Appeal from the United States District Court for the Eastern District of California D.C. Nos. CV-03-02554-GEB/GGH & 2:03-CV-02554-GEB-GGH Garland E. Burrell, District Judge, Presiding.
The opinion of the court was delivered by: Kozinski, Chief Judge
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
We consider when prison officials may be held liable for depriving inmates of outdoor exercise.
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 confined 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 members would be inadequate to ensure safety.
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 defendant, 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, prisoners other than blacks had resumed outdoor exercise. Even so, attacks on officers occurred during this lockdown, including 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- 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.*fn1
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 prisoners from each other. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.
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 "objection 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).
 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 ment are needed to preserve internal order and discipline 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 common English word. See, e.g., Michael Crichton, Airframe 78 (1996) ("[S]he certainly knew where all the bodies were buried. 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.
 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 conditions.' " Farmer, 511 U.S. at 845 (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979)). The dissent apparently believes that, because ...