Dissenting:
“[0]nly the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In these cases, the deprivations of shelter were necessary and the alleged deprivations of adequate food, water and sanitation were not wanton. I therefore dissent.
Shelter
It is well-settled that “[p]rison officials should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline to maintain institutional security.” Whitley, 475 U.S. at 322, 106 S.Ct. 1078 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) (emphasis added). Indeed, we have held that “prison officials have a right and a duty to take the necessary steps to reestablish order in a prison when such order is lost.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir.1982) (emphasis added). The deference accorded to prison officials “extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline.” Whitley, 475 U.S. at 322, 106 S.Ct. 1078. “It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.” Id.
The prison officials made considered choices that penological and safety concerns mandated that inmates be kept outdoors during the investigations of the riots. The decisions were necessary steps to reestablish order in the prisons where order had been lost. The prisoners in both of these cases rioted and caused significant damage to the prison facilities. In Johnson, the rioters set fires to their own dwellings, including tents and dormitories, and various buildings that housed offices and other facilities, including records, mail and property, security, programs, education, the law library, and the church. The tents and buildings were destroyed in their entirety. In all, the rioting inmates destroyed State property worth over one million dollars. Similarly in Baca, a group of 70-80 inmates engaged in widespread fighting, throwing rocks, and breaking fire extinguishers and windows.
In both cases, the prison officials believed it necessary to keep the inmates together until the riot participants could be segregated from the non-participants. The officials properly chose to keep the inmates outdoors in a large unobstructed field. No safe indoor facilities were availr able; the ability of prisoners to obtain *736potential weapons was greatly reduced; and it enabled the officers to guard the inmates from a safe distance. These objectives were neither illegitimate nor does the evidence suggest that their decisions were made in bad faith. Therefore, these decisions are entitled to extensive deference. We should not at this distance freely substitute our judgment for theirs.
Our deference of course has limits. A line must be drawn somewhere. For example, bad faith might be presumed in the absence of extraordinary circumstances if prison officials asserted that inmates needed to be maintained in this position for months. Four days, however, is relatively brief and not an unreasonable length of time to restore order to a prison following a riot. Cf. Hoptowit, 682 F.2d at 1259 (lockdown after riot lasted at least three weeks). Thus, in these cases, the deprivations of shelter were for reasonable periods of time, during which the prison officials made considered choices consistent with sound penological and safety concerns.
Food, Water and Sanitation
The alleged deprivation of adequate food, water and shelter was not wanton. Whether conduct can be characterized as “ ‘wanton’ depends upon the constraints facing the official.” Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The general rule is that a prison official acts wantonly with respect to supplying inadequate food, water and shelter if he has actual knowledge of an excessive risk to inmate health or safety and deliberately disregards that risk. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (articulating the “deliberate indifference” standard). There is an “emergency exception” to the general rule that applies to these cases. It provides that when prison officials are confronted with constraints “materially different” than those they generally face, wantonness consists of acting “maliciously and sadistically for the very purpose of causing harm.” Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321. Here, during the time that the inmates were being held outdoors the prison officials were faced with constraints “materially different” than those they generally face. The proper inquiry, therefore, is whether the alleged deprivations were done maliciously and sadistically for the very purpose of causing harm. They were not.
The exhaustive videotape evidence shows that, despite the unusual situation confronting the prison officials, they attempted to provide the inmates with adequate food, water and sanitation during the entire time the inmates were being held outside. For example, two portable toilets were brought into the yard the morning after the riots in Johnson. The complaint alleges that this was too late because some inmates had already urinated or defecated into their clothing by that time. The officials were quite aware that it was necessary to acquire portable toilets that evening and were able to get them on-site the very next day. They did not act maliciously and sadistically for the very purpose of causing harm. Rather, because of the rioting, they were reacting to a situation materially different than what they would normally encounter on a day to day basis.
The complaint properly alleges that the two portable toilets could not meet the demand of so many prisoners and were often unusable despite periodic servicing. However, sanitation was so limited for only one morning. By the afternoon after the riot, the prison officials had repaired and made available some of the indoor toilets that had been damaged during the riots. The prison officials did not act maliciously and sadistically by providing only two portable toilets during the morning after the riot while the permanent facilities were rapidly being repaired.
The inmates alleged that the food was inadequate because it was left in the sun for several hours prior to distribution. This, at best, is doubtful. Several hours in *737the sun usually does not render a sack lunch inedible. Nevertheless, even were it true that the lunches were “inedible” due to a delay, the delay was partially a consequence of being forced to pass out sack lunches to over 600 inmates while maintaining security. Moreover, it should be irrefutable that one who has substantially disrupted a restaurant should not complain about the service being slow.
The inmates also claimed, despite videotape evidence showing water routinely being provided to the inmates throughout their time in the yard, that they did not have adequate access to water. The majority simply dismisses the videotape evidence by saying that it merely shows that many inmates, but not necessarily all, received water. No doubt some inmates got water before others. Also, it is likely that the water service was slow. Nonetheless, there is no showing that the distribution of water discriminated between the participants and the non-participants in the riots.
In sum, the complaints do not show that the prison officials acted maliciously or sadistically for the very purpose of causing harm. At most the evidence shows that the temporary conditions following the riots was not perfect. How could it have been otherwise? The majority simply ignores the constraints the prison officials were faced with and presumes that conditions should have been normal the moment the officials “were able successfully to remove the prisoners from the buildings and secure them in the prison yard.” Maj. Op. 734. This approach is unrealistic because it improperly holds the prison officials to a standard of conduct that will be difficult for them to meet. Accordingly, I dissent.