Thomas v. Ponder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OTIS MICHAEL THOMAS,  No. 09-15522
Plaintiff-Appellant,
D.C. No.
v.
 3:06-cv-03581-
G. PONDER; M. J. KIRCHER; M. S. MMC
EVANS,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior United States District
Judge, Presiding

Argued and Submitted
April 7, 2010—Pasadena, California

Filed July 16, 2010

Before: Daniel M. Friedman,* Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;
Dissent by Judge Friedman

*The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.

10285
 THOMAS v. PONDER 10289
COUNSEL

Jeremy Maltby and Jonathan Wells Monson (argued),
O’Melveny & Myers, LLP, Los Angeles, California; Rebecca
S. Hekman (argued), UCLA School of Law Ninth Circuit
Clinic, Los Angeles, California, for the plaintiff-appellant.

Edmund G. Brown, Jr., Rochelle C. East, Thomas S. Patter-
son, Neah Huynh (argued), Office of the California Attorney
General, San Francisco, California, for the defendants-
appellees.

OPINION

REINHARDT, United States Circuit Judge:

Otis Thomas brought this suit seeking to establish that
prison officials (individually and collectively “prison offi-
cials”) violated his Eighth Amendment rights by denying him
outdoor exercise for 13 months and 25 days while he was in
a maximum security housing unit. The prison officials condi-
tioned Thomas’s access to outdoor exercise upon his signing
a “pledge form” promising that he would not engage in vio-
lence while participating in prison programs. Thomas signed
contemporaneous interview forms promising to “program
non-violently” but refused to sign the pledge form itself. The
prison officials insisted that only the pledge form would do
and continued to refuse to allow him any opportunity to exer-
cise until he signed the form.

The district court granted summary judgment for the prison
officials on Thomas’s 42 U.S.C. § 1983 claim. It concluded
that the denial of out-of-cell exercise for such an extended
period of time was “sufficiently serious” to constitute a valid
Eighth Amendment claim, but held that Thomas failed to
demonstrate that there was a genuine issue of material fact as
10290 THOMAS v. PONDER
to whether the prison officials had acted with “deliberate
indifference.” First, it concluded that Thomas had failed to
show that the prison officials believed that the risk of harm to
Thomas’s health was other than “insubstantial or nonexis-
tent.” Second, it concluded that there was insufficient evi-
dence to establish that the prison officials acted unreasonably.
The district court concluded that the prison officials’ depriva-
tion of Thomas’s right to exercise was reasonable because of
Thomas’s disciplinary history and the “genuine emergency”
at the prison, and because Thomas had the opportunity to sign
the pledge form at any time, and upon signing would have
been permitted to exercise out-of-cell.

We agree with the district court’s conclusion that the prison
officials’ denial of out-of-cell exercise for such an extended
period of time was “sufficiently serious” to constitute a valid
Eighth Amendment claim, but reject the district court’s other
rulings. We hold that as a matter of law the serious risk to
Thomas’s health posed by this extended deprivation of a basic
human necessity was “obvious” to the prison officials. We
also hold that a material factual issue exists as to whether the
prison officials’ actions were reasonable, in light of Thomas’s
limited disciplinary record, the security conditions at the
prison for the last 11 of the 14 months that Thomas was
deprived of exercise, and the prison officials’ willingness to
allow Thomas to resume the regular course of exercise upon
signing the formal pledge form. We therefore reverse the dis-
trict court and remand for further proceedings.

I. BACKGROUND

A. FACTUAL BACKGROUND

Otis Thomas (“Thomas”) was a prisoner housed in Facility
C at the Salinas Valley State Prison (“SVSP”) in 2005-06.
Facility C is a level IV maximum security housing unit with
the SVSP. Inmates are housed in Facility C for a variety of
reasons, including “a history of assaultive behavior and disci-
 THOMAS v. PONDER 10291
plinary actions, gang-related convictions, and lengthy or life
sentences.” On July 14, 2005, a Facility C inmate using a
homemade knife stabbed and seriously wounded two correc-
tional officers.1 In response, the prison officials placed the
SVSP on lockdown from July 14, 2005 to September 9, 2005.2
On September 9, 2005, prison officials introduced a “modi-
fied program” allowing “non-contact visits only, suspended
quarterly packages and curtailed outdoor recreation.” Under
this modified program, prisoners were deprived of all out-of-
cell exercise, fed in their cells, subjected to strip searches,
and, on the rare occasions that they were permitted to leave
their cells, were escorted in restraints.

On October 17, 2005, the Captain of Facility C, G. Ponder,
sent a memorandum to the Facility C inmates that explained
what they would be required to do in order to return from the
“modified” program to a “normal” program. The memoran-
dum stated, in relevant part:

I am developing a process to help the facility work
towards providing inmates that want to program
without violence an opportunity to do so. The choice
to program will be in the hands of each individual
inmate. The first step in this process will be inter-
views. The next step will be your commitment to
program without violence and verification of this
commitment by signing that fact. The next process
will involve Correctional Officers identifying
inmates that have shown willingness to program and
providing a list of those inmates to supervisory staff.
1
Thomas was not involved with this incident, or with any other incident
during this time period.
2
“Lockdown” occurs when prison officials suspend activities and privi-
leges for a portion of the prison’s population and “all but essential func-
tions are suspended in those affected housing units or sub-facilities, e.g.,
yard, canteen draws, religious services, and visiting.” 15 Cal. Admin.
Code § 3000.
10292 THOMAS v. PONDER
Inmates that fail to act in accordance with Depart-
mental rules and Institution procedures will result in
housing and program changes. Inmates are advised
that their privileges and access to programs will be
curtailed until you as an individual successfully
comply with this process.

Ponder’s program involved interviewing each inmate at least
twice. At each interview, the interviewee was required to sign
a “pledge” that he was willing to follow the proposed program
without violence. Inmates whom the prison deemed “willing
to program without violence” were typically returned to “nor-
mal” programming after their initial interview or signing of
the pledge form. Ponder explained, in a sworn declaration,
that once an inmate signed the pledge his return to normal
programing was also dependent upon prison officials under-
taking a review of his case to affirm that “no other factors evi-
dence a propensity for violence.” Inmates who refused to sign
the pledge, declined interviews, or were otherwise deemed to
have not participated “meaningfully” in the interview process
remained on “modified” program status.

In accordance with this review policy, prison officials inter-
viewed Thomas several times between August 2005 and June
2006. Before beginning these interviews, prison officials
instructed Thomas to fill out forms. Thomas answered all of
the questions on these interview forms and then he and a
prison official signed all of the forms. The interview forms
were all identical and all included the following statement and
question: “Programming on a level IV general population
yard requires participation without violence. Are you willing
to commit to this type of program? If no, give details?” In
response to this question Thomas wrote “Yes.” Another ques-
tion was “Do you have any safety concerns?” to which
Thomas answered “No.” The question “If the facility were
returned to normal program, could you program without vio-
lence on a level IV general population yard with inmates from
all races/ethnics [sic] or past or present gang affiliations?”
 THOMAS v. PONDER 10293
also appeared on each form, and in response to this question
Thomas also answered “Yes.”

After Thomas signed the forms, prison officials conducted
the interviews. During the interviews, prison officials gave
Thomas a pledge form and instructed him to sign. The pledge
form stated:

I am currently housed within Facility ‘C’ Salinas
Valley State Prison. I am also aware that this facility
is on a modified program status based upon several
acts of violence having occurred within the past 15
months.

By signing this document, I am advising staff that I
want to participate in the program review process
being implemented at this time. I am also stipulating
that I want to “do my own time” and will program
by not participating in gang violence.

I have been advised that my failure to act in accor-
dance with institutional rules and procedures may
result in program and housing changes. I am aware
that during the time I participate in the program
review process, I will retain my established
work/privilege group.

I am aware, if I am unassigned and I participate in
the program review process that my participation
does not constitute a credit earning assignment. Fur-
ther, I understand that my privileges and access to
programs will be curtailed until I successfully com-
plete this program and am returned to normal general
population program status.

I have been advised that the program review process
is ongoing and that I will be expected to maintain
compliance with regulations to participate. During
10294 THOMAS v. PONDER
the program review process I will be required to
interact with other inmates of all races and ethnicity
during all out of cell activities. The process and my
participation in it, is on-going and monitored. [sic]
During this period I understood that my progress and
suitability to remain in the program will be moni-
tored and evaluated by staff.

Thomas was later unable to recall whether he was asked to
sign the pledge form at every interview, but he stated that on
each occasion that he was asked to sign, he refused to do so.3
The prison refused to release Thomas from the modified pro-
gram and continued to deny him access to the outdoor exer-
cise yard, because he would not sign the pledge. A
Correctional Lieutenant in Facility C, Lieutenant J. Celaya,
subsequently explained that, because Thomas refused to sign
the pledge, he “posed an unknown risk and threat to prison
staff . . . .” Celaya also stated that Thomas “had prior disci-
plinary problems, and was suspected of gang involvement.”
Celaya conceded, however, that Thomas’s alleged gang
involvement was an unsubstantiated assumption. Moreover,
four other prisoners provided sworn declarations that the
prison had returned them to normal programming even though
they had never signed the pledge form.
3
Thomas’s reasons for refusing to sign the form are not immediately
evident from the record. Thomas has offered various explanations for his
refusal to sign. At one point, he stated that he refused to sign because he
believed that the pledge would provide for “endless punishment” or “un-
specified discipline” and would be used to force him to answer “questions
about other inmates,” when he was unwilling to do so. In his brief,
Thomas further explained that he:
did not object to pledging non-violence; rather, he believed that
California regulations did not allow the prison to deny inmates
exercise or other privileges for failing to sign such a “general
chrono” form, and was concerned that, by signing the form, he
might subject himself to discipline for an incident in which he
had no involvement.
 THOMAS v. PONDER 10295
Thomas finally relented and signed the pledge form on
August 31, 2006, at which juncture the prison officials
released him from the modified program and restored his
exercise privileges.4 Thomas testified that he signed the
pledge because he was tired, severely stressed, and losing
weight. Prior to his singing the pledge, the prison officials had
denied Thomas outdoor exercise for a total of 13 months and
25 days.

B. PROCEDURAL BACKGROUND

On June 5, 2006, while incarcerated at Centinela State
Prison in California, Thomas filed a 42 U.S.C. § 1983 action
against SVSP prison officials. Thomas amended this com-
plaint on July 5, 2006. In his amended complaint Thomas
alleged, inter alia, that prison officials Captain Ponder, Offi-
cer Kircher, and Warden Evans violated his Eighth Amend-
ment rights by denying him access to the exercise yard for
almost 14 months. None of the other allegations in his
amended complaint is before us on this appeal.

The prison officials filed a motion for summary judgment
on Thomas’ Eighth Amendment claim and the district court
granted the motion. It stated that it recognized that “[e]xercise
is one of the most basic human necessities protected by the
Eighth Amendment” and that Thomas had shown that his
deprivation was sufficiently serious for a valid Eighth
Amendment claim. It concluded, however, that for two rea-
sons Thomas had failed to show that the prison officials acted
with “deliberate indifference,” an essential element of an
Eighth Amendment claim. First, it concluded that Thomas
could not show that the prison officials were “subjectively
aware” of the risk to Thomas’s health posed by the extended
deprivation of exercise because “the undisputed evidence
shows they believed the risk of harm to [Thomas] was insub-
4
Thomas asserts that this was the second time he signed a pledge form.
The first time was July 26, 2006.
10296 THOMAS v. PONDER
stantial or nonexistent’ because [he] could have signed the
pledge at any time and gained immediate access to outdoor
exercise.” Second, it concluded that by keeping Thomas in the
modified program, and denying him outdoor exercise, the
prison officials had acted “reasonably,” because:

(1) Facility C was placed on lockdown and then
modified program in response to a “genuine emer-
gency,” (2) there was a rational connection between
requiring inmates to sign the CDC-128-B pledge and
restoring institutional security, (3) plaintiff repeat-
edly refused to sign the pledge, (4) plaintiff had a
lengthy discipline history, which included refusing
to obey staff orders and threatening staff and other
inmates, and (5) as a result of plaintiff’s refusal to
sign the pledge and his disciplinary history, defen-
dants were unable to assess the level of threat plain-
tiff posed to staff and other inmates should he be
returned to a normal program. Further, . . . almost a
year after the July 14, 2005 stabbing incident,
through June 2006, there were several other docu-
mented threats and assaults that took place at SVSP
and in Facility C that threatened the safety and
security of the institution and hindered the ability of
staff to return to Facility C to normal programming.

Thomas timely appeals the summary judgment order as to his
Eighth Amendment claim.

II. ANALYSIS

We review de novo a district court’s grant of summary
judgment. McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th
Cir. 2008). The non-moving party’s evidence “is to be
believed, and all justifiable inferences are to be drawn in [his]
favor . . . . [his] version of any disputed issue of fact is thus
presumed correct.” Eastman Kodak Co. v. Image Technical
Services, Inc., 504 U.S. 451, 456 (1992) (internal quotation
 THOMAS v. PONDER 10297
marks omitted). At this stage of proceedings, we do “not
weigh the evidence or determine the truth of the matter
[asserted], but only determine[ ] whether there is a genuine
issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054
(9th Cir. 1999) (en banc). “We will not reverse a district
court’s grant of summary judgment unless the party opposing
summary judgment has identified the evidence establishing a
genuine issue of material fact in its opposition to summary
judgment.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127,
1137 (9th Cir. 2009). An issue of material fact is genuine “if
there is sufficient evidence for a reasonable jury to return a
verdict for the non-moving party.” Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

We construe liberally the filings and motions of a pro se
inmate in a civil suit. Bias v. Moynihan, 508 F.3d 1212 (9th
Cir. 2007) holds that an ordinary pro se litigant, like other liti-
gants, must comply strictly with the summary judgment rules.
Id. at 1219 (citing Jacobsen v. Filler, 790 F.2d 1362 (9th Cir.
1986)). Pro se inmates are, however, expressly exempted
from this rule:

It is the element of “choice” which most clearly dis-
tinguishes pro se prisoner cases from [ordinary pro
se cases] . . . . an inmate’s choice of self-
representation is less than voluntary; and, when that
unwilling self-representation is coupled with the fur-
ther obstacles placed in a prisoner’s path by his
incarceration—for example his limited access to
legal materials and to sources of proof—it seems
appropriate to apply the requirements of the sum-
mary judgment rule with less than strict literalness.

Jacobsen, 790 F.2d at 1365 n.4 (internal citations and quota-
tion marks omitted). We have, therefore, held consistently
that courts should construe liberally motion papers and plead-
ings filed by pro se inmates and should avoid applying sum-
mary judgment rules strictly. See also Frost v. Symington, 197
10298 THOMAS v. PONDER
F.3d 348, 352 (9th Cir. 1999). Liberal construction is thus the
appropriate standard to apply to Thomas’s filings in this case.

A. The district court’s ruling that there was insufficient
evidence to establish that the prison officials knew of a
serious risk of substantial harm to Thomas’s mental and
physical health is incorrect as a matter of law

[1] Under Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009),
an inmate seeking to prove an Eighth Amendment violation
must “objectively show that he was deprived of something
‘sufficiently serious,’ ” and “make a subjective showing that
the deprivation occurred with deliberate indifference to the
inmate’s health or safety.” Id. at 812 (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). The second step, show-
ing “deliberate indifference,” involves a two part inquiry.
First, the inmate must show that the prison officials were
aware of a “substantial risk of serious harm” to an inmate’s
health or safety.5 Farmer, 511 U.S. at 837. This part of our
inquiry may be satisfied if the inmate shows that the risk
posed by the deprivation is obvious. See id. at 842 (“[A] fact-
finder may conclude that a prison official knew of a substan-
tial risk [to a prisoner’s health] from the very fact that the risk
was obvious.”). Second, the inmate must show that the prison
officials had no “reasonable” justification for the deprivation,
in spite of that risk.6 See id. at 844 (“[P]rison officials who
actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reason-
ably.”).
5
In its order, the district court erroneously considers whether the prison
officials were aware that Thomas was “suffering serious harm from the
deprivation” of exercise. The correct issue for consideration is, however,
whether the prison officials were subjectively aware of a “serious risk of
substantial harm.” Farmer, 511 U.S. at 837 (emphasis added); Helling v.
McKinney, 509 U.S. 25, 32 (1993) (emphasis added) (“That the Eighth
Amendment protects against future harm to inmates is not a novel proposi-
tion.”).
6
We discuss the “reasonableness” arguments infra.
 THOMAS v. PONDER 10299
[2] The district court concluded correctly that the prison
officials’ denial of out-of-cell exercise to Thomas for 13
months and 25 days was “sufficiently serious” to constitute a
valid claim under the Eighth Amendment. As the Supreme
Court noted in Wilson v. Seiter, 501 U.S. 294 (1991), prison
officials may violate an inmate’s Eighth Amendment rights
when they deprive him of “a single identifiable human need
such as food, warmth, or exercise.” Id. at 304. Here, as the
district court noted, Thomas satisfies Foster and Farmer’s
objective test based on the undisputed fact that he was denied
outdoor exercise for the 13 months and 25 days. We have held
consistently that “ordinarily the lack of outside exercise for
extended periods is a sufficiently serious deprivation” for
Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d
1444, 1457 (9th Cir. 1993). A prohibition on outdoor exercise
of six weeks is a “sufficiently serious” deprivation to support
an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203
F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai,
48 F.3d 1082, 1086 (9th Cir. 1994).

After determining that an individual has shown objectively
that he was deprived of something “sufficiently serious,” we
must next consider whether the risk to the inmate was suffi-
ciently “obvious” to the prison officials that they must have
been aware of the severity of the deprivation, before we move
on to consider whether the deprivation was nonetheless rea-
sonable in light of all of the circumstances. The district court
appears, however, not to have considered whether the risk to
Thomas’s health was “obvious,” but instead determined that
it was “insubstantial or nonexistent,” because (i) Thomas
could have signed the form at any time, and (ii) Thomas had
a “substantial” disciplinary history and security conditions at
the prison were “acute.” In so doing, it bypassed a necessary
step in its inquiry, and proceeded instead directly to the ques-
tion of reasonableness. We therefore turn, in the first instance,
to the question that the district court erroneously omitted:
whether the risk to Thomas’s health was “obvious” to the
prison officials.
10300 THOMAS v. PONDER
[3] Any argument that the risk to Thomas’s health was not
“obvious” fails as a matter of law. See Farmer, 511 U.S. at
842. Farmer’s obviousness requirement does not necessitate
a showing that an individual prison official had specific
knowledge that harsh treatment of a particular inmate, in par-
ticular circumstances, would have a certain outcome. Rather,
we measure what is “obvious” in light of reason and the basic
general knowledge that a prison official may be presumed to
have obtained regarding the type of deprivation involved. Id.
For example, for the purposes of an obviousness analysis, a
prison warden is deemed to have the general knowledge that
is expected, at a minimum, of an individual performing the
functions of that job. He cannot disclaim an understanding
that is essential to the performance of his duties and that has
been announced in our cases for over 30 years. Id. (“if an
Eighth Amendment plaintiff presents evidence showing that
a substantial risk was . . . longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,
and the circumstances suggest that the defendant-official
being sued had been exposed to information concerning the
risk and thus ‘must have known’ about it” such evidence suf-
fices) (citations and quotations omitted).

[4] As the district court acknowledged, “[e]xercise is one
of the most basic human necessities protected by the Eighth
Amendment.” Like food, it is “a basic human need protected
by the Eighth Amendment.” Keenan v. Hall, 83 F.3d 1083,
1091 (9th Cir. 1996); see also Wilson, 501 U.S. at 304. Our
case law uniformly stresses the vital importance of exercise
for prisoners. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th
Cir. 1993) (“Exercise has been determined to be one of the
basic human necessities protected by the Eighth Amend-
ment.”); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.
1979) (“There is substantial agreement among the cases in
this area that some form of regular outdoor exercise is
extremely important to the psychological and physical wellbe-
ing of the inmates.”).7 As we held in Foster, “if an inmate
7
At least one other circuit has reached a similar conclusion. See French
v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (holding that “[l]ack of
 THOMAS v. PONDER 10301
presents evidence of very obvious and blatant circumstances
indicating that the prison official knew [a substantial risk of
serious harm] existed, then it is proper to infer that the official
must have known of the risk.” 554 F.3d at 814 (citation omit-
ted).

[5] It is undisputed by the parties that the prison officials
knew the length and scope of Thomas’s confinement without
outdoor exercise. Prison officials made and reviewed the deci-
sion to keep Thomas confined without out-of-cell exercise,
and Thomas submitted repeated written and oral complaints
to prison officials about his deprivation of out-of-cell exer-
cise. For over thirty years, we have emphasized that “some
form of regular outdoor exercise is extremely important to the
psychological and physical wellbeing of the inmates.” Spain,
600 F.2d at 199. California strictly regulates this “regular out-
door exercise,” ordinarily requiring prisons to provide inmates
held in the general population with at least three hours of
exercise per week and inmates held in segregation with at
least one hour of exercise per day. Cal. Code Regs. tit. 15,
§§ 1065, 3343(h) (2006). The same regulations prohibit disci-
plining inmates by depriving them of outdoor exercise for
more than ten days, absent extreme circumstances. Id.
§ 3322(c).

[6] In light of the above, we conclude that the prison offi-
cials were aware as a matter of law of the potential conse-
quences of depriving an inmate of out-of-cell exercise for an
extended period of time. The mere fact of the total deprivation
of Thomas’s right to out-of-cell exercise for almost fourteen
months is sufficient, in light of the established law, to render
it obvious to the prison officials that their actions posed a
“substantial risk of serious harm” to Thomas’s mental and

exercise may certainly rise to a constitutional violation. Where movement
is denied and muscles are allowed to atrophy, the health of the individual
is threatened and the state’s constitutional obligation is compromised”).
10302 THOMAS v. PONDER
physical health. We therefore reject the district court’s ruling
to the contrary.

B. A genuine issue of material fact exists as to whether
the prison officials acted reasonably in depriving Thomas
of all out-of-cell exercise for 13 months and 25 days in
light of all the circumstances

[7] The district court concluded that there was insufficient
evidence to establish that a genuine issue of material fact
existed as to whether the prison officials’ deprivation of
Thomas’s right to out-of-cell exercise was “reasonable.”
Given the record before us, and the seriousness of the risk to
which Thomas was subjected, it is difficult to conceive how
the prison officials actions would be deemed “reasonable.”
Nevertheless, the issue is one of fact that must be presented
to a fact-finder.

The district court found that the prison officials acted rea-
sonably in light of Thomas’s “lengthy disciplinary history”
and of other actual or threatened violence at Facility C in
2005 and 2006, and because Thomas could have signed the
pledge form at any time. We reverse this ruling, as well. We
hold that the evidence in the record demonstrates that
Thomas, at the least, raised a genuine issue of material fact as
to whether the prison officials acted reasonably in light of: the
serious risk to Thomas’s mental and physical health; the level
of documented assaults and threats at the facility during the
last 11 months Thomas was deprived of exercise; Thomas’s
limited disciplinary record; his execution of other forms pro-
vided by the prison in which he promised to “program non-
violently”; and the prison authorities’ failure to consider pro-
viding him with alternative opportunities to exercise.

In reaching its conclusion that the prison officials reason-
ably relied on Thomas’s disciplinary history when they
decided to deprive him of exercise for almost 14 months, the
district court relied on LeMaire v. Maass, 12 F.3d 1444 (9th
 THOMAS v. PONDER 10303
Cir. 1993) in which a prisoner had attacked a prison guard,
“savagely attacked” another inmate, assaulted numerous
prison officers with hot water, toilet water, food, feces, and
urine, had at least 25 major rule violations in a two year
period, and attacked two prison officials as he exited an exer-
cise cubicle (an act “he vowed to repeat” if he were allowed
to exercise again). Id. at 1448, 1458. The LeMaire court found
that restricting such a prisoner’s exercise privileges was rea-
sonable “because he both abused them and represent[ed] a
grave security risk.” Id. at 1458. However, Thomas’s disci-
plinary history, as it appears in the record before us, bears
very little resemblance to LeMaire’s. Thomas’s record lists
only two disciplinary infractions: one episode of battery of an
inmate in 2003 and one threat of violence to an inmate in
2002. The only disciplinary infraction during Thomas’s 13-
month-25-day confinement without out-of-cell exercise was a
report filed by a prison official charging him with “willfully
obstructing a police officer” because he submitted a complaint
to the prison Warden about the officials’ refusal to allow him
to exercise. LeMaire, therefore, has little relevance to the
present case.

Furthermore, the evidence in the record demonstrates that
the sole reason that Thomas was kept on modified program-
ming was his failure to sign the pledge form, not any fear that
prison officials harbored about Thomas’s dangerousness. The
very fact that as soon as Thomas signed the pledge form he
was permitted to engage in out-of-cell exercise shows that the
prison officials did not consider him to be intrinsically dan-
gerous, but apparently thought that he was “dangerous” only
as long as he refused to sign the form. Both the district court
and the prison officials assert that if Thomas had “signed the
pledge at any time” he would have “gained immediate access
to outdoor exercise.”8 Thus, there was apparently nothing
8
The prison officials concede as much in their brief, where they state
that “as the district court noted . . . [Thomas] ‘could have signed the
pledge at any time and gained immediate access to outdoor exercise’
. . . . access to outdoor exercise was easily attainable . . . all he had to do
was simply sign the pledge form.’ ”
10304 THOMAS v. PONDER
about Thomas that warranted deprivation of out-of-cell exer-
cise other than the absence of his signature on the pledge. In
addition, the record also shows that, apart from his refusal to
sign the pledge form, Thomas cooperated with the multiple
interviewers, and committed in writing to non-violence in
separate contemporaneous interview forms. The district court
did not consider these contemporaneous signed interview
forms,9 even though they pose a significant obstacle to the
prison officials’ assertion that they deprived Thomas of out-
of-cell exercise because they were concerned that he posed a
threat of violence to other inmates—a threat that they later say
would have been alleviated had he signed the pledge itself.

In reaching its conclusion that the prison officials’ refusal
to allow Thomas to exercise outdoors was reasonable, the dis-
trict court also considered the history of violence at SVSP.
According to the district court, the prison officials acted rea-
sonably in depriving Thomas of exercise because they were
responding to a “genuine emergency.” We have held previ-
ously that prisons may curtail inmates’ outdoor exercise
“when a genuine emergency exists.” Specifically, “prison
officials may be more restrictive than they otherwise may be,
and certain services may be suspended temporarily.” Hop-
towit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) abrogated
on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
Such an emergency may occur following outbreaks of
extraordinary levels of violence in a prison. Norwood v.
Vance, 572 F.3d 626, 631 (9th Cir. 2009) (“When violence
rises to unusually high levels, prison officials can reasonably
believe it is lawful to temporarily restrict outdoor exercise to
help bring the violence under control.”)
9
The prison officials argue that the district court disregarded these forms
because “Thomas never alerted the district judge that these forms were rel-
evant to his outdoor-exercise claim.” Thomas, however, cited these forms
repeatedly in his opposition papers, including the first two pages of his
declaration.
 THOMAS v. PONDER 10305
In this case, the prison officials make no substantial argu-
ment that the “emergency” caused by the July 14, 2005 inci-
dent in which a Facility C inmate stabbed two correctional
officers endured for the 13 months and 25 days that Thomas
was deprived of out-of-cell exercise. To the contrary, they
admit that the lockdown that the “emergency” precipitated
lasted for less than two months, from July 14, 2005 to Sep-
tember 9, 2005. Thereafter, the authorities introduced the
“modified program,” to which individual prisoners were sub-
ject until they signed the pledge. The record shows that no
further lockdown occurred at the facility, and 148 other Facil-
ity C inmates returned to normal programming while the
deprivation of Thomas’s out-of-cell exercise remained in
force.

The prison officials’ contention that from July 14, 2005
through June 2006 “there were several other documented
threats and assaults that took place at SVSP” does not estab-
lish that following the end of the lockdown on September 9,
2005, there was a “state of emergency” in the prison.10 Docu-
mented threats and assaults happen frequently in prisons.
Given that an emergency is different from normal prison con-
duct, an emergency cannot be deemed to exist simply because
there are documented threats and assaults from time to time—
otherwise every prison would be in a constant state of emer-
gency.

Indeed, Thomas’s case is readily distinguishable from our
“genuine emergency” cases, upon which the district court
relied. The district court cited, for example, Hayward v.
Procunier, 629 F.2d 599 (9th Cir. 1980), a case in which we
10
Thomas was deprived of exercise for a total of 13 months and 25 days.
For the first two months, the prison was on lockdown, for the remaining
11 months and 25 days it was not. During some part of nine of those
remaining 11 months, the “documented threats and assaults” are alleged
to have occurred. The prison officials offer no evidence that any incidents
of any kind occurred during the final two months prior to the date on
which Thomas signed the pledge and his exercise privileges were restored.
10306 THOMAS v. PONDER
ruled that a “genuine emergency” existed at San Quentin
prison in 1974 following a series of extremely violent inci-
dents. Id. at 600, 603. We held that a five-month lockdown of
the prison, including restrictions on out-of-cell exercise—
initially on all out of cell exercise, but with “[s]ome yard
exercise . . . permitted within a month after the lockdown
began”—was permissible in such circumstances. Id. at 600.
The extremely violent incidents, including “82 assaults with
weapons and 12 killings, as well as 71 cases of possession of
weapons and 2 attempted escapes,” id., at San Quentin in
1974 were, however, quite distinct from the single stabbing
incident, albeit of two guards, that occurred while Thomas
was a prisoner at SVSP.

Moreover, we held that the restrictions on outdoor exercise
imposed in Hayward were permissible in part because they
were temporary, and because the inmates in that case “were
allowed approximately the minimum exercise mandated in
Spain within a month after the imposition of the lockdown.”
Id. at 603. The prison officials contend that Thomas’s depri-
vation of out-of-cell exercise was, like that of Hayward, a
“temporary” measure, because Thomas could have signed the
pledge at any time. Thomas’s 13 month and 25 day confine-
ment without out-of-cell exercise was not, however, “tempo-
rary.” Whether a deprivation is temporary depends on the
expiration date, if any, of the prison’s policy, not on whether
an individual can escape its application by one means or
another. Here, the policy was of indefinite duration. In Thom-
as’s case the deprivation would have lasted even longer than
the almost 14 months it did, had Thomas not capitulated and
signed the form because the ban on exercise had begun to
affect his health.

The district court’s conclusion that the prison officials’ pol-
icy was “reasonable” is also highly questionable in light of the
absence of any evidence in the record that the prison officials
considered whether there were any alternative means of pro-
viding Thomas out-of-cell exercise. Even where security con-
 THOMAS v. PONDER 10307
cerns might justify a limitation on permitting a prisoner “to
mingle with the general prison population” such concerns “do
not explain why other exercise arrangements [are] not made.”
Spain, 600 F.2d at 200; see also Lopez, 203 F.3d at 1133
(holding that even if denying Lopez access to the general rec-
reation yard was reasonable, “it does not explain why Lopez
was not given some other opportunity for outdoor exercise.”).
The prison officials argue that “Thomas was offered alterna-
tives to no exercise, when Defendants offered him opportuni-
ties for outdoor exercise once in August 2005, once in
September 2005, once in October 2005, twice in November
2005, and an unspecified number of times between January
2006 and June 2006.” The occasions cited by the prison offi-
cials are, in each case, those on which Thomas was offered
the pledge form and refused to sign, not occasions on which
he was offered “some other opportunity for outdoor exercise,”
and declined to accept that offer.

The prison officials’ repeated assertion that the deprivation
of exercise was “reasonable” because Thomas could have
signed the pledge form at any time and thereafter would been
permitted to exercise misses the point completely and is
entirely inconsistent with our previous holdings. See Foster,
554 F.3d at 814. As we discuss supra, we have held that
deprivation of exercise may be “reasonable” in certain situa-
tions, such as during a “state of emergency” in a prison, or
when a prisoner poses such a threat to inmates or guards that
his confinement without exercise is the only way to maintain
the security of the facility. Under the circumstances present
here, however, in which the punishment of deprivation of
exercise appears clearly not to have been necessary to main-
tain order in the prison, it is difficult to conceive of how a
deprivation of a “basic human necessity,” LeMaire, 12 F.3d
at 1457, may be deemed reasonable. Thomas testified that
during the 13 month 25 day period of confinement without
out-of-cell exercise he did not sign and had no intention of
ever signing the pledge form. Like the inmate in Foster,
Thomas refused repeatedly to abide by a prison policy, and
10308 THOMAS v. PONDER
complained to prison officials about the deprivation inflicted
upon him by prison officials in response to his refusal to
adhere to the policy.11 Foster, 554 F.3d at 812. In common
with Foster, Thomas could have chosen to behave differently,
but he did not, and in punishing him for that choice the prison
officials placed him at risk of substantial physical and mental
harm. Id. at 812-14. We therefore hold that, as in Foster,
Thomas has, at the very least, raised a genuine issue of mate-
rial fact as to whether the prison officials’ actions were rea-
sonable.

[8] In sum, Thomas has, at the very least, raised a genuine
issue of material fact as to whether the prison officials acted
reasonably in denying him of all out-of-cell exercise for 13
months and 25 days. The record shows that Thomas had
already promised to “program non-violently” in the separate
interview forms that he signed. Neither Thomas’s own limited
disciplinary record, nor the occasional documented threats or
acts of other prisoners appears to have rendered it reasonable
to deprive him of all out-of-cell exercise opportunities during
the lengthy period involved. The record also reflects that the
prison officials failed to consider other ways of providing
Thomas with sufficient exercise that would not have impli-
cated any of their purported security concerns. Finally, the
prison authorities’ contention that Thomas could have signed
the pledge form at any time would not appear to provide a jus-
tification for their actions over so long a period. We therefore
hold that the district court erred in ruling that there was insuf-
11
The prison officials do not argue explicitly that Thomas’s refusal to
sign the pledge form demonstrated a dangerous resistance to authority or
a failure to comply with or abide by the rules that justified his prolonged
confinement without exercise. Even if the prison officials had made such
an argument, however, and even if such an argument had merit, it would
be highly unlikely to outweigh the prison officials’ responsibility to safe-
guard an inmate’s health. It is thus hard to envisage any circumstances in
which the refusal to sign a form would justify jeopardizing an inmate’s
health by depriving him of all opportunity to exercise for almost 14
months.
 THOMAS v. PONDER 10309
ficient evidence to raise a genuine issue of material fact as to
whether the prison officials acted reasonably. Accordingly,
we reverse the district court’s ruling granting summary judg-
ment to the prison officials.

We should add that we have difficulty in conceiving how
the prison officials might be able to justify the deprivation of
so critical a human necessity as exercise for a period of
almost 14 months on the basis of “reasonableness,” as they
would have been willing to allow Thomas to enjoy out-of-cell
exercise throughout almost all of this period if he had signed
the pledge form. Nevertheless, because we are asked to decide
only whether the district court’s ruling on the prison officials’
motion for summary judgment was erroneous and because
Thomas has not asked us to grant him relief in the form of
summary judgment, we are reluctant to do more than reverse
and remand for further proceedings.

C. We decline to reach the prison officials’ argument
that they are entitled to qualified immunity

The district court did “not reach defendant’s argument that
they are entitled to qualified immunity,” because it found that
Thomas had failed to make any actionable constitutional
claims. The prison officials suggest that, irrespective of our
ruling on Thomas’s constitutional claims, we should affirm
the district court’s grant of summary judgment to the prison
officials on the ground of qualified immunity.

In order to establish qualified immunity, a government offi-
cial must show that his “conduct has not violated any ‘clearly
established’ constitutional right of which a reasonable person
would have known.” Foster, 554 F.3d at 812 (internal quota-
tion marks omitted). Although the prison officials have raised
this issue on appeal, they have not attempted to show how or
why each of the named prison officials is entitled to qualified
immunity, nor did they do so before the district court. Cer-
tainly none has shown any reason for such relief in light of
10310 THOMAS v. PONDER
our reversal and remand on the question of a constitutional
violation.

[9] In light of the above, we decline to consider the ques-
tion of qualified immunity for the first time on appeal, and
remand the case to the district court to consider that issue in
the first instance, at such time in the further proceedings as it
may be appropriate to do so.

REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS IN LIGHT OF THIS OPINION.

FRIEDMAN, Circuit Judge, dissenting:

In my view, the appropriate and dispositive inquiry in this
case is whether the prison officials abused their discretion or
otherwise acted unreasonably in requiring the prison inmates,
as a condition of their release from various restrictions
imposed following a lockdown (including the ability to leave
their cells for outdoor exercise, the restriction here at issue),
to sign a pledge that they would not engage in violent conduct
if they were so released. Since I conclude that the prison offi-
cials did not abuse their discretion, I would affirm the district
court’s grant of summary judgment dismissing the inmate’s
damage suit under 42 U.S.C. § 1983, alleging that denying
him outdoor exercise for almost fourteen months because of
his refusal to sign the pledge, subjected him to cruel and
unusual punishment in violation of the Eighth Amendment.

The appellant Thomas was housed in a maximum security
unit of a California state prison. The prison was locked down
after another inmate in the unit stabbed and seriously
wounded two correctional officers. The lockdown, during
which prisoners were confined to their cells and could leave
them only in emergencies or for extraordinary circumstances,
was in effect for approximately two months.
 THOMAS v. PONDER 10311
When the lockdown ended, the prison officials introduced
a “modified” program containing many of the same restric-
tions that had existed during the lockdown, including the pro-
hibition on leaving the cell for outdoor exercise. To leave the
“modified” program and to return to a “normal” one, inmates
were required to be interviewed and to sign a pledge. In his
interviews, Thomas answered “yes” to the following ques-
tions on an interview form: “Programming on a level IV gen-
eral population yard requires participation without violence.
Are you willing to commit to this type of program? If not,
give details?” “If the facility were returned to normal pro-
gram, could you program without violence on a level IV gen-
eral population yard with inmates from all races/ethnics [sic]
or past or present gang affiliations?” He answered “no” to the
question “Do you have any safety concerns?”

The pledge form that Thomas refused to sign for a substan-
tial period, although he was asked to do so on several occa-
sions and apparently informed that if he did so he could have
outdoor exercise, contained the following statement:

By signing this document, I am advising staff that I
want to participate in the program review process
being implemented at this time. I am also stipulating
that I want to “do my own time” and will program
by not participating in gang violence.

Prison officials, headed by the warden, are responsible for
maintaining order and imposing discipline in the prison. They
must protect the inmates and prison employees, including the
guards and correctional officers, against violence and injury.
In carrying out these responsibilities, they necessarily must
have broad discretion in deciding how to run the prison and
to determine what steps are appropriate and necessary to deal
with particular situations and problems as they arise. Since the
facility where Thomas was housed was a maximum security
unit, one must assume that its inhabitants included many vio-
lent and dangerous prisoners.
10312 THOMAS v. PONDER
Considering all the circumstances, I cannot say that the
prison officials abused their discretion or otherwise acted
unreasonably in requiring the inmates of that maximum secur-
ity unit to sign the pledge form containing the commitment
not to engage in violence, as a condition of their returning to
the regular prison program, which included outdoor exercise.