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March 17, 2004.


The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Judgment is entered in defendants' favor and against plaintiff.


  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). Page 2

  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. OP 29 Page 3 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 Page 4

 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 temperatures.

  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 ...

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