The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding without counsel with an action for violation of civil rights under 42 U.S.C. § 1983. The only remaining defendant, defendant Runnels (defendant), is an employee of the California Department of Corrections and Rehabilitation ("CDCR"). Two claims remain: one for denial of equal protection of the laws in violation of the Fourteenth Amendment; and an Eighth Amendment claim. Both claims concern the alleged denial of outdoor exercise. The Eighth Amendment claim concerns denial of outdoor exercise between: 1) December 26, 2003, and March 2004; and 2) January 27, 2005, and June 2005. Defendant has filed a motion for summary judgment with respect to plaintiff's Eighth Amendment claim in which he argues that he is immune from suit under the doctrine of "qualified immunity."*fn1 Defendant previously filed a motion for summary judgment and a decision was issued with respect to that motion on January 16, 2009. In an order dated May 27, 2010, defendant was granted leave to file a second motion for summary judgment in light of Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010).
I. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On November 16, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
II. Qualified Immunity Within The Context Of An Eighth Amendment Claim For Alleged Denial Of Outdoor Exercise
Government officials performing discretionary functions generally are shielded 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). In determining whether a governmental officer is immune from suit based on the doctrine of qualified immunity, the court must answer two questions. The first question is, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). The second question is "whether the right was clearly established." Id. "If the law did not put the [defendant] on notice that [his] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202. Put another way, a correctional officer is entitled to immunity unless it would be clear to a reasonable officer that denying outdoor exercise was unlawful in the situation he confronted. Norwood, 591 F.3d at 1068.
In Norwood, the Ninth Circuit addressed when a correctional officer is entitled to immunity from an Eighth Amendment claim for denial of outdoor exercise based on "qualified immunity." First, the court acknowledged that, pursuant to their decision in Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1995), there is a Constitutional right to outdoor exercise which may not be denied for inconsequential logistical concerns, Norwood, 591 F.3d at 1069, or punitive reasons, id. at 1070. However, the court found that there is no clearly established right to outdoor exercise in "in the midst of severe ongoing prison violence" id. at 1068, and temporary restrictions on outdoor exercise are lawful to help bring violence under control. Id. at 1069. The court based this finding, in part, on the clearly established premise that prison officials have a duty to assure their prisons are safe, id. at 1069, and they must balance this imperative against other obligations such as providing outdoor exercise. Id. Whatever measures are taken to halt violence are lawful as long as prison officials reasonably believe the measures would be effective in stopping violence, and erring on the side of caution by maintaining a prison lockdown longer than necessary is considered a "virtue." Id.
The Ninth Circuit described the situation confronted by the defendants in Norwood, where at least one prisoner had died and persons had been severely wounded, as "extraordinary violence gripping the prison threatening staff and inmates alike." Id. at 1068-69. The court also noted that there was a "serious risk that gangs would press unaffiliated inmates like Norwood into service." Id. at 1068. Ultimately, the Court decided the defendants in Norwood were entitled to summary judgment based on qualified immunity. Id. at 1070.
III. December 26, 2003, Through March 2004
In his amended complaint, which is verified, plaintiff alleges: On December 26th, 2003, the entire black inmate population was placed on lockdown status due to alleged information being received by High Desert State Prison, that black inmates were conspiring to assault staff. This racial lockdown called for no recreational periods . . . and lasted until March of 2004 . . . Am. Complt. at 2. Plaintiff asserts that on March 24, 2005, he was transferred from "B-Facility" at ...