United States District Court, N.D. California
March 17, 2004.
STEPHEN NELSON, Plaintiff
CA. DEPT OF CORRECTIONS, Defendant
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Judgment is entered in defendants' favor and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY
Stephen J. Nelson, an inmate at the California State Prison in
Corcoran, filed this pro se civil rights action under 42 U.S.C. § 1983
complaining that prison officials at Salinas Valley State Prison ("SVSP")
required him to live and exercise in inadequate clothing. Defendants now
move for summary judgment on the grounds that the undisputed facts show
that they did not violate Nelson's rights under the Eighth Amendment and
that they are entitled to qualified immunity. For the reasons discussed
below, the motion for summary judgment will be granted.
Nelson spent five months in administrative segregation and had about
six hours of exercise a week. The weather was sometimes cold, wet and/or
windy. The question here is whether defendants have Eighth Amendment
liability for housing him and sending him to the exercise yard in just
boxer shorts and a t-shirt (and shoes and socks).
The following facts are undisputed unless otherwise noted:
Nelson was confined in the administrative segregation ("ad-seg") unit
at SVSP for five months, from August 8, 2001 until January 10, 2002.*fn1
He was then transferred to another prison. Nelson was put in ad-seg after
prison staff discovered in his cell an "inmate manufactured slashing type
weapon along with several pieces of flat metal and a piece of a hack saw
blade." Meza Decl., Exh. 1.
SVSP's Operational Procedure 29 ("OP 29") was a 42-page document
governing many aspects of life for ad-seg inmates, such as searches, yard
time, property restrictions, escort procedures, meals, and mail.*fn2
Inmates in ad-seg were subjected to very strict property controls. As
relevant here, OP 29 provided that each inmate was to receive two pairs
of socks, two t-shirts, one blue denim jacket without buttons, two
towels, two pairs of undershorts, one pair soft soled slippers, two
blankets, and two sheets. OP 29 at 5. Inmates in ad-seg were not allowed
to have jumpsuits, unlike the general prison population.
The parties dispute whether the blue denim jackets listed in OP 29 were
available to the inmates. Nelson has presented evidence that the jackets
were not available and that prison officials told him the jackets had
been ordered. Defendants contend the jackets were available.
Nelson states in his complaint that he was on walk-alone*fn3 status
for some of his stay in ad-seg and was on the control compatible exercise
yard for November, December and the part of January that he was in
ad-seg. OP 29 had a yard schedule that provided each exercise group with
three exercise periods per week from 8:00-11:30 a.m. or 12:00-3:30 p.m.
provided for walk-alone exercise "on a continuous rotating basis.
Walk alone exercise yard access will be for two-hour periods a minimum of
five times per week." OP 29 at 36. Inmates were allowed to choose whether
to go to the yard but once an inmate went to the yard, he had to remain
there until recall. OP 29 at 37. Defendants urge that inmates could use
common sense to leave the yard early if it was too cold, but OP 29's
provision that" [c]ommon sense shall prevail in extremely inclement
weather" does not state whether the common sense was that of the guards
or of the inmates and the court will not presume it was the latter
especially when the same paragraph stated that inmates had to remain on
the yard until recall. OP 29 at 37.
Nelson was outdoors for exercise about six hours per week during his
stay in ad-seg. See Complaint, p. 3; Opposition Brief, p. 11. He did not
describe how the six hours broke down i.e., how many days he went out
and for what period of time on each day, except to note that the exercise
sessions started at 8:00 a.m. During the time he was outdoors (as well as
indoors) he did not have a jumpsuit or jacket, and was' in boxer shorts
and t-shirt (hereinafter occasionally referred to as his "underwear").*fn4
Nelson presented weather data for the area of SVSP, the accuracy of
which defendants do not dispute. According to Nelson's unnumbered
exhibit, the temperatures and precipitation amounts were:
Average Lowest & Highest Total Monthly
Month Temperature Temperatures Precipitation
August 2001 62.2 47-77 trace amount
September 2001 62.0 47-99 0.06
October 2001 60.7 41-90 0.03
November 2001 56.5 34-83 0.91
December 2001 50.8 34-69 1.62
January 1-10, 2002*fn5
52.4 40-62 0.16
Nelson stated that inmates bad to "keep excersizing, moving, or all
huttle together or repeatedly stand in the shower to try and keep warm.
When I again voiced this violation at my classification I was told don't
go outside if you don't like it by A. Warden Tynes." Complaint, pp. 4-5
(grammar and spelling errors in original). Nelson's portrayal of a
perpetually cold, rainy and windy climate is not supported by his
exhibits: Nelson's exhibits show that there were only six days on which
the entire day's rain total exceeded one-fifth of an inch and only five
days on which the mean wind speed exceeded ten miles per hour.*fn6
Nelson does not dispute defendants' evidence that, during some months
of the year, excessive heat was a problem at SVSP. SVSP had a heat plan
for May through the end of October because outdoor temperatures could be
quite hot in Soledad, California. Thus, for more than half the time
Nelson was in ad-seg the prison had in place a plan anticipating high
Nelson also does not dispute that the interior of the prison was
climate controlled or that blankets and sheets were available to inmates
while in their cells. Muniz Decl., ¶ 15 ("Temperatures inside the
building are climate controlled and, therefore, jackets are not
necessary"); OP 29 at 5 (blankets and sheets were provided to ad-seg
VENUE AND JURISDICTION
Venue is proper in the Northern District of California because the
events or omissions giving rise to claims occurred at Salinas Valley
State Prison in Monterey County, which is located within the Northern
District. See 28 U.S.C. § 84, 1391(b). This Court has federal question
jurisdiction over this action brought under 42 U.S.C. § 1983. See
28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper where the pleadings, discovery and
affidavits show that there is "no genuine issue as to any material fact
and [that] the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). A court will grant summary judgment "against a party
who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear
the burden of proof at trial . . . since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial." Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). A fact is material if it might affect the
outcome of the lawsuit under governing law, and a dispute about such a
material fact is genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Generally, as is the situation with defendants' challenge to Nelson's
Eighth Amendment claim, the moving party bears the initial burden of
identifying those portions of the record which demonstrate the absence of
a genuine issue of material fact. The burden then shifts to the nonmoving
party to "go beyond the pleadings, and by his own affidavits, or by the
depositions, answers to interrogatories, or admissions on file,'
designate `specific facts showing that there is a genuine issue for
trial.'" Celotex, 477 U.S. at 324 (citations omitted).
Where, as is the situation with defendants' qualified immunity
defense, the moving party bears the burden of proof at trial, the moving
party must come forward with evidence which would entitle it to a directed
verdict if the evidence went uncontroverted at trial. See Houghton v.
Smith, 965 F.2d 1532, 1536 (9th Cir. 1992). A defendant must establish
the absence of a genuine issue of fact on each issue material to the
affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. When the defendant-movant has come forward with
this evidence, the burden shifts to the non-movant to set forth specific
facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule
56, as long as it is based on personal knowledge and sets forth specific
facts admissible in evidence. See
Schroeder v. McDonald 55 F.3d-454, 460 & nn.10-11 (9th Cir. 1995)
(treating plaintiffs verified complaint as opposing affidavit where, even
though verification not in conformity with 28 U.S.C. § 1746, plaintiff
stated under penalty of perjury that contents were true and correct, and
allegations were not based purely on his belief but on his personal
The court's function on a summary judgment motion is not to make,
credibility determinations or weigh conflicting evidence with respect to
a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must
be viewed in the light most favorable to the nonmoving party, and the
inferences to be drawn from the facts must be viewed in a light most
favorable to the nonmoving party. See id. at 631.
A. The Eighth Amendment, Exercise And Clothing
The Supreme Court has made clear that prison conditions may be
"restrictive and even harsh," but that they may not deprive inmates of
"the minimal civilized measure of life's necessities." Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). In order to establish that conditions
of confinement have reached such a level of deprivation, a plaintiff must
make both objective and subjective showings. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). The plaintiff must show that the objective
level of deprivation was sufficiently serious and that the defendant was
subjectively, deliberately indifferent to inmate health or safety. Id. To
survive summary judgment, Nelson must show that SVSP's requirement that
he live in and attend his outdoor exercise periods without a jacket or a
jumpsuit deprived him of the minimal civilized measure of life's
necessities and that defendants acted with deliberate indifference to his
health or safety.
Exercise is one of the basic human necessities protected by the Eighth
Amendment. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993).
Prisoners "confined to continuous and
long-term segregation" may not be deprived of outdoor exercise. Keenan
v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996), amended, 135 F.3d 1318
(9th Cir. 1998). A lengthy deprivation of outdoor exercise to such
prisoners is unconstitutional. See LeMaire, 12 F.3d at 1458; see, e.g.
Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (en banc) (denial of
outdoor exercise for 6-1/2 weeks satisfies objective prong of Eighth
Amendment deliberate indifference test).
Nelson asserts that the court overlooked his separate claim that being
placed on walk-alone status and being allowed only six hours of exercise
per week violated his constitutional rights. Opposition Brief, p. 11. The
court did not see that claim in the original complaint, but now will
address it. Nelson pled that he was in a group yard in November, December
and January, from which one can infer that he was on walk-alone status in
August, September and October. Accepting as true that Nelson was allowed
to exercise for just six hours per week for three months alone and more
than two months with a group, there would not be an Eighth Amendment
violation. Whether he exercised alone or in a group is irrelevant because
there is no right to group exercise. Being allowed six hours of outdoor
exercise per week for five months, as a matter of law, does not amount to
cruel and unusual punishment. There was no long-term denial of outdoor
exercise. Nelson had access to regular exercise periods and the exercise
was to be done outdoors: OP 29 scheduled 3 periods per week for regular
yard and 5 periods a week for walk-alones and, regardless of whether OP
29 was actually followed, Nelson admittedly received six hours of outdoor
exercise time per week. To the extent a straight exercise claim existed
in the complaint, it is now dismissed. Because there is no merit to the
claim, the court need not deal with Nelson's failure to show any
particular defendant's role in the alleged violation and need not afford
defendants an opportunity to raise defenses thereto, such as a failure to
exhaust administrative remedies or qualified immunity.
Having resolved any doubt that there was a violation based strictly on
the number of hours Nelson was allowed to exercise, the court returns to
what has appeared to be the real gravamen of Nelson's case, his claim
that he was required to live in his underwear and to exercise in his
underwear. As a matter of principle, Nelson is correct that a prisoner
generally cannot be forced to sacrifice one constitutional right in order
to exercise another. See Alien v.
City & County of Honolulu, 39 F.3d 936, 940 (9th Cir. 1994). It is thus
necessary to look at Eighth Amendment law on clothing to see if he has
raised a triable issue that he was forced to make such an election.
In his Eighth Amendment challenge to the clothing restrictions, Nelson
must show an objectively, sufficiently serious, deprivation and that the
prison official acted or failed to act with deliberate indifference to an
excessive risk to inmate heath or safety. See Farmer, 511 U.S. at 834
(citing Wilson v. Seiter, 501 U.S. 294, 297, 298 (1991)). In determining
whether a deprivation of a basic necessity is sufficiently serious to
satisfy the objective component of an Eighth Amendment claim, a court
must consider the circumstances, nature, and duration of the
deprivation. The more basic the need, the shorter the time it can be
withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert.
denied, 532 U.S. 1065 (2001).
a. A Sufficiently Serious Condition
"Although the routine discomfort inherent in the prison setting is
inadequate to satisfy the objective prong of an Eighth Amendment
inquiry, `those deprivations denying "the minimal civilized measure of
life's necessities" are sufficiently grave to form the basis of an Eighth
Amendment violation.'" Johnson, 217 F.3d at 731 (9th Cir. 2000). The
Amendment "imposes duties on [prison] officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must
`take reasonable measures to guarantee the safety of the inmates.'"
Farmer, 511 U.S. at 832 (citations omitted). The list of basic
necessities that must be provided to inmates has long included clothing.
See id; Helling v. McKinney, 509 U.S. 25, 32 (1993); DeShaney v. Winnebago
County Dept of Social Servs., 489 U.S. 189, 198-99 (1989): Hoptowit v.
Ray, 682 F.2d 1237, 1258 (9th Cir. 1982). "The denial of adequate
clothing can inflict pain under the Eighth Amendment." Walker v. Sumner,
14 F.3d 1415, 1421 (9th Cir. 1994) (inmate who alleged he did not receive
a jacket and his own boots when he returned to prison did not show
a triable issue of fact because did not describe the footwear he had
received, did "not allege that the weather conditions were such that the
deprivation of a jacket inflicted pain of a constitutional magnitude,"
and did not describe the clothing that he did have); see also Johnson v.
Lewis, 217 F.3d at 729-32 (Eighth Amendment claim stated by inmates who,
following separate riots were kept outside without blankets or other
coverings for four days in 70-94 degree temperatures on one occasion and
for 17 hours on another occasion when temperature fell to 22 degrees
while riots were investigated; inmates also alleged inadequate food,
water, and toilet facilities). An Eighth Amendment violation is more apt
to be found when inmates are deprived of clothing in extreme weather
conditions. See e.g., Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir.
1999) (denying motion for summary judgment based on qualified immunity
where inmates were reduced to digging in the dirt to construct earthen
walls as barriers against high winds while exposed for period of 17
hours); Gordon v. Faber, 800 F. Supp. 797, 798 (N.D. Iowa 1992), aff'd
973 F.2d 686, 687-88 (8th Cir. 1992) (affirming finding of
unconstitutional deprivation where inmates forced to stand outdoors
without hats or gloves for more than one hour in sub-freezing weather
with significant wind-chill factor); Balla v. Idaho State Bd. Of
Corrections, 595 F. Supp. 1558, 1566, 1575 (D. Idaho 1984) (finding
constitutional violation when prison officials provided clothing that was
"patently insufficient" to guard against Idaho's winter temperatures).
Nelson has shown the existence of a triable issue of fact on the
objective prong by coming forward with evidence that he was kept in his
underwear for five months, even during exercise sessions in sometimes
cold and inclement weather.
Defendants read Nelson's complaint too narrowly, and focus exclusively
on whether adequate clothing was provided for the exercise yard. The
complaint is broader and concerns not only the exercise yard but also the
requirement that Nelson, like all ad-seg inmates, live in just underwear
for his entire stay in ad-seg. The Eighth Amendment's prohibition against
cruel and unusual punishment has a human dignity aspect, see Trop v.
Dulles, 356 U.S. 86, 100 (1958), that seems to get lost when courts and
litigants try to push certain prison conditions through the two-pronged
test of objectively serious condition and deliberate indifference.
Providing boxer shorts to the male inmates covered their genitals and
therefore makes this case unlike the cases involving completely naked
inmates. Cf. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988)
(shielding one's unclothed figure from the view of strangers,
particularly strangers of the opposite sex, is impelled by elementary
self-respect and personal dignity). Requiring inmates to wear loin
clothes or diapers instead of boxer shorts also would take the case out
of the realm of the completely naked inmates, but few would not find such
clothing requirements troubling. OP 29 prohibited all inmates in ad-seg
from wearing jumpsuits and (accepting Nelson's version of the facts as
true) jackets were not available to the inmates. All ad-seg inmates had
just boxers and t-shirts, regardless of whether they were in ad-seg for
discipline or for their own protection and regardless of whether they
were in for short terms or long terms. Nelson spent five months in just
his underwear in ad-seg. Although it is an extremely close call, the
court concludes that requiring Nelson to wear just his underwear for his
five-month stay in ad-seg deprived him "of the minimal civilized measure
of life's necessities." Rhodes v. Chapman, 452 U.S. at 347. The
requirement that all ad-seg inmates spend all their time in only their
underwear rose to the level of an objectively serious condition and met
the first prong of an Eighth Amendment violation.
Defendants assert that OP 29 passes muster under Turner v. Safley,
482 U.S. 78 (1987). Turner does not apply to an Eighth Amendment claim.
See Jordan v. Gardner, 986 F.2d 1522, 1530 (9th Cir. 1993) (en banc).
Although Turner does not apply, defendants' security concerns would be
relevant to the Eighth Amendment inquiry. Cf. Williams v. Delo,
49 F.3d 442, 446 (8th Cir. 1995) (jail officials' removal of clothing and
bedding from misbehaving inmate for four days did not meet objective
prong of Eighth Amendment test; the deprivation of the property "serve[d]
the legitimate penological goals of preventing injury to the inmate,
injury to corrections officials, and damage to the facility"). Defendants
did not, however, offer competent evidence regarding the reasons for OP
29's clothing restrictions: the declarant demonstrated a lack of personal
knowledge when he stated the policy was in place before he arrived at his
post. (Likewise, Nelson's assertions about what a state court said about
the clothing policy is not competent evidence because he demonstrated no
personal knowledge of the state court
proceedings, even if one assumed that the state court's decision was
Defendants also argue that relief is barred because Nelson does not
claim any physical injuries as the basis for his damages against
defendants. Defendants' argument is unpersuasive because the statute they
cite has been construed to have a rather limited application.
42 U.S.C. § 1997e(e) provides: "No Federal civil action may be brought by
a prisoner confined in a jail, prison or other correctional facility for
mental or emotional injury suffered while in custody without a prior
showing of physical injury." The physical injury requirement only applies
to claims for mental and emotional injuries and does not bar an action
for a violation of a constitutional right. See Oliver v. Keller,
289 F.3d 623, 630 (9th Cir. 2002) (§ 1997e(e) inapplicable to claims for
compensatory damages not premised on mental or emotional injury); see also
Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir. 1999) (only the claim
for damages for mental or emotional injury should be dismissed). Even if
Nelson's complaint does include a request for damages for mental and
emotional injury, it also includes a claim for an Eighth Amendment
violation as to which the § 1997e(e) requirement does not apply. In other
words, damages would be available for a violation of his Eighth Amendment
rights without regard to his ability to show physical injury. Oliver made
this very point in holding that "§ 1997e(e) applies only to claims for
mental and emotional injury. To the extent that appellant's claims for
compensatory, nominal or punitive damages are premised on alleged
Fourteenth Amendment violations, and not on emotional or mental distress
suffered as a result of those violations, § 1997e(e) is inapplicable and
those claims are not barred." Oliver, 289 F.3d at 630.
b. Deliberate Indifference
A "prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the
official 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." Farmer, 511 U.S. at 837.
Nelson has failed to show a triable issue of fact that defendants acted
indifference. It is important to note that the Supreme Court, in
discussing the necessary mental state described it as knowing of and
disregarding "an excessive risk to inmate health or safety." Farmer, 511
U.S. at 837 (emphasis added). The Supreme Court did not describe it as
deliberate indifference to the "minimal civilized measure of life's
necessities," which Rhodes v. Chapman, 452 U.S. at 347, indicated was a
benchmark for challenges to conditions of confinement.
There is no evidence before the court that living in boxer shorts and a
t-shirt for five months and exercising in them six hours per week has any
health or safety consequence, let alone an excessive risk to health or
safety. More importantly, there is no evidence before the court that
defendants knew of such a risk. Nelson presented evidence that he alerted
defendants that it was cold, and alerted them to his apparently poor
lungs and need for an inhaler, but did not present any credible evidence
that being out in the cold actually had any known effect on one with his
physical ailments. There is no judicially noticeable ailment that follows
from exercising for periods of up to 3-1/2 hours in weather that dipped
as low as 34 degrees: Nelson has not shown the existence of a triable
issue of fact that any defendant acted with deliberate indifference to a
serious risk to his health.
Defendants therefore are entitled to judgment as a matter of law on the
Eighth Amendment claims that Nelson did not receive adequate exercise,
adequate clothing, and was forced to choose between the two
B. Qualified Immunity
The defense of qualified immunity protects "government officials . . .
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). The rule of qualified immunity "`provides ample protection to
all but the plainly incompetent or those who knowingly violate the law.'"
Burns v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
In the recent case of Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court set forth a particular sequence of questions to be considered in
determining whether qualified immunity
exists. The court must consider this threshold question: "Take in the
light most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional right?" Id.
at 201. If no constitutional right was violated if the facts were as
alleged, the inquiry ends and defendants prevail. See id. If, however, "a
violation could be made out on a favorable view of the parties'
submissions, the next, sequential step is to ask whether the right was
clearly established. . . . The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing
violates that right." Id. at 201-02 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
The first step under Saucier is to determine whether a constitutional
violation was established. Nelson has failed to establish that defendants
had violated his constitutional rights. Because no constitutional right
was violated on the facts taken in the light most favorable to Nelson,
In the interest of completeness, the court explains why Nelson also
would lose if the inquiry proceeded to the second step of the qualified
immunity analysis. The second step under Saucier is to consider whether
the contours of the right were clearly established, an inquiry that "must
be undertaken in light of the specific context of the case, not as a
broad general proposition." Saucier, 533 U.S. at 201.
The Ninth Circuit clarified the qualified immunity analysis for a
deliberate indifference claim in Estate of Ford v. Ramirez Palmer,
301 F.3d 1043, 1049-50 (9th Cir. 2002). The court explained that, for an
Eighth Amendment violation based on a condition of confinement (such as
the safety risk in Estate of Ford or the health risk in Nelson's case),
"`a prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
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 inferences.' . . . Thus, a reasonable prison official
understanding that he cannot recklessly disregard a substantial risk of
serious harm, could know all of the facts yet mistakenly, but
reasonably, perceive that the exposure in any given situation was not
that high. In these circumstances, he would be entitled
to qualified immunity. Saucier, 533 US. at 205." Estate of Ford 301 F.3d
at 1050 (quoting Farmer v. Brennan, 511 U.S. at 834). In Estate of Ford,
the court explained that even though the general rule of deliberate
indifference had been expressed in Farmer, no authorities had "fleshed
out fat what point a risk of inmate assault becomes sufficiently
substantial for Eighth Amendment purposes.'" Estate of Ford, 301 F.3d at
1051 (quoting Farmer, 511 U.S. at 834 n.3. Because it hadn't been fleshed
out, "it would not be clear to a reasonable prison official when the risk
of harm from double-celling psychiatric inmates with one another changes
from being a risk of some harm to a substantial risk of serious harm.
Farmer left that an open issue. This necessarily informs `the dispositive
question' of whether it would be clear to reasonable correctional
officers that their conduct was unlawful in the circumstances that [they]
confronted." Estate of Ford, 301 F.3d at 1051 (emphasis in original).
Applying Estate of Ford here, it would not have been clear to a
reasonable prison official when the risk of harm from being required to
live in and exercise in just underwear-changed from being a risk of some
(or even any) harm, to a substantial risk of serious harm to the inmate's
health. Although the law was clearly established that depriving an inmate
of outdoor exercise on a long-term basis violated the Eighth Amendment,
and although the law was clearly established that depriving an inmate of
adequate clothing violated the Eighth Amendment, the law was not very
well fleshed out on amount of clothing required to avoid an Eighth
Amendment violation. Although the court earlier in this decision found
that requiring an inmate to live in his underwear for five months was
sufficiently serious to establish the first prong of an Eighth Amendment
claim, the court recognizes the dearth of authority on the specific point
of how much clothing must be given to an inmate. Nelson had two quite
different situations. For the vast majority of his time in ad-seg, Nelson
was in his cell in a climate-controlled environment, and had access to a
blanket and sheet to provide additional warmth if the temperature was
uncomfortably cold. For the six hours each week Nelson exercised, he
faced occasional cold weather, very small amounts of rain, and a few
windy days. When he was outdoors for exercise, correctional officers
could reasonably rely on the fact that he would be exercising.
A reasonable prison official understanding that he could not be
deliberately indifferent to a serious risk to inmate health could know
that Nelson spent five months in no clothes other than boxer shorts and a
t-shirt and know that he had only those clothes to wear when he exercised
in the occasionally cold weather but reasonably perceive that Nelson's
exposure to any harm was not that high when (1) Nelson spent the vast
majority of his time in a climate-controlled environment, (2) Nelson was
allowed, but not required, to go outside for an exercise period for up to
3-1/2 hours at a time, (3) the temperature was in the 34-50 degree range
on some days, (3) notwithstanding his complaints that it was cold and he
was in bad health, Nelson continued to choose to go outside for the
exercise period even though he had the option to remain indoors. Nelson
states that inmates had to keep moving, exercising or "all huttle [sic]
together" to keep warm, Complaint, p. 4, but prison officials could
reasonably expect that inmates who attended the session would actually
engage in exercise, as that was what the officials were legally required
to provide. Prison officials would not have satisfied their
constitutional obligation to provide outdoor exercise if they had just
put shackled and handcuffed inmates outdoors and made them sit on the
ground. The information available to defendants did not make it so clear
that Nelson would be in pain or face a serious risk to his health while
inside his cell or during the six hours of exercise each week that no
reasonable officer would have let him remain in just his underwear.
Because the law did not put defendants on notice that their conduct
would be clearly unlawful, summary judgment based on qualified immunity
is appropriate. See Saucier, 533 U.S. at 202. Defendants met their burden
of proof in their moving papers. Nelson did not introduce evidence to
show the existence of a genuine issue of fact on the defense. Defendants
are entitled to judgment as a matter of law on the qualified immunity
For the foregoing reasons, defendants are entitled to judgment as a
matter of law on the merits of the Eighth Amendment claim and on their
defense of qualified immunity against Nelson's suit. Defendants' motion
for summary judgment is GRANTED. (Docket # 29.)
Nelson's application to file a lengthy opposition brief is GRANTED
(Docket # 42.) Judgment will now be entered in favor of all defendants
and against Nelson. The clerk shall close the file.
IT IS SO ORDERED