, was not appropriate—particularly when the judge had already given
    an entirely proper instruction on the topic. (I must, however, acknowledge
    that the majority is quite correct in intuiting that, unsurprisingly, there is
    no Klingon word for “deference.” See generally Marc Okrand, THE
    KLINGON DICTIONARY (Star Trek 1992)).
    NORWOOD v. VANCE                                455
    Because the relevant level of deference is already incorpo-
    rated into the content of the culpability standards governing
    the conduct of prison officials, the district court correctly
    rejected the instruction. The requested instruction misstated
    applicable law and, as the district court properly concluded,
    would have been confusing to the jury. Moreover, everyone
    agrees that the primary instruction given by the judge on this
    issue was entirely proper. The trial judge properly rejected the
    defendants’ proffered “deference” instruction, in favor of an
    instruction that everyone agrees correctly stated the applicable
    law.5
    II
    The government did not preserve its qualified immunity
    defense for appeal. The rules for preserving a qualified immu-
    nity defense are straightforward. Qualified immunity is an
    affirmative defense that must be pleaded in the answer. Sie-
    gert v. Gilley, 
    500 U.S. 226
    , 231 (1991). However, “defen-
    dants may raise an affirmative defense for the first time in a
    motion for summary judgment . . . if the delay does not preju-
    dice the plaintiff.” Magana v. Commonwealth of N. Mariana
    Islands, 
    107 F.3d 1436
    , 1446 (9th Cir. 1997).
    5
    Although I have elected to discuss this issue on the merits, there is con-
    siderable force to the plaintiff’s argument that the government failed to
    preserve the question for appeal. Under Fed. R. Civ. P. 51(d)(1)(B), a
    party may assign as error “a failure to give an instruction, if that party
    properly requested it and—unless the court rejected the request in a defini-
    tive ruling on the record—also properly objected.” (emphasis added). As
    I have noted, at the conference at which the instructions were discussed,
    the trial judge indicated that he found the government’s proposed instruc-
    tion confusing and indicated that he was not inclined to give it. However,
    he also stated, “at this juncture, you may have an opportunity to show me
    that I’m wrong later, I think the plaintiff’s position is correct.” At the criti-
    cal moment in the trial, when the judge asked for objections to the instruc-
    tions as given, the government stated that it “will not object to any of the
    instructions” except to “renew the defendants’ request for failure to miti-
    gate.” The government did not, at the critical juncture when formal objec-
    tions were to be made, request that the court give the additional deference
    instruction.
    456                     NORWOOD v. VANCE
    If the district court denies qualified immunity on a sum-
    mary judgment motion, the order is immediately appealable
    as a collateral order if the judgment is made as a matter of law
    and “the issue appealed concerns whether the facts demon-
    strated a violation of clearly established law.” Rodis v. City
    and County of San Francisco, 
    558 F.3d 964
    , 968 (9th Cir.
    2009) (citation omitted). If the district court denies summary
    judgment on qualified immunity because there remain genu-
    ine issues of material fact, then there is no right of interlocu-
    tory appeal, because such an order is not a “final, immediately
    appealable order.” Maropulos v. County of Los Angeles, 
    560 F.3d 974
    , 975 (9th Cir. 2009) (per curiam); see also KRL v.
    Estate of Moore, 
    512 F.3d 1184
    , 1188-89 (9th Cir. 2008)
    (“Our jurisdiction is limited to questions of law, and does not
    extend to qualified immunity claims involving disputed issues
    of material fact.”).
    If the district court denies qualified immunity because there
    are genuine issues of material fact, then the case proceeds to
    trial. “When a qualified immunity claim cannot be resolved
    before trial due to a factual conflict, it is a litigant’s responsi-
    bility to preserve the legal issue for determination after the
    jury resolves the factual conflict.” Tortu v. Las Vegas Metro.
    Police Dep’t., 
    556 F.3d 1075
    , 1083 (9th Cir. 2009). To pre-
    serve the issue of qualified immunity, the defendants must
    make a motion for judgment as a matter of law under Fed. R.
    Civ. P. 50(a). 
    Id. The Rule
    50(a) motion must be filed “at any
    time before the case is submitted to the jury.” 
    Id. at 1081.
    A
    party may also renew the motion for judgment as a matter of
    law based on qualified immunity after trial under Fed. R. Civ.
    P. 50(b). However, a “failure to file a Rule 50(a) motion pre-
    cludes consideration of a Rule 50(b) motion for judgment as
    a matter of law.” 
    Id. at 1083.
    Filing a motion for summary
    judgment or raising the issue in pre-trial submissions is not
    sufficient to avoid a waiver. 
    Id. at 1082.
    Here, defendants raised qualified immunity as an affirma-
    tive defense and moved for summary judgment. The district
    NORWOOD v. VANCE                            457
    court denied summary judgment because there were genuine
    issues of material fact. In their pretrial statement, defendants
    acknowledged that their motion for qualified immunity had
    been denied based on the existence of material factual dis-
    putes and stated that their “entitlement to qualified immunity
    at trial will depend on what evidence is produced to the court
    for determination of this issue.”
    The case proceeded to trial. Defendants did not request that
    the judge give any instructions to the jury pertinent to the
    immunity defense. Defendants did not file a Rule 50(a)
    motion for judgment as a matter of law before the case was
    submitted to the jury. Nor did defendants file a renewed
    motion for judgment as a matter of law pursuant to Rule 50(b)
    after the verdict was rendered. In fact, after a jury was seated,
    the issue of qualified immunity was never mentioned again in
    the district court. At oral argument, defendants conceded that
    they provided the district court no opportunity to rule on the
    question whether, on the facts established at trial, they were
    entitled to qualified immunity. Defendants offered no argu-
    ment or explanation as to why the issue should not be deemed
    forfeited. Plainly, defendants did not preserve their post-trial
    assertion of qualified immunity for appeal. Under Tortu, the
    government has forfeited its qualified immunity defense, and
    we should not consider it for the first time on appeal.
    The majority quite rightly notes that the plaintiff did not
    raise the issue of waiver in its appellate briefing, which was
    a serious omission. That omission places the question of
    whether to entertain the government’s belated qualified
    immunity argument within our sound discretion. I would not
    choose to exercise such discretion.6 By entertaining an appeal
    6
    We have never held that we must reach the merits of an immunity
    defense abandoned by the government below when the plaintiff fails to
    argue waiver in the briefs. While the majority cites several of our cases
    for the proposition that the Court does not address waiver if not raised by
    the opposing party, none of these cases involved a party’s failure to raise
    458                       NORWOOD v. VANCE
    based on a defense abandoned at trial, we impose on trial
    judges the untenable duty of sua sponte re-examining a jury
    verdict in light of abandoned defenses. The Rules set forth the
    procedure for raising legal challenges to jury verdicts: making
    a motion for judgment as a matter of law. The requirement is
    critical not only to the structure of the adversary system, but
    to our appellate system in which the trial court considers legal
    arguments in the first instance. There are, of course, excep-
    tions to this general rule and, from time to time, we have
    indulged new legal arguments for the first time on appeal.
    However, I would not make an exception in this case with the
    effect of imposing a new duty on the trial court sua sponte to
    consider abandoned defenses after the jury has issued its ver-
    dict.
    III
    Assuming that the question of qualified immunity is prop-
    erly before us, I would hold under the circumstances pre-
    sented here that a reasonable officer could not have believed
    the exercise deprivations in this case were lawful. Because the
    government did not preserve the issue for appeal, we review
    properly a defense to liability in the trial court. See Tokatly v. Ashcroft,
    
    371 F.3d 613
    , 618 (9th Cir. 2004) (government waived argument that peti-
    tioner had waived argument before the immigration judge); United States
    v. Garcia-Lopez, 
    309 F.3d 1121
    , 1123 (9th Cir. 2002) (government
    expressly waived argument that defendant had waived his right to appeal
    as part of plea agreement); United States v. Doe, 
    53 F.3d 1081
    , 1082-83
    (9th Cir. 1995) (where government urged court at oral argument to decide
    issue on merits, argument that defendant had waived challenge to sentence
    by not raising it on direct appeal was waived); United States v. Lewis, 
    787 F.2d 1318
    , 1323 n.6 (9th Cir. 1986) (court declined to address govern-
    ment’s argument, raised for the first time in petition for rehearing, that
    defendant had waived instructional error argument in trial court). Because
    deciding in the first instance the applicability of an abandoned defense to
    liability after a general jury verdict implicates concerns not present in
    these cases, I would not extend the “waiver of waiver” principle to this
    new context.
    NORWOOD v. VANCE                      459
    the claim under the familiar plain error standard. To prevail
    on plain error review, the government must show (1) that the
    proceedings below involved error, (2) that the error is plain,
    and (3) that the error affected the substantial rights of the
    aggrieved party. United States v. Olano, 
    507 U.S. 725
    , 732-35
    (1993). In addition, the government must also show that the
    alleged error—here, the trial judge’s failure, after the evi-
    dence was presented, sua sponte to enter judgment as a matter
    of law for defendants based on qualified immunity—
    “ ‘seriously affect[s] the fairness, integrity or public reputa-
    tion of judicial proceedings’ before we will exercise our dis-
    cretion pursuant to Rule 52(b) to correct the plain error.”
    United States v. Alferahin, 
    433 F.3d 1148
    , 1154 (9th Cir.
    2006) (en banc) (internal quotation marks omitted).
    To prevail on his Eighth Amendment prison conditions
    claim, Norwood had to establish that he was subjected to an
    objectively serious deprivation and thatprison officials were
    deliberately indifferent to his health or safety. 
    Farmer, 511 U.S. at 834
    ; Wilson v. Seiter, 
    501 U.S. 294
    , 303 (1991). As
    the trial judge correctly instructed the jury, and defendants
    conceded in their pretrial statement, the complete denial of
    outdoor exercise for periods of up to four and one-half months
    satisfies the objective prong of the Farmer test. Indeed, it was
    clearly established at the time of the lockdowns involved in
    this case that the complete deprivation of outdoor exercise for
    periods of two to four and one-half months constituted an
    objectively serious deprivation for purposes of the Eighth
    Amendment.
    Thirty years ago, we recognized that “some form of regular
    outdoor exercise is extremely important to the psychological
    and physical well being of the inmates.” Spain v. Procunier,
    
    600 F.2d 189
    , 199 (9th Cir. 1979). In Spain, we held that
    inmates classified as dangerous due to violent acts in prison
    and confined to a disciplinary unit were entitled to regular
    outdoor exercise. Subsequent cases in our circuit clearly
    establish that the denial of outside exercise for extended peri-
    460                   NORWOOD v. VANCE
    ods “is a sufficiently serious deprivation and thus meets the
    requisite harm necessary to satisfy Wilson’s objective test.”
    LeMaire v. Maass, 
    12 F.3d 1444
    , 1457 (9th Cir. 1993). In
    LeMaire we noted that “this circuit has determined that the
    long-term denial of outside exercise is unconstitutional” but
    found no violation where a prisoner had both “abused [his
    outdoor exercise privileges] and represent[ed] a grave security
    risk when outside his cell.” 
    Id. at 1458.
    Shortly after LeMaire,
    in Allen v. Sakai, 
    40 F.3d 1001
    (9th Cir. 1994), we held that
    prison officials were not entitled to summary judgment on
    grounds of qualified immunity where the plaintiff prisoner
    was provided only 45 minutes of exercise per week during a
    six-week period. We stated that in light of our prior cases, “it
    should have been apparent to defendants that they were
    required to provide regular outdoor exercise to [the plaintiff]
    unless ‘inclement weather, unusual circumstances, or disci-
    plinary needs made that impossible.’ ” 
    Id. at 1004
    (citing
    
    Spain, 600 F.2d at 199
    ). And, while we noted in May v. Bald-
    win, 
    109 F.3d 557
    (9th Cir. 1997), that “a temporary denial
    of exercise with no medical effects is not a substantial depri-
    vation,” 
    id. at 565,
    May involved the denial of exercise for
    only 21 days as opposed to the four deprivations of two to
    four-and-one-half months in this case, totaling more than a
    year out of a period of less than two years.
    We have held that in cases of genuine emergency, the tem-
    porary deprivation of outdoor exercise may not violate the
    Eighth Amendment. In Hayward v. Procunier, 
    629 F.2d 599
    (9th Cir. 1980), we upheld a district court’s grant of summary
    judgment to prison officials but specifically noted that the
    lockdown was “temporary and plaintiffs . . . were allowed
    approximately the minimum exercise mandated in Spain
    within a month after the imposition of the lockdown.” 
    Id. at 603.
    We premised our holding on the fact that the district
    court had “carefully reviewed the restrictions of the lockdown
    in light of the emergency at the prison and determined that
    they did not cross the eighth amendment line.” 
    Id. Similarly, in
    Hoptowit v. Ray, 
    682 F.2d 1237
    (9th Cir. 1982), after not-
    NORWOOD v. VANCE                      461
    ing that “when a genuine emergency exists, prison officials
    may be more restrictive than they otherwise may be, and cer-
    tain services may be suspended temporarily,” 
    id. at 1259
    (emphasis added), we remanded to the district court to con-
    sider “the length of time each restriction was in effect, and
    whether the restriction and its duration bore a relationship to
    legitimate attempts to ease the emergency.” 
    Id. In this
    case, the magistrate judge denied summary judg-
    ment for defendants on the grounds that there were genuine
    issues of fact regarding whether an emergency necessitated
    the months-long complete deprivations of outdoor exercise in
    this case. The magistrate judge also found a genuine issue of
    fact existed as to whether during these periods other arrange-
    ments for outdoor exercise were feasible—for example, in
    small groups on the smaller concrete yards. Finally, the mag-
    istrate judge found disputed facts regarding defendants’ repre-
    sentation that an extended lockdown depriving all inmates of
    physical exercise was called for where violence was precipi-
    tated by identifiable groups. In short, the magistrate judge
    found that these factual issues—material to both the deliberate
    indifference and qualified immunity inquiries—were dis-
    puted. The precise circumstances surrounding the continua-
    tion of the four lockdowns without any arrangements for
    outdoor exercise were deemed issues of fact for trial.
    The case proceeded to trial before a jury, and the jury heard
    testimony from defendants describing the circumstances sur-
    rounding the decisions to continue the total lockdowns, the
    feasibility of providing outdoor exercise in smaller groups on
    the mini-yards, and the officers’ opinions as to the harmful-
    ness of exercise deprivation. After hearing all the evidence,
    the jury found that the defendants had been deliberately indif-
    ferent in failing to provide Norwood access to outdoor exer-
    cise during each of the four lockdown periods. Furthermore,
    the jury determined that Norwood was entitled to punitive
    damages. To do so, the jury had to find that the defendants
    were not merely deliberately indifferent to the risk to Nor-
    462                       NORWOOD v. VANCE
    wood’s health posed by the deprivation of outdoor exercise,
    but that defendants’ conduct was “malicious, or in reckless
    disregard of plaintiff’s rights.”
    In determining whether the facts established entitle defen-
    dants to qualified immunity, “the party that prevailed at trial
    is entitled to have the evidence construed in a light most
    favorable to it, and the question is whether the evidence was
    so one-sided that one party would have to prevail as a matter
    of law.” Thompson v. Mahre, 
    110 F.3d 716
    , 721 (9th Cir.
    1997) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 
    880 F.2d 176
    , 181 (9th Cir. 1989)); see also Jennings v. Jones,
    
    499 F.3d 2
    , 7 (1st Cir. 2007) (holding that where defendants
    press qualified immunity after a general jury verdict, the court
    is required to view facts relevant to qualified immunity deter-
    mination “in the light most favorable to the verdict”). Here,
    the jury found defendants acted not merely with deliberate
    indifference to Norwood’s right to outdoor exercise, but with
    reckless disregard for it. The evidence viewed in light of that
    finding does not support a defense of qualified immunity,
    which requires that defendants reasonably believed their con-
    duct to be lawful.
    The government relies on a number of factual claims that
    were disputed at trial, and which the verdict indicates the jury
    rejected. For example, the government asserts that after the
    lockdowns, the officials gradually eased restrictions “based on
    what they learned.” In fact, the jury heard testimony from
    prison officials that they “never even received anonymous
    information that a group, or any specific . . . inmate was
    involved in these plots to assault staff other than the perpetra-
    tors” who were identified on the day of the first two attacks.
    The jury also heard evidence that contradicted prison offi-
    cials’ statements that they did not know if other inmates,
    including inmates of other races, were responsible for the first
    attack.7 Finally, with regard to the attack precipitating the
    7
    With regard to the first attack on staff by Hispanic inmates, Norwood
    tendered evidence that staff “believed it was likely that the Southern His-
    panics had put a hit out on staff” and that, generally speaking, Southern
    Hispanic and black inmates were unlikely to form alliances.
    NORWOOD v. VANCE                     463
    fourth lockdown, Norwood tendered evidence that prison offi-
    cials knew shortly after—and perhaps before—the attack that
    the lone perpetrator, a Crip gang member, had specifically tar-
    geted the staff member who was attacked and was already on
    lockdown status at the time of the attack because prison staff
    had information that Crip inmates were going to assault some-
    one in the facility.
    Similarly, the government notes that Norwood, who was
    not affiliated with any prison gangs, was locked down after
    the attacks instigated by known gang members because “gang
    members often pressured unaffiliated inmates of the same eth-
    nicity to assist them.” However, Norwood tendered evidence
    —in the form of numerous memoranda from prison officials
    to staff and inmates—that the usual course of action after a
    violent incident was to lock down those inmates closely iden-
    tified with the group to which the attacker belonged, for
    example, Crip inmates in the case of an incident involving
    Crips. Furthermore, Defendant Pliler conceded that pressuring
    and violence among races and gangs occur during normal pro-
    gramming and that “[t]hat’s the nature of the prisoner at the
    prison.”
    The majority claims that the fact that defendants imposed
    general lockdowns after attacks on staff but only group-
    specific restrictions after attacks on inmates “does not show
    malicious intent or deliberate indifference.” The majority also
    states that “plaintiff offered no evidence that the lockdowns
    were meant to be punitive or were otherwise implemented in
    bad faith.” However, the jury thought otherwise, rejecting the
    defendants’ testimony that the exercise deprivations were
    motivated primarily by the officials’ concerns for safety and
    security.
    Finally, the majority suggests that defendants reasonably
    decided to continue the lockdowns given the occurrence of
    violent incidents during and after lockdown periods. How-
    ever, defendants conceded on cross-examination that “those
    464                   NORWOOD v. VANCE
    types of incidents occur even when there is no lockdown”
    with the same frequency, and that “the violence is pretty
    steady.” Thus, the jury reasonably rejected defendants’ argu-
    ment that they believed the unusual levels of violence justi-
    fied the long-term deprivations in this case. Indeed,
    defendants’ argument that the circumstances here were “un-
    usual” and excused the exercise deprivation is belied by the
    length of the lockdowns, which persisted for periods totaling
    over one year out of a twenty-two month period.
    In sum, the evidence as to the necessity of the long-term
    exercise deprivations at issue in this case, viewed in light of
    the jury verdict for Norwood, does not provide a sufficient
    basis for determining, as a matter of law, that defendants were
    entitled to qualified immunity. The alleged error of the trial
    judge in failing sua sponte to grant qualified immunity cer-
    tainly does not rise to the level of plain error. The district
    court did not commit error—much less a plain error—and it
    would be hard to imagine a trial court decision less likely to
    “seriously affect the fairness, integrity or public reputation of
    judicial proceedings” than a decision not to give a jury
    instruction that the trial judge determined would be confusing
    to the jury. Thus, if I were to reach the merits of the qualified
    immunity defense, I would affirm the judgment of the district
    court.
    IV
    The district court correctly applied the law and instructed
    the jury according to controlling precedent. The jury, after
    hearing a full evidentiary presentation, rejected the defen-
    dants’ justification. The government failed to preserve the
    defense of qualified immunity for appeal. Indeed, the govern-
    ment did not even mention the affirmative defense after the
    jury was seated, much less make the appropriate motion to
    present the question to the district court for its consideration.
    The district court did not commit error, much less plain error,
    in not sua sponte granting judgment as a matter of law after
    NORWOOD v. VANCE                  465
    trial based on an abandoned affirmative defense. There is no
    justification for overturning the jury’s verdict.
    I respectfully dissent.
    

Document Info

Docket Number: 07-17322

Filed Date: 1/7/2010

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (37)

dennis-n-johnson-leonard-todek-individually-and-on-behalf-of-all-others , 217 F.3d 726 ( 2000 )

Hurd v. Garcia , 454 F. Supp. 2d 1032 ( 2006 )

teofanie-m-magana-v-commonwealth-of-the-northern-mariana-islands-isamu-j , 107 F.3d 1436 ( 1997 )

frederick-hoptowit-rick-rinier-steven-hopkins-david-rivera-robert , 682 F.2d 1237 ( 1982 )

97-cal-daily-op-serv-2006-97-daily-journal-dar-3697-david-l-may-v , 109 F.3d 557 ( 1997 )

Merrick v. Paul Revere Life Insurance , 500 F.3d 1007 ( 2007 )

Hayes v. Garcia , 461 F. Supp. 2d 1198 ( 2006 )

Jones v. Garcia , 430 F. Supp. 2d 1095 ( 2006 )

chicano-education-and-manpower-services-v-united-states-department-of , 909 F.2d 1320 ( 1990 )

patsy-s-glover-personal-representative-of-the-estate-of-roy-guy-weaver , 6 F.3d 1318 ( 1993 )

Massiah v. United States , 84 S. Ct. 1199 ( 1964 )

Bell v. Wolfish , 99 S. Ct. 1861 ( 1979 )

Wilson v. Seiter , 111 S. Ct. 2321 ( 1991 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

United States v. Gregory Lewis , 787 F.2d 1318 ( 1986 )

Naji Antoine Tokatly v. John Ashcroft, Attorney General , 371 F.3d 613 ( 2004 )

Dorothy R. McCord v. John Patrick Maguire , 873 F.2d 1271 ( 1989 )

Air-Sea Forwarders, Inc. v. Air Asia Company, Ltd., and E-... , 880 F.2d 176 ( 1989 )

Rodis v. City & County of San Francisco , 558 F.3d 964 ( 2009 )

john-allen-terry-smith-v-ted-sakai-harold-falk-john-cabral-clayton-frank , 40 F.3d 1001 ( 1994 )

View All Authorities »