The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER GRANTING DEFENDANTS BOURLAND, GIURBINO, JANDA AND DOVEY'S MOTION FOR SUMMARY JUDGMENT PURSUANT TOFED.R.CIV.P.56(c) [Doc. No. 106]
Gregory Norwood ("Plaintiff"), a state prisoner currently incarcerated at the California State Prison located in Corcoran, California, is proceeding pro se and in forma pauperis with a First Amended Complaint ("FAC") filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.
Currently pending before the Court is Defendant Bourland, Dovey, Giurbino and Janda's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 106].
II. PROCEDURAL BACKGROUND
Defendants Bourland, Dovey, Giurbino and Janda*fn1 move for summary judgment on the grounds that: (1) no genuine issues of material facts exist to show that they violated Plaintiff's Eighth Amendment rights; and (2) they are entitled to qualified immunity. On July 14, 2009, the Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn2 Plaintiff filed his Opposition on July 24, 2009 [Doc. No. 113]. The Court also granted Defendants' request to file a supplement to their Motion in light of the Ninth Circuit's recently published opinion in Norwood v. Vance, 572 F.3d 626 (9th Cir. 2009). See July 14, 2009 Order at 1. Because Defendants were permitted to supplement their Motion, the Court permitted Plaintiff to file a Supplemental Opposition [Doc. No. 117]. Defendants filed their Reply on August 13, 2009 [Doc. No. 113].
In addition, Plaintiff's First Amended Complaint is verified under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under FED.R.CIV.P. 56.).
Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS Defendants Bourland, Giurbino, Janda and Dovey's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56(c) for the reasons set forth in detail below.
III. PLAINTIFF'S FACTUAL ALLEGATIONS
On August 18, 2005, Calipatria State Prison ("CAL") was placed on lockdown following an alleged assault involving Hispanic inmates and staff. (See FAC at 22.) On November 7, 2005, Plaintiff was transferred from California State Prison, Sacramento to CAL. (Id.) Upon Plaintiff's arrival, CAL remained on lockdown stemming from the August 18, 2005 incident. (Id.) Plaintiff alleges that as a result of the lockdown, he was confined to his cell for twenty-four hours a day, seven days a week, with the exception of brief shower periods. (Id. at 3.) Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Woodford, Janda, Bourland and Giurbino deprived him of outdoor exercise from November 7, 2005 to December 16, 2005, a period of 39 days. (Id.) The deprivation of outdoor exercise allegedly caused Plaintiff to suffer headaches, muscle cramps, stress, anxiety and depression. (Id.)*fn3
On November 21, 2005, Plaintiff filed a CDC Form 602 grievance on behalf of a group of inmates to request access to outdoor exercise. (Id. at 21-23.) The grievance was denied by Defendant Janda, CAL Associate Warden during this time period. (Id. at 6.) Plaintiff filed a Second Level Appeal which was also denied by Defendant Bourland, CAL Chief Deputy Warden. (Id. at 24-25.) Plaintiff then appealed to the Director's Level which was also denied. (Id. at 26.) The denials indicate that no recreational activities were permitted for general population inmates due to the State of Emergency instituted on August 18, 2005. (Id. at 24, 26). The denials also indicate that the modified program and lockdown were initiated for reasons of security and safety, the continued suspension of yard privileges was necessary, and the decision regarding the reinstatement of yard privileges was being reviewed on a daily basis. (Id. at 24-26.)
IV. DEFENDANTS'FACTUAL ALLEGATIONS
On August 18, 2005, several Hispanic inmates at CAL were involved in "multiple assaults or attempted murders of correctional staff which resulted in a lockdown." (Giurbino Decl. ¶ 2.) During the riot, several correctional officers were injured and staff used deadly force which resulted in an inmate death. (Builteman Decl. ¶ 4(a), Ex. A, Crime/Incident Report dated September 8, 2005.) Plaintiff was transferred to CAL on November 8, 2005 and thus, had no involvement in the prison riot that occurred on August 18, 2005. (Id. at ¶ 6.)
On August 19, 2005, Warden Giurbino requested that a State of Emergency be declared which was granted. (See Giurbino Decl. at ¶ 7.) As a result of the State of Emergency, a "lockdown" went into effect at CAL which included no outdoor exercise for inmates on Facilities A, B, and C. (Id.) Giurbino was responsible for "making decisions regarding programming at the prison." (Id. at ¶ 5.) His subordinates, Bourland and Janda, "did not have authority to deviate from the program status ...