FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEWAYNE MCGEE RICHARDSON,
Plaintiff-Appellant,
v.
D. L. RUNNELS, Warden; M. D.
MCDONALD, Associate Warden; T.
FELKER, Chief Deputy Warden; R.
K. WONG, Captain; D.
BLANKENSHIP, Captain; D.
PEDDICORD, Lieutenant; M. JOCELYN
LOPEZ WRIGHT, Lieutenant; D. J. No. 07-16736
DAVEY, Sergeant; T. POSCH, D.C. No.
Sergeant; M. ROBERTS, Sergeant; CV-04-00393-
B. HULBERT, Correctional Officer; MCE/GGH
and J. SANTANA, Correctional OPINION
Officer,
Defendants-Appellees,
and
WAGNER, Appeals Coordinator; D.
JACKSON, Appeals Coordinator; R.
RATH; J. ARCEO, Captain, Appeals
Examiner; N. GRANNIS, Chief
Inmate Appeals,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
February 13, 2009—San Francisco, California
Filed January 12, 2010
913
914 RICHARDSON v. RUNNELS
Before: John T. Noonan, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.
Opinion by Judge Noonan
916 RICHARDSON v. RUNNELS
COUNSEL
Cynthia J. Larsen, Sacramento, California; Tara M.
McManiba, Sacramento, California, for the plaintiff-
appellant.
John W. Riches, II, Sacramento, California, for the
defendants-appellees.
OPINION
NOONAN, Circuit Judge:
DeWayne McGee Richardson appeals the summary judg-
ment entered against him by the district court in his action
under 42 U.S.C. § 1983 against the warden and designated
officers of High Desert State Prison (“HDSP”). Holding that
the defendants offered no evidence to disprove his claim of
racial discrimination governing the prison lockdowns to
which he was subjected, we reverse the judgment of the dis-
trict court as to the racially-discriminatory lockdowns.
Richardson’s Eighth Amendment claim may also proceed.
We affirm the judgment of the district court as to his claim of
violation of his right to due process.
FACTS
Richardson, an African-American, is serving a life term in
HDSP, a high security California prison, of which the defen-
dants are officials. He was housed in Facility D, which con-
tained high risk prisoners, a number of whom were African-
American.
Richardson failed to follow the local rule requiring specific
objections in any oppositions to summary judgment. He did
RICHARDSON v. RUNNELS 917
file a “Statement of Relevant Facts on Lockdowns.” On
appeal, he argues that this statement was sufficient substan-
tive compliance by a pro se plaintiff. The defendants stand on
the rule. Rather than resolve this dispute, we treat as compen-
dious and convenient the defendants’ statement of facts in
their brief on this appeal. We quote:
“On November 30, 2002, a Black inmate commit-
ted battery on a correctional officer during the morn-
ing yard release on Facility D, Yard 1 (D-1). All
Black inmates on this yard were placed on lock-
down status, and programming was suspended pend-
ing an investigation into this incident. The investiga-
tion revealed that the November 30th attack was
premeditated and a planned assault.
“On December 29, 2002, prison officials received
information about inmates planning assault against
staff at HDSP, and the entire prison was placed on
lock-down status pending investigation, searches,
and further administrative review. The investigation
into this threat indicated that the Black prison gang
known as the Black Guerilla Family (BGF) was
responsible for planning acts of violence towards
staff at HDSP. As a result, approximately 100
inmates determined to be either members, affiliates,
associates, suspected gang sympathizers, or other-
wise in communication or contact with the BGF and
their respective cell-mates, including Richardson,
were placed in administrative segregation pending an
investigation in this matter. Shortly thereafter, offi-
cials determined that the report relied upon was fab-
ricated by a correctional officer.
“On January 16, 2003, the entire institution,
including those Black inmates placed in administra-
tive segregation on November 30, 2002, resumed
normal programing.
918 RICHARDSON v. RUNNELS
“On January 18, 2003, a correctional officer was
the victim of an assault and an attempted assault by
two Black inmates. Due to the seriousness of this
incident, all Black inmates on D-1 were placed on
lock-down pending an investigation into the inci-
dent. On March 5, 2003, the investigation was con-
cluded with the determination that this assault was
an isolated incident. Officials instituted an incremen-
tal release, and the Black inmate population on D-1
returned to normal program on March 14, 2003.
“On April 8, 2003, a Black inmate committed bat-
tery on two correctional officers resulting in serious
bodily injury, and another Black inmate was deter-
mined to be a suspect in the conspiracy to commit
battery on staff. Due to the seriousness of this inci-
dent, all Black inmates on D-1 were placed on lock-
down pending an investigation into the incident. The
investigation revealed that inmates associated with
the “Crips” disruptive group were responsible for the
batteries, and there was no indication of any tension
or threat between the other Black groups on Facility
D and staff. [ . . . ] On May 29, 3003, the Black
inmate population on D-1 was released from lock-
down, with the exception of inmates with a connec-
tion to the Crips. On or about August 5, 2003, after
an incremental unlock, the D-1 Crip inmate popula-
tion was returned to normal programing.
“On June 7, 2003, an incident occurred in the
Facility D dining hall involving Southern Hispanic
inmates. Numerous inmates from all ethnic groups
refused to promptly comply with staff’s orders, and
a subsequent search of the dining hall revealed seven
inmate-manufactured weapons. As a result, all D-1
inmates were placed on lock-down status pending an
investigation into the incident. On June 25, 2003,
normal programing was resumed, except that the
RICHARDSON v. RUNNELS 919
inmates affiliated with the Crips disruptive group,
locked-down as a result of the April 8, 2003, inci-
dent, remained on lock-down.
“On August 6, 2003, two separate inmate-on-
inmate attacks occurred involving the use of inmate-
manufactured weapons. One incident involved White
inmates and the second incident involved inmates
associated with the Crips. All D-1 White inmates
and all D-1 Black inmates associated with the Crips,
were placed on lock-down status pending an investi-
gation into these two incidents. The investigation of
the Crip-affiliated inmate incident indicated that this
was an isolated incident between two specific
inmates. After signing an unlock agreement repre-
senting their desire for positive programing, all Crip-
affiliated inmates were returned to normal program
on August 19, 2003.”
As indicated by the ellipses in the quotation describing the
April 8, 2003 incident, a sentence has been omitted from the
quoted statement of facts. The omitted sentence reads, “Be-
cause Richardson’s probation report reflected a Crip member-
ship, he was locked-down whenever the Crip inmate
population was locked-down.” This sentence is cast in doubt
by an Appeal Decision by Chief Deputy Warden Felker
addressed to Richardson, which states: “During an interview
with Lt. Rath, it was explained to you that there was no docu-
mentation in your central file that reflects any involvement
with the disruptive group CRIPS. Your recent lock down was
caused by you having a cellmate who is a documented asso-
ciate of this group. . . . You have since gone to Unit Classifi-
cation Committee on August 11, 2003, and a complete review
of your file was done. There is a probation report that states
you are an associate and this will not be removed. There is no
corroboration or paperwork that connects you with any prison
gang. Per Facility Captain Wong, your CDC § 12 was updated
and your gang status of being a CRIP has been deleted.”
920 RICHARDSON v. RUNNELS
PROCEEDINGS
Pro se and in forma pauperis on September 15, 2003, Rich-
ardson filed his complaint under 42 U.S.C. § 1983 after
exhausting his administrative remedies. In response to his
amended complaint of January 31, 2005, the defendants on
March 1, 2006 moved for summary judgment. Richardson did
not file an opposition. On June 6, 2006, Magistrate Judge
Gregory G. Hollows recommended that the motion be
granted. Richardson filed objections. On August 25, 2006, the
district court vacated the magistrate judge’s findings and rec-
ommendations and gave Richardson thirty days to file an
opposition. He did so on September 21, 2006 but did not obey
Eastern District Rule 56-260 requiring a party opposing sum-
mary judgment to specify what facts were disputed or admit-
ted. He did file “Plaintiff’s Response to Defendants’ Motion
for Summary Judgment,” setting out his version of the facts
relating to the lockdowns. The district court then adopted in
full the findings and recommendations of Magistrate Judge
Hollows.
Richardson, still pro se, appealed. This court appointed pro
bono counsel to represent him.
ANALYSIS
Race-driven action by State officials. We do not deal with
the unexhausted claims of retaliation. See 42 U.S.C.
§ 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1200 (9th
Cir. 2002) (per curiam) (district court must dismiss a case
without prejudice “when there is no presuit exhaustion,” even
when there is exhaustion while the suit is pending). The facts
presented by the defendants show that, in several instances,
assaults that were believed to be perpetrated or planned by
prisoners who were African-American led to the lockdown of
all African-American inmates in a particular unit of the
prison, among whom was Richardson. The defendants appar-
ently believe that without showing any linkage between the
RICHARDSON v. RUNNELS 921
perpetrators and the prisoners subjected to the lockdown, it
was enough to assume that race alone tied together the perpe-
trators and the larger group. An assumption of this kind is
grounded on race.
In the course of the oral argument on appeal, this court
explored the existence of this assumption with counsel for the
defendants. The court repeatedly asked why the prison locked
down all the African-Americans in Facility D when only one
or two African-Americans were involved in an incident. This
colloquy ended with this exchange:
The Court: “Okay, but aren’t [prison administrators]
required to come forward with some explanations for
choosing a group instead of another group? Some
explanation?”
Counsel: “I thought the fact that it was, that when it
was, race-based.”
[...]
The Court: “[The statements made by the adminis-
tration say] that we locked down black people
because they were black.”
Counsel: “Yes, because the blacks were the ones
who were, who were at risk. These inmates were the
ones creating the security risk.”
The Court: “That, I mean, that is just a flatly racist
statement.”
Counsel: “Of course it is. This was a race-based
security decision.”
[1] In February 2005 the Supreme Court announced a
strict-scrutiny standard for racial classifications in prisons,
922 RICHARDSON v. RUNNELS
requiring the government to prove that such measures be nar-
rowly tailored to further a compelling governmental interest.
Johnson v. California, 543 U.S. 499, 505-07 (2005). Defen-
dants argue that at the time of the lockdowns, the reasonable-
ness standard applied. Johnson v. California, 321 F.3d 791,
798-99 (9th Cir. 2003). We are now addressing only the con-
stitutional issue as no qualified immunity question is before
us, so the Supreme Court’s 2005 Johnson decision is the rele-
vant precedent. We note that even under the weaker standard,
which may govern the qualified immunity question, the asser-
tion that it was sufficient for prison officials simply to believe
there to be a link between an individual incident perpetrated
by one or two inmates, and the risk of violence from all the
African-American prisoners in Facility D, with no evidentiary
basis whatever indicated for that belief, falls short.
[2] Moving for summary judgment, the defendants had the
burden of showing that on undisputed facts, they were entitled
to prevail. See Fed. R. Civ. P. 56; Ellison v. Robertson, 357
F.3d 1072, 1075 (9th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986)). In this case, under
Johnson, the defendants had to show that reasonable men and
women could not differ regarding the necessity of a racial
classification in response to prison disturbances and that the
racial classification was the least restrictive alternative (i.e.,
that any race-based policies are narrowly tailored to legitimate
prison goals). See Johnson, 543 U.S. at 505. They have failed
to carry this burden on Richardson’s equal protection claim,
as they have made no evidentiary showing at all concerning
the basis for regarding all African-Americans as a security
risk when one or a few African-American inmates are respon-
sible for an assault.
Cruel and unusual punishment by State officials. Richard-
son claims deliberate indifference by officials to his need for
exercise and therefore a violation of the Eighth Amendment.
The test is that “the official knows of and disregards an exces-
sive risk to inmate health or safety; the official must both be
RICHARDSON v. RUNNELS 923
aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also
draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). If the prison allots a standard number of hours per
week for exercise, the prison officials are aware that denial of
this exercise for a substantial period creates an excessive risk
to a prisoner’s health. Allen v. Sakai, 48 F. 3d 1082, 1088 (9th
Cir. 1995).
[3] In their brief, the defendants concede that “exercise is
one of the basic human necessities protected by the Eighth
Amendment.” The defendants further concede that the consti-
tutional adequacy of the exercise provided depends upon “the
individual facts of each case.” The defendants observe that a
thirty-day emergency lockdown has been held not to violate
the Eighth Amendment. Hayward v. Procunier, 629 F.2d 599,
603 (9th Cir. 1980). The cumulative total of the lockdowns
here, however, amounts to much more than thirty days. Indis-
putably, prison officials have, and must have, discretion to
deal with disruption and they deserve deference in their exer-
cise of this discretion. Bell v. Wolfish, 441 U.S. 520, 547
(1979); Norwood v. Vance, 572 F.3d 626, 629-30 (9th Cir.
2009). But the facts justifying the exercise of discretion
remain to be established at trial.
In Norwood, we considered a similar Eighth Amendment
claim and noted the context-sensitive nature of this type of
claim. Norwood is not controlling in this appeal because it
was decided under the rigorous and defendant-friendly rules
of qualified immunity. See id. at 633. Here, we do not reach
qualified immunity because the issue has never been
addressed by the district court. Schneider v. County of San
Diego, 28 F.3d 89, 93 (9th Cir. 1994) (declining to reach
qualified immunity where “[t]he district court granted sum-
mary judgment without reaching the immunity issues”
because they “should be addressed in the first instance by the
district court”). Nonetheless, as in Norwood, claims involving
924 RICHARDSON v. RUNNELS
a prisoner’s right to exercise require a full consideration of
context, and thus a fully developed record.
[4] Due process. Richardson focuses on his administrative
segregation as a result of his suspected involvement with the
Black Guerilla Family. California Code of Regulations Title
15 §§ 3335 and 3336 create a liberty interest in freedom from
arbitrary segregation. Toussaint v. McCarthy, 801 F.2d 1089,
1097-98 (9th Cir. 1986). To deprive Richardson of his liberty
by segregation required an informal hearing in which he was
informed of the charge and allowed to present his views. Id.
at 1100-01. Such a hearing was not held.
[5] The defendants respond by arguing as if Richardson
alleged that all the lockdowns denied him due process. But
that is to exaggerate his claim. The defendants offer no expla-
nation for Richardson’s segregation from January 1 to January
16, 2003. But it would be difficult to conclude that this extra
deprivation of liberty, arbitrary as it was, “impose[d] atypical
and significant hardship on the inmate in relation to the ordi-
nary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). We affirm the judgment on this claim.
The judgment of the district court on Richardson’s claim of
a violation of due process is AFFIRMED. The district court’s
judgment on his equal protection and Eighth Amendment
claim is REVERSED. The case is REMANDED for trial.
Each party shall bear its own costs on appeal.